The Libel Case That Had to Be Fought

Behind the scenes of The Spectator's two-year legal battle

Britain’s libel laws do not favour journalists. If you are sued, even vexatiously, it costs money to fight - and even if you win, you are by no means sure to recover all of your costs. As I found out the hard way, the person suing you could be on a no-win, no-fee deal: so they could have nothing to lose. Either you run a boring magazine or you stand are ready to fight. And my 15 years as editor involved no end of those fights - one of which was resolved this week. So I can, now, discuss the details.

In the late summer of 2022, riots eerupted in Leicester involving street battles between groups of Hindu and Muslim men. Douglas Murray wrote about them, and how sectarian tensions were inflamed by the arrival of Mohammed Hijab:-

“Soon charming people like Mohammed Hijab, who rotates between presenting himself as a reasoned interlocutor and a street agitator, arrived on the scene… This week Hijab cropped up to whip up his followers. Among other things he told them that Hindus are ridiculous people, not least because of their belief in reincarnation. Hijab claimed that the Hindus must live in fear because they have been reincarnated as such ‘pathetic, weak cowardly people.’ ‘I’d rather be an animal,’ he went on.”

Hijab responded with fury. He insisted that he had never mentioned Hindus at all. He said he had used the word “Hindutva” — referring to a political ideology. This was his basis for suing for libel and for breach of data protection. He claimed reputational damage, business losses, even that the article had put him in physical danger.

Journalism vs lawfare

We had a choice: settle (pay him money and apologise) or let it go to court, knowing there was a decent chance of us ever recovering full costs, even if we won. The policy at The Spectator has always been to fight. To back down under legal pressure would not just be to betray the magazine’s principles but to invite future claims. If you want to hold shysters to account, you need to be willing to fight when (and it will be when) they come for you. The alternative is to stop writers like Douglas scrutinising the actions of gentlemen like Mr Hijab.

When I became editor in 2009, I knew we faced greater headwinds than ever. It was a post-Leveson world. I moved tostrengthen our defences, rather than dampen our ambition: to tool up for the riskier age. We invested over the odds, in fact-checking and subediting, so we could be as bold as ever. We set up a three-person fact-checking unit, disproportionate for a magazine of our size: but this was a sign of our resolve, rather than caution. We want our writers to go into battle, but to be prepared for it.

At the time, I liked to think our pre-publication checks were stronger than any publication: which should allow us to be bolder. In the trans debate, climate debate and lockdown debate and more. In my view, journalism was splitting into two: click-drivem free stuff which is not really believed (and no sane person would pay for) or the premium journalism where readers know they can rely on every fact stated. Especially extraordinary facts, of which we intended to publish plenty.

The robust checks would also give us confidence in facing challenge from IPSO technicalities (so-called ‘political correction’) and no-win-no-fee lawsuits where chancers sue, hoping the financial odds heavily incentivise the publication to settle. We wanted the lawfare world to know that The Spectator is never bullied; never settles.

Anyway, back to Hijab. I’ll let the Mr Justice Johnson take up the story (from his very-readable ruling)

“The claimant’s fundamental complaint is that it was completely wrong for the second defendant to say that the claimant had ridiculed Hindus. It is true that he did not use the word Hindus. However, it is common ground that he was talking about the opposing group of men who were involved in the disturbances. Once the claimant’s concept of non-Hindu Hindutva is rejected as an unreal construct, everyone who was present (including the claimant) understood that group to be largely, if not overwhelmingly, composed of Hindu men. It was them that he was ridiculing.”

That was the heart of the case. Hijab’s defence relied on the idea that “Hindutva” had nothing to do with Hindus, and that to suggest otherwise was defamatory. But the judge found this argument collapsed under scrutiny.

“The claimant’s explanation is nonsensical. When asked to name anyone in the world who subscribed to the Hindutva ideology but who was not Hindu he was able to give only one name: Benjamin Netanyahu. Later… Tommy Robinson and the second defendant. The reality is that those who subscribe to the Hindutva ideology are overwhelmingly Hindu.”

In other words, this was not some narrow theological debate about an obscure ideology. It was an inflammatory street speech in a volatile city, amid real tensions.

“He, in terms, described them (that is, the Hindu men) as ‘pathetic, weak and cowardly’ such that he would ‘rather be an animal.’ That speech, to a large group of excitable and engaged masked young men, exacerbated the tensions that had spilled over into serious public disorder the previous day.”

And as for Hijab’s own credibility?

“I am satisfied that he lied on significant issues, with the consequence that his evidence, overall, is worthless.”

This was not limited to the meaning of reincarnation. The judge gave a long list of other stories during the trial that Hijab also “lied in respect of”…

1. “The event at Golders Green”

2. “The counter-protest at the rally for Israel”

3. “The seminar on Hinduism at the Sapience Institute”

4. “His repudiation of vigilantism”

5. “His evidence as to the involvement of the Hindutva”

6. “His evidence about his choice of language in his speech”

7. “And his evidence in support of his claim for financial losses.”

That such a character could ever have sued for “reputational damage” on an accurate report about his antics tells you a lot about the libel laws - or, rather, the vulnerability that his legal team thought they had found in the libel laws.

The financial losses were key to Hijab’s claim that he had suffered “serious harm”, the legal threshold for libel. He produced a flurry of emails from three organisations who he said dropped him because of the article. But the judge wasn’t convinced.

“The messages… have the appearance of being contrived for the purpose of these proceedings. In two instances, they are addressed as ‘Dear Mr Hegab’, when the correspondents were well known to the claimant and addressed him, in other contexts, in more natural and less formal terms.”

In one instance, the man cited as pulling out of a contract with Hijab had himself been convicted of fraud. In another, the witness failed to turn up to court despite being summoned. In a third, the man giving evidence hadn't even worked at the relevant organisation at the time. The judge’s conclusion: “no weight” could be placed on any of their claims.

Hijab also claimed he had suffered reputational damage and even received death threats as a result of the article. Again, the judge was unsparing:

“The material that is published by the claimant, including… the video of his speech in Leicester, is at least as reputationally damaging to him as the article. The video shows him, far more vividly than is conveyed by the words of the article, directly whipping up a large group of masked men and ridiculing a central tenet of Hinduism.”

“He said in evidence that (up to a point) controversy increased the number of people who viewed his material and hence the value that could be realised from that content. When he was described as an ‘instigator in chief’, he had t-shirts printed, emblazoned with ‘instigator in chief’, which he sold via an Amazon outlet.”

The judge found there was no credible evidence that Hijbab’s reputation (such as it was) had been harmed — and even if it had, the article would still be protected by the truth defence.

“The claimant knew exactly what he was doing. He chose his words deliberately. He did so in a way that left him room to put forward ‘innocent’ explanations, but those explanations do not withstand scrutiny.”

This is a crucial point: Hijab was careful to throw in verbal technicalities which he thought would allow him to rabble-rouse, while being able to sue anyone who accused him of rabble-rousing.

This is not the first time that The Spectator has gone to court to assert a principle. In 2021, we went to the Scottish Court of Appeal to overturn a court order blocking the release of Alex Salmond’s testimony to the Scottish Parliament inquiry. The order was worded so broadly that it effectively silenced not just MSPs but also journalists. So we intervened. Lady Dorrian ruled in our favour — narrowing the scope of the anonymity order and making clear that the court had never intended to muzzle the press or Parliament.

Both cases illustrate what happens when the law — or the fear of it — is used to intimidate journalism. It often doesn’t take a successful lawsuit to do the damage. The mere threat of legal action, the costs involved, the chilling effect on speech. All of these are hazards. And they fall hardest on smaller titles with smaller budgets: or would be, if we were not backed by proprietors with the stomach for the fight - as it very much is under its new owner. As editor I reported to Andrew Neil, a veteran of some of the greatest battles of the modern history of the free press. His instinct was, always, to fight. In Paul Marshall, the magazine now has a new owner who’s also unlikely to be cowed by the likes of Mr Hijab.

But major decisions were being taken when The Spectator being sold: we had no proprietors and were instead run by ‘independent directors’ whose job was to put us on the auction block and secure a sale. I regarded that as the moment of maximal danger: where corporate caution could force a concession and have us settle, so a new owner would not have an ongoing lawsuit. But our directors realised how important it was to The Spectator that we did not cave to bullies. They not only backed the fight but made a commercial case for it. Even if we lost, it would be worthwhile to send notice that we never do the quick-and-easy deal; that we never sell our honour cheaply; that we always take it to court.

I left The Spectator last October: I have no idea about the final costs of this case or what happens now. All I know is that fighting such lawsuits is not glamorous. This has meant two years of tedium, and it was still going when I left the magazine. It costs a fortune: but freedom isn’t free. There will be more rabble-rousers to expose; more baseless lawsuits threatened. But the purpose of this case was not simply to repel Mr Hijab. It was to tell everyone like him that when it comes to a battle for truth The Spectator is - always - ready to fight.