The Complete Prose of T. S. Eliot: The Critical EditionVol. 5: Tradition and Orthodoxy, 1934-1939

Authors and the Law of Libel: Plea for Reform. To the Editor of The Times (13 Mar 1936)

The Times(13 Mar 1936) 10

Sir, – In view of the increasing numbers of actions brought against authors and publishers we submit that the time has come for drastic reforms in the law relating to literary libel. ¹ Under existing conditions many of the great classics of the past could not have been published without grave risk of suppression, since it is mainly authors of repute, who are endeavouring to give credible pictures of contemporary life, whose work is in jeopardy. A serious threat to the quality of English literature obviously exists when the freedom of expression of reputable authors is limited by a fear of flimsy or malicious charges against which they are virtually unprotected.

At present the law is so heavily weighted against authors that it is substantially true to say that they can make no effective defence to charges as claims made against them in respect of their published works. By no means the only difficulty, although a very common one, arises where the plaintiff alleges that the description in a book of some purely fictional character constitutes a libel on himself. To make out a case, he has only to procure a witness or two to swear that they “recognize” the character in question as himself. The witnesses may be ignorant, misinformed, malicious, or even parties to thinly disguised blackmail, but their evidence will suffice to throw upon the author and publisher the whole cost of proving that the character cannot reasonably be identified with the plaintiff. We are of the opinion that no action should lie without proof that the defendant intended to refer to the plaintiff, and that damages other than nominal damages should not be awarded except to the extent that actual damage is proved to have been sustained. As the law stands the way is open to people who fancy or pretend that they recognize touches of themselves in a character to make easy money, since, even if the author has never heard of or seen the plaintiff, he can still be mulcted in heavy costs and damages.

Further, we would suggest that the legal machinery in its relation to all actions for libel should be greatly simplified. In particular, we suggest that the verdict be taken out of the hands of juries. Juries are too easily influenced in certain directions, and it is difficult to bring home to them the importance of protecting the freedom of literature in general and in particular the right to express unpopular views. Moreover, they have little opportunity of reading the book and forming a considered opinion.

We are of opinion, further, that something should be done to discourage the bringing of obviously flimsy or conspiratorial cases. Under present conditions the bringing of a case to trial means that both author and publisher stand to lose heavily whether they win or lose the actual case, and for this reason publishers tend to settle out of Court, even at the last minute and after months of costly legal inquiry and preparation. In most instances the author (under contract) is not only liable for 50 per cent. of the expense incurred, but has to suffer the annoyance and harmful publicity to his reputation by reason of Press reports, which almost invariably convey the impression that the defendants have settled because they had no case, rather than because they sought to avoid the ruinous expense of litigation. Moreover, all such reported settlements are a direct incentive to unscrupulous persons alike among laymen and among members of the legal profession.

We suggest as a remedy that the Courts should be empowered at their discretion in any case where the action fails to award in a summary way, in addition to the costs, a sum of damages to the defendant wherever the circumstances are similar to those in which an action for damages for malicious...