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How UK libel laws undermined Sunday Times in Lance Armstrong case How UK libel laws undermined Sunday Times in Lance Armstrong case
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The legal battle with disgraced cyclist Lance Armstrong which cost the Sunday Times almost £1m after it suggested he took banned substances shows how difficult it is to pursue investigations under British libel laws, with the burden of proof heavily stacked against publishers, according to those who worked on the original stories.The legal battle with disgraced cyclist Lance Armstrong which cost the Sunday Times almost £1m after it suggested he took banned substances shows how difficult it is to pursue investigations under British libel laws, with the burden of proof heavily stacked against publishers, according to those who worked on the original stories.
Since Armstrong was stripped of his seven Tour de France titles and banned from the sport for life last autumn for doping, the Sunday Times has been in touch with his lawyers seeking to recoup the £300,000 contribution it made to his legal costs and its own legal bill of £600,000. It has also added another £100,000 for interest.Since Armstrong was stripped of his seven Tour de France titles and banned from the sport for life last autumn for doping, the Sunday Times has been in touch with his lawyers seeking to recoup the £300,000 contribution it made to his legal costs and its own legal bill of £600,000. It has also added another £100,000 for interest.
Lawyers and journalists who worked on the series of stories which landed the paper in court back in 2004 recall how the published article was watered down so much because of libel fears, it triggered the brief resignation of chief sports writer David Walsh, a journalist who has since emerged as a hero in the Armstrong scandal.Lawyers and journalists who worked on the series of stories which landed the paper in court back in 2004 recall how the published article was watered down so much because of libel fears, it triggered the brief resignation of chief sports writer David Walsh, a journalist who has since emerged as a hero in the Armstrong scandal.
The News International Sunday title also scrapped, on the advice of lawyers, a four-page extract from LA Confidentiel, a book about Armstrong by Walsh and French sports writer Pierre Ballester, which was due to be published in France where the libel laws are less onerous.The News International Sunday title also scrapped, on the advice of lawyers, a four-page extract from LA Confidentiel, a book about Armstrong by Walsh and French sports writer Pierre Ballester, which was due to be published in France where the libel laws are less onerous.
"[Walsh] was very excited about the serialisation. Most of his contacts were in English-speaking territories, the UK and America, and for him this was important as no UK publisher had taken the book up. He had produced 11,000 words [for the spiked Sunday Times piece] which he though represented the best of the book," said Alan English, the paper's then deputy sports editor, who was also named in Armstrong's 2004 law suit."[Walsh] was very excited about the serialisation. Most of his contacts were in English-speaking territories, the UK and America, and for him this was important as no UK publisher had taken the book up. He had produced 11,000 words [for the spiked Sunday Times piece] which he though represented the best of the book," said Alan English, the paper's then deputy sports editor, who was also named in Armstrong's 2004 law suit.
English recalled Walsh's fury when News International in-house lawyer Alastair Brett advised against publication unless he got affidavits from his sources.English recalled Walsh's fury when News International in-house lawyer Alastair Brett advised against publication unless he got affidavits from his sources.
"David got very angry. He thought these people had already put themselves out on a limb. One of these women [a source] was on the phone in tears," he said. "It was very tense. He admits himself now he was too close to the story. He wasn't sitting back and recognising the libel laws were prohibitive."David got very angry. He thought these people had already put themselves out on a limb. One of these women [a source] was on the phone in tears," he said. "It was very tense. He admits himself now he was too close to the story. He wasn't sitting back and recognising the libel laws were prohibitive.
"I remember walking out with him to his car. There wasn't a word said. We got to the car and he said that he was resigning.""I remember walking out with him to his car. There wasn't a word said. We got to the car and he said that he was resigning."
The extract from the book did not appear, but English instead spent Saturday with the paper's lawyer writing a story based on LA Confidentiel, raising questions about Armstrong's apparently super-human abilities. This was enough to persuade English to change his mind about resigning. The extract from the book did not appear, but English instead spent Saturday with the paper's lawyer writing a story based on LA Confidentiel, raising questions about Armstrong's apparently super-human abilities. This was enough to persuade Walsh to change his mind about resigning.
The full-page article set the scene by telling readers straight away that Armstrong had declared just days before that "Walsh is the worst journalist I know". He added: "There are journalists who are willing to lie, to threaten people and to steal in order to catch me out. Ethics, standards, values, accuracy – these are of no interest to people like Walsh."The full-page article set the scene by telling readers straight away that Armstrong had declared just days before that "Walsh is the worst journalist I know". He added: "There are journalists who are willing to lie, to threaten people and to steal in order to catch me out. Ethics, standards, values, accuracy – these are of no interest to people like Walsh."
In his Oprah Winfrey interview last week, as well as admitting using drugs to win his tour titles, Armstrong was asked if he owed an apology to Walsh. He briefly hesitated, before saying: "I'd apologise to David."In his Oprah Winfrey interview last week, as well as admitting using drugs to win his tour titles, Armstrong was asked if he owed an apology to Walsh. He briefly hesitated, before saying: "I'd apologise to David."
However, Armstrong's determination to silence Walsh back in 2004 led to a two-year legal battle, a trip to Texas by Sunday Times executives and a final legal bill of £900,000, which the paper is now trying to recoup on the basis that Armstrong's action was "fraudulent".However, Armstrong's determination to silence Walsh back in 2004 led to a two-year legal battle, a trip to Texas by Sunday Times executives and a final legal bill of £900,000, which the paper is now trying to recoup on the basis that Armstrong's action was "fraudulent".
Lawyers involved in the 2004 case said the Sunday Times did not stand a chance once the courts decided they had to produce evidence that Armstrong was an actual cheat.Lawyers involved in the 2004 case said the Sunday Times did not stand a chance once the courts decided they had to produce evidence that Armstrong was an actual cheat.
Gill Phillips, one of the Sunday Times lawyers who dealt with the litigation and now director of editorial legal services at Guardian News & Media, which publishes MediaGuardian, said: "The way British libel laws are, the burden of proof lay with the paper. We did not have enough evidence to satisfy the burden of proof on the paper to show Armstrong was guilty. We had this body of very strong, but mainly circumstantial, evidence that was quite hard, but which was not enough to win.Gill Phillips, one of the Sunday Times lawyers who dealt with the litigation and now director of editorial legal services at Guardian News & Media, which publishes MediaGuardian, said: "The way British libel laws are, the burden of proof lay with the paper. We did not have enough evidence to satisfy the burden of proof on the paper to show Armstrong was guilty. We had this body of very strong, but mainly circumstantial, evidence that was quite hard, but which was not enough to win.
"This makes it very difficult for investigative journalism. For all sorts of technical reasons, UK libel law makes it hard to write this sort of story, particularly when the evidence points to guilt, but doesn't actually prove it.""This makes it very difficult for investigative journalism. For all sorts of technical reasons, UK libel law makes it hard to write this sort of story, particularly when the evidence points to guilt, but doesn't actually prove it."
Armstrong's case never came before a jury, but enormous legal bills were racked up as a result of pre-trial hearings in the high court to establish what exactly a jury might be asked to adjudicate on.Armstrong's case never came before a jury, but enormous legal bills were racked up as a result of pre-trial hearings in the high court to establish what exactly a jury might be asked to adjudicate on.
Court papers from 2006 show that Armstrong claimed the article meant he "had taken drugs in order to enhance his performance in cycling competition and by so doing and denying that he had done so was a fraud, a cheat and a liar".Court papers from 2006 show that Armstrong claimed the article meant he "had taken drugs in order to enhance his performance in cycling competition and by so doing and denying that he had done so was a fraud, a cheat and a liar".
Under libel law, a jury would be asked to adjudicate on the level of meaning of the story – a direct accusation that Armstrong had taken drugs would be considered the worst kind of libel were the newspaper unable to prove it was true.Under libel law, a jury would be asked to adjudicate on the level of meaning of the story – a direct accusation that Armstrong had taken drugs would be considered the worst kind of libel were the newspaper unable to prove it was true.
The Sunday Times's defence team, headed by Andrew Caldecott QC, argued that in the Armstrong case, a lesser libel should be considered by any jury, arguing all the article had alleged was "the existence of reasonable grounds for believing a person is guilty".The Sunday Times's defence team, headed by Andrew Caldecott QC, argued that in the Armstrong case, a lesser libel should be considered by any jury, arguing all the article had alleged was "the existence of reasonable grounds for believing a person is guilty".
After two high court assessments and one court of appeal ruling, it was concluded that "once the article was read in conjunction with its headline, photographs and their captions", readers could assume the Sunday Times was accusing Armstrong of being a cheat and a liar and the case would have to go to trial on this basis.After two high court assessments and one court of appeal ruling, it was concluded that "once the article was read in conjunction with its headline, photographs and their captions", readers could assume the Sunday Times was accusing Armstrong of being a cheat and a liar and the case would have to go to trial on this basis.
Once the level of meaning was set so high, the Sunday Times decided it could not risk a jury trial – it did not believe the evidence it had, although strong, was enough to satisfy a jury that Armstrong was a cheat.Once the level of meaning was set so high, the Sunday Times decided it could not risk a jury trial – it did not believe the evidence it had, although strong, was enough to satisfy a jury that Armstrong was a cheat.
The paper's then lawyer, Phillips, and then managing editor Richard Caseby, were deputed to fly to Austin, Texas to try and strike an out-of-court settlement.The paper's then lawyer, Phillips, and then managing editor Richard Caseby, were deputed to fly to Austin, Texas to try and strike an out-of-court settlement.
Phillips recalled how the meeting lasted just 15 minutes, after it became clear no deal was on the horizon.Phillips recalled how the meeting lasted just 15 minutes, after it became clear no deal was on the horizon.
In the end, Caseby seized his chance when he heard that Armstrong's lawyer, Tim Herman, was on a golf trip to the UK. Armstrong was being represented by one of the UK's most feared celebrity lawyers, Keith Schilling. But Caseby cut a deal with Herman, ending a two-year legal battle.In the end, Caseby seized his chance when he heard that Armstrong's lawyer, Tim Herman, was on a golf trip to the UK. Armstrong was being represented by one of the UK's most feared celebrity lawyers, Keith Schilling. But Caseby cut a deal with Herman, ending a two-year legal battle.
Walsh was a central figure behind the scenes last week when Oprah drew a public confession out of Armstrong. Her senior producer, Jenna Kostelnik, spoke to him for 20 minutes about the cyclist's darker side.Walsh was a central figure behind the scenes last week when Oprah drew a public confession out of Armstrong. Her senior producer, Jenna Kostelnik, spoke to him for 20 minutes about the cyclist's darker side.
But Walsh also said he wanted his own face-to-face encounter with Armstrong, who he interviewed before doping became an issue. "I do not expect or want an apology, but I would like a third meeting because I have got a lot of questions," he wrote in the Sunday Times.But Walsh also said he wanted his own face-to-face encounter with Armstrong, who he interviewed before doping became an issue. "I do not expect or want an apology, but I would like a third meeting because I have got a lot of questions," he wrote in the Sunday Times.
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