Should the British Spectator Bow to Lawfare?

A guest post by AKUS

It is now common knowledge among those who care about these things that Melanie Phillips will no longer write for the UK Spectator newspaper and has started her own blog.

I have no more information than Melanie has made available on her blog (Why I left the Spectator) and in the two notices that have appeared about this change. One is an apology apparently issued under legal duress by the Spectator  and the other is at CiF Watch  as an update to an article  that dealt with the UK expelling an Israeli diplomat over the Dubai incident (see both notices below).

Melanie writes the following in her new blog about the Spectator’s apology, and that is all I intend to mention regarding the actual severing of ties:

For legal reasons, I cannot go into the details. Suffice it to say the apology misrepresented my post and has thus given rise to the false assumptions that are now being published. Those interested to learn more can do so in the update on this CiF Watch post, the original quote from which led to this apology.

What concerns me is an issue of even greater importance. This the use of lawfare  in the UK to shut down the freedom of expression and the freedom of the press that is particularly and primarily invoked whenever Israel is involved, even obliquely, or an article sets off the now standard  hair-trigger response from Moslems over a perceived slight against their religion.  Since I thought this issue interesting, especially the apology provided by the Spectator and Melanie’s response, I tried to find the article which apparently resulted in Melanie severing her ties with the Spectator. 

It turns out that it was not that easy to find Melanie’s article.

After a great deal of searching, I found it on the internet at sites not affiliated with the Spectator or Melanie Phillips (remember – “the internet never forgets”). It was apparently an article headlined “Well, There’s a Surprise”. You can try to find it at the following link to the Spectator’s website:

And here is an even greater surprise – the link leads to a completely blank webpage. Try it for yourself. Click on the link or paste it into your browser’s address line.

So here is the real issue, as bad as it is that the Spectator has suffered a significant loss of a brave alternative voice. A British newspaper has apparently agreed to remove published content from its website under duress.

The use of the English law of libel, the most hostile in the world to press freedom and the most loaded in favour of the complainant and against the writer, has been used as a means of shutting down debate, particularly in matters to do with Israel or Islam. Lawfare achieves this by simply causing so much difficulty for publications, by tying them up in often ludicrously expensive lawsuits which are so very difficult to win that they become reluctant to publish anything at all on the subject.

Thus a paper published in a Western democracy was apparently compelled to actually erase content to change the historical record in response to what was obviously some form of legal pressure. This is clearly a form of what has become known as “lawfare”. It is almost always selectively used in the UK against Israelis and supporters of Israel by Palestinian supporters (including Jews such as Daniel Machover) determined to delegitimize Israel and its citizens and those who support them.  For example, it has been used as a weapon to prevent Israeli politicians such as Tzipi Livni and others  from entering the UK under threat of arrest for “war crimes”, a charge in light of what the UK is doing every day in Iraq, Afghanistan, and Libya as to be ludicrous if not so serious. The threat of legal action includes the possibility of being forced to pay substantial damages and legal costs. Even if the suit were to be dismissed in court, the proceedings and costs may be enough to deter the defendant from making its case in court.

It is also not the first time lawfare has been used against the Spectator in connection with Islam and Hamas. An earlier case similarly involved a libel suit by Hamas supporter and Moslem Brotherhood member Mohammed Sawalha (see below) against the Spectator and Stephen Pollard for publishing an article called “Demos and Genocide”. In this case, too, the the Spectator apologized (and, as in this new case, the original article cannot be found on the web):

Lawfare in the UK: Who Is Behind It This Time?

Britain’s pernicious libel laws are in the spotlight again: recently the Spectator, a weekly publication focusing on politics, culture and the arts, settled an ongoing dispute with IslamExpo following legal threats. … Mohammed Sawalha is a Palestinian who fled to London in 1990 after discovering the Israeli authorities wanted to arrest him. An authoritative investigation for the BBC by John Ware – a formidable and robust journalist – made a series of startling revelations about Sawalha; they alleged that Sawalha “master minded much of Hamas political and military strategy” from London; then went on to describe him as a “fugitive Hamas commander.”

Sawalha never sued the BBC over those allegations; instead he chose to focus on the substantially smaller resources of the Spectator. Of course, there is little for Sawalha to actually complain about when the Muslim Brotherhood’s own website, IslamOnline, describes him as “manager of the political committee of the International Organization of the Brothers [i.e. the Muslim Brotherhood] in Britain.”*

In the Pollard case, the agreement also included payment of damages and costs, and removal of the offending article. In what many must have interpreted as a Churchillian bit of British humor, the Spectator’s apology read:   

Stephen Pollard and the Spectator apologise for the unintended and false suggestion in a blog published on 15 July 2008 that Islam Expo Limited is a fascist party dedicated to genocide which organised a conference with a racist and genocidal programme. We accept that Islam Expo’s purpose is to provide a neutral and broad-based platform for debate on issues relating to Muslims and Islam.

In yet another case, the same Mohammed Sawalha brought a similar suit against the Spectator and Melanie Phillips for an article (which has also been removed) published in 2008, “Just Look What Came Crawling Out”. The outcome in 2010 was an out of court settlement with another apology from the Spectator, complete with “substantial” damages. (The Guardian, of course, was only too willing to report the results of this case against its erstwhile employee).

Now, freedom of expression, and specially freedom of the press, is the cornerstone of what makes democracy work and what differentiates it most clearly from any other form of governance.  The ability to shine light into the dark corners of society is critical to society’s health. Even when commentary is mistaken, or even vehemently opposed to what a democratic society stands for, it is best to have it out in the open where it can be challenged rather than festering in the dark. The UK has been, till now, one of the foremost protectors of this basic right, as is the USA, of course.

Yet in the case of the Spectator we have an example where entire articles have “vanished” from a newspaper’s website. It is uncomfortably reminiscent of the period in the Soviet Union where history books were rewritten, photographs altered to remove undesirables, and newspapers firmly under control of political entities to ensure that only the “correct” information appeared.

Not only did Melanie (or the Spectator) not write the CiFWatch column which seems somehow to form the source of the Spectator’s decision to remove her article, the apparently offending comment was merely cited in her own article. CiFWatch denies the allegation apparently made to the Spectator about the intention of its article and points out in its “update” regarding the Spectator’s craven apology that:

 “The ‘allegation’ referred to in this apology refers to the post above from which Melanie Phillips quoted. As can be seen, however, this post made no such allegation.” 

So it appears that even citing something written by someone else was enough for legal pressure on the Spectator to cause the Spectator to apologize for something Melanie had not written and which had not appeared in its own paper, and to remove the “offending” article.

I do not believe that such an action could pass unchallenged in the USA. The only case that remotely parallels it is the cowardly decision by the Yale Press  to remove cartoons of Mohammed from a book it was publishing. The common thread is the confluence of references to Islam and Arab countries. As bad as Yale’s action was, it was due to the fear of violent and even murderous retaliation by Islamic extremists rather than a legal challenge. Nevertheless, after Yale took legal counsel, it was only willing to let the author see counsel’s recommendation under duress:

Aside from the disagreement about the images, Ms. Klausen said she was also disturbed by Yale’s insistence that she could read a 14-page summary of the consultants’ recommendations only if she signed a confidentiality agreement that forbade her from talking about them. “I perceive it to be a gag order,” she said, after declining to sign. While she could understand why some of the individuals consulted might prefer to remain unidentified, she said, she did not see why she should be precluded from talking about their conclusions.

There are strict laws that guard the freedom of expression and freedom of the press in the USA. In fact, in response to an attempt to enforce British lawfare on an Israeli-American researcher, Rachel Ehrenfeld, writing in the US, special laws have been passed  by States and Congress to further protect these rights after she was sued in the UK for her book “Funding Evil“. Dr. Ehrenfeld alleged that Saudi billionaire Khalid bin Mahfouz had financed al Qaeda through his bank and charitable organization. He used the threat of expensive lawfare to force the removal of her book from, among other places, the Cambridge University Library in an action eerily predating the similar ban on books printed in Israel by Dunbartonshire – another use of lawfare, this time at the county level.

First passed in several states, in Congress, the law, also known familiarly as “Rachel’s law”, was passed as the SPEECH law S. 3518 and is designed to prevent foreign groups from undermining First Amendment rights of free speech by resorting to lawfare that contravenes the First Amendment. Incidentally, his law will, of course, protect CiFWatch against any attempt at such action by whoever is behind the legal action against the Spectator.

Now it is time for the British government and people to take action to put an end to similar pernicious activity in their own country. It undermines the British belief in freedom of expression and is allowing Islamic groups to insidiously and step by step institute the very restrictions we so abhor in the dictatorships of the Middle East. The previous British government indicated it would make the necessary changes, but this has not happened as yet.

If all that is necessary for evil to triumph is for good men to stay silent, how much more true is it if a newspaper agrees to be silenced?

I call on the Spectator to reinstate the article it removed as an example of its willingness to protect its own right to freedom of expression, and to lead a campaign to change the law in Britain to make sure that such an evil, anti-democratic, and pernicious act can never be forced on a British newspaper again.

Appendix: The apology posted by the Spectator to Alastair Crooke and CiFWatch’s update to an article posted on March 28, 2010:

The Spectator: (still visible on Sunday June 26th, 2011)

An apology to Alastair Crooke

A blog by Melanie Phillips posted on 28 January 2011 reported an allegation that Alastair Crooke, director of Conflicts Forum, had been expelled from Israel and dismissed for misconduct from Government service or the EU after threatening a journalist whose email he had unlawfully intercepted. We accept that this allegation is completely false and we apologise to Mr Crooke.

CiFWatch update to: The UK’s Disproportionate Response

(Note – the CiFWatch article was published on March 28th 2010, long before Melanie left the Spectator and had no connection to her or the Spectator).

UPDATE: The Spectator has published an apology on its site which reads as follows:

A blog by Melanie Phillips posted on 28 January 2011 reported an allegation that Alastair Crooke, director of Conflicts Forum, had been expelled from Israel and dismissed for misconduct from Government service or the EU after threatening a journalist whose email he had unlawfully intercepted. We accept that this allegation is completely false and we apologise to Mr Crooke.

The ‘allegation’ referred to in this apology refers to the post above from which Melanie Phillips quoted. As can be seen, however, this post made no such allegation. Insofar as an inference could be drawn to that effect, we would like to make it clear that no such implication was intended and no such inference should be drawn. However, neither CiF Watch nor Sheila Raviv made any such allegation, and consequently the Spectator’s statement is inaccurate.

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