Tort litigation as means to truth about the Troubles, authors propose; approach parallels access theory

A new article from researchers in Newcastle, England, posits the use of tort litigation to exonerate the right to truth in relation to the Troubles in Northern Ireland.

The authors are Conall Mallory, University of Northumbria at Newcastle,  Sean Molloy, Newcastle University, and Colin Murray, Newcastle University Law School.  Their article is Tort, Truth Recovery and the Northern Ireland Conflict, forthcoming 2020 in the European Human Rights Law Review and available on SSRN.  (Hat tip @ Steve Hedley, Private Law Theory.)  Here is an excerpt of the abstract.

Northern Ireland has no effective process to address [the] legacy of the human tragedy of decades of conflict. And yet during that conflict, and especially in the years since the Belfast/Good Friday Agreement 1998, people have employed multiple legal mechanisms to gain information about events which affected them and their loved ones.... One under-explored element of this complex picture is use of tort in legacy cases. Civil actions, supported by legal aid funding in Northern Ireland, provide a potential avenue for the discovery of information held by public bodies. Even unsuccessful actions can thus contribute new information about the events in question. Many of the harms inflicted during the conflict were torts as well as crimes, and this article assesses the extent to which these civil actions provide an ersatz mechanism for truth recovery, and challenges efforts to curtail such actions as a "witch-hunt."

Derry clash, Apr. 1971 (N. Ire. public record)

The right to truth is a piece in the puzzle of truth-and-reconciliation strategies as they have been implemented with variable success in post-conflict venues around the world.  The strategies are predicated on the notion that the revelation of truth has value in of itself to victims and survivors.  The conventional legal system, focused as it tends to be on compensation, often accomplishes nothing when compensation fails to materialize, or even nothing in the way of meaningful remedy if compensation does happen.  Thus truth proceedings are regarded as a hallmark legal innovation to clear the decks and allow peoples and nations to move forward.  So well regarded is this principle that human rights instruments and institutions have come to recognize "the right to truth" as a human right, a necessary corollary to the right to life.

In this article, the authors lament that there has been no effective, systematic truth process following the Troubles.  To the contrary, they posit, the U.K. government has as often thrown up roadblocks to truthful revelation.  A patchwork of legal mechanisms has nonetheless allowed truth to surface, they explain, and they review the efficacy of legal actions such as human rights litigation and information requests under the U.K. Freedom of Information Act.

Tort litigation offers another, as yet underutilized avenue, they propose.  For reference, they point to the Alien Tort Statute in U.S. jurisprudence, though, I add, it has lately fallen on hard times in the U.S. Supreme Court; and they point to U.K. agreements in recent years to pay claimants in Kenya and Cyprus in compensation for violent colonial suppression in the 1950s.  Survivors of the Troubles, even those who were children at the time, may press tort claims, such as battery, trespass, and civil conspiracy, against violent actors in the Troubles, whether British security officials, IRA fighters, or other paramilitarists.

British Army patrol in Kenya during 1950s Mau Mau Uprising
(Imperial War Museums)

Tort litigation in the proposed vein is not a new idea, but stumbles amid many hurdles, not the least of which is sovereign immunity.  But immunity can be overcome in actions against persons, whether non-governmental or gone rogue.  And there is ample evidence of both in the history of the Troubles.  An IRA defendant, for example, may be a purely private actor, and a British official who inflicted violence might be sufficiently dissociated from government policy as to negate immunity.  There's a fine line anyway between tort litigation and human rights claims, see Stefan Somers's whole book on the subject, the two more or less coinciding in the United States in the area of "constitutional tort."

Anyway, the authors claims, the plaintiffs in these tort actions do not actually have to win; they just have to survive dismissal to get to discovery.  Because their aim, remember, is truth, not compensation.  So the authors are really proposing that tort litigation be used for its discovery methods, regardless of the outcome of the case.  They moreover suggest that the litigation might shake loose answers from the government to avoid the prospect of compensation, or at least the cost of litigating, and they illustrate that having happened already in select cases.

The idea of using tort litigation for its discovery mechanism rather than with the aim of compensation is dicey, but not wholly objectionable.  Ethically a lawyer should not file an action that isn't winnable upon some rational theory.  But these cases wouldn't fail that test; there's no rule against having a multitude of aims in the fight, even if you think you'll lose on decision.  Of course, American tort lawyers are often criticized (whether it's true or not, discussion for another day) for playing fast and loose with that understanding, using the litigation process and its hefty transaction costs to shake down defendants on barely credible claims.  Here at least the aim is truth, rather than a pay day, so an aim with some sanction in civil rights.

The proposed litigation strategy reminds me of the work I've been doing lately (e.g., U.S. reform proposal) on the freedom of information, or right to access to information, in South African law.  There, a provision of law allows access to private sector records upon stringent prerequisites, namely, the exoneration of human rights.  The right to truth is one right that should fit that bill, a co-author and I have posited (abstract on SSRN, blog).  In a conventional South African FOI case, the courts allowed access to the records of a public steel company to investigate the exploitation of Apartheid labor.  It's a short leap from there to investigation of a private company with similarly sinister secrets.

Moreover, the South African courts have put some mileage on the private-sector-access law as a tool for "pre-discovery," before tort litigation is filed, to help a would-be plaintiff test the evidentiary waters.  That approach can only make litigation more efficient, more than one South African court has reasoned, by filtering out non-viable causes.

Those twin rationales, the right to truth and the validity of pre-discovery, seem incidentally to countenance the repurposing of tort law to the aim that Mallory, Molloy, and Murray here propose.  A comprehensive and government-sponsored approach to truth-finding would be more satisfying to those of us who like to call something what it is.  But maybe this is a way that tort law can exert policy pressure to bring about, in time, a coherent legal approach to the right to truth.

UK football letter roils world sport, and real world, too

Letter posted on Twitter by the AP's Rob Harris

The English Premier League football (soccer) organization wrote to the U.S. Trade Representative in February urging that the United States put the Kingdom of Saudi Arabia on the "Priority Watch List" of countries that fail to protect intellectual property (IP) rights.

The letter has been widely reported beyond the football world for its potential implications in foreign affairs.  Where the United States is concerned, IP piracy is regarded as a critical contemporary problem, on par with national security.  Much of that regard is warranted, as countries such as China, at least historically, have been linked to IP theft as a means to unfair economic advantage, to the detriment of American enterprise.  Some of the sentiment derives from the capture of Washington by IP-wealthy corporations, to the detriment of intellectual freedom.  Regardless, the gross result has been a paper war with nations that countenance IP piracy.  To put Saudi Arabia in those U.S. crosshairs adds a layer of complexity to our already impossibly complicated love-hate relationship with the KSA—read more from James Dorsey just last week—with ramifications from Yemen to Israel.

The letter has potential ramifications within the Middle East, too.  The Premier League's indictment calls out specifically a Saudi-based pirate football broadcaster that calls itself "beout Q" and seems to operate in a blind spot of Saudi criminal justice, even distributing set-top boxes and selling subscriptions in Saudi retail outlets.  The name seems to be a thumb in the nose of beIN Sports, a Doha-based, Qatari-owned media outlet with lawful licensing rights to many Premier League and other international sporting matches.  Saudi Arabia has led the blockade of Qatar since the 2017 Middle East diplomatic crisis, a high note of previously existing and still enduring tensions between the premier political, economic, and cultural rivals in the region.

A 2016 Amnesty International report
was not flattering to Qatar or FIFA.

Football and international sport are weapons in this rivalry.  Qatar has long capitalized on sport as a means to the end of soft international power, winning the big prize of the men's football World Cup in 2022, if by hook or by crook.  Saudi Arabia has more lately taken to the idea of "sportwashing" its image, especially since the Jamal Khashoggi assassination and amid the ceaseless civil war in Yemen.

The letter roiled the world of football no less, as Saudi Arabia has been in negotiation to acquire the Newcastle United Football Club.  That purchase requires Premier League approval.  So everyone and her hooligan brother has an opinion about what it means that the league is so worked up about Saudi IP piracy as to write to the United States for help.

This unusual little letter is a reminder of a theme, known to social science and as old as the Ancient Olympics, that, more than mere diversion, sport is a reflection of our world.

'Ink' splashes journalism's muck on public stage

Bertie Carvel and Jonny Lee Miller

Saturday I saw Ink, by British playwright James Graham, at the Manhattan Theatre Club, Samuel J. Friedman Theatre in New York.  I wanted to see Ink primarily to fan-boy Jonny Lee Miller.  I’ve idolized him since he appeared alongside Ewan McGregor in the brilliant 1996 Danny Boyle film adaptation of Ian Welsh’s Trainspotting.  I fell in love with him all over again as the reimagined Sherlock Holmes of U.S. CBS’s Elementary, the longest-ever screen-time run of an actor in the role and complement to Lucy Liu’s equally landmark portrayal of Watson.

As newspaper editor Larry Lamb, Miller live was all that I dreamed.  His jaunty spirit and dark-edge demeanor gave life to the tidal forces of moral conflict that tore Lamb apart as he labored under Australian upstart Rupert Murdoch—played by Bertie Carvel, who has owned the role to deserved acclaim since Ink’s debut at the London Almeida and then the West End—to reinvent news in the British tabloid Sun, circa 1970.

I don’t want to give away too much of the play’s awestriking climaxes, so I’ll only mention that one moment comprises a thundering explosion of physicality by Miller as Lamb, as he literally pounds his newspaper vision into reality over union workers’ refusal to roll the presses.  Miller seemed to be losing his voice by the matinee’s end, and my wife and I wondered that he could pull off this exhausting feat a second time that day, much less eight times per week.  Ink opened on Broadway in April and was just extended to July 7.

Playwright James Graham
speaks at his alma mater
University of Hull in 2018.
(By Robin S. Taylor
CC BY-SA 4.0.)

To my giddy delight, Ink delivered so much more than a stellar cast.  Mansfield-born James Graham is an accomplished writer of stage, TV, and film, and he’s evidenced an award-winning capacity to grapple with social issues through context.  (His film adaptation of Mikey Walsh’s Romany-expose memoir Gypsy Boy is in pre-production.)  Graham’s socially provocative Privacy in 2014 was informed by the Edward Snowden affair, and Daniel Radcliffe joined the cast for its New York debut in 2016.  With Privacy, though, lukewarm reviews suggested that Graham modestly missed the mark, giving audiences angst, but not much that was new.  He might have bitten off more than he could chew by trying to tackle a subject of such wide-ranging complexity.

If Privacy was Graham’s faltering early exploration of the social landscape, Ink is his finished dissertation.  I knew Ink would be about the birth of modern tabloid journalism—the less modern iteration being the Hearst-Pulitzer yellow journalism of the 1890s, another turning point in the history of news, evidencing my journalism professors’ admonition that nothing ever happens for the first time.  I did not understand before I went that Ink is calculated as a commentary on our present-day problem of “fake news,” or, otherwise packaged, the consumer-driven, 24-hour news cycle that undoubtedly represents another centennial shift in the enterprise of journalism and signifies to many a circular cause and symptom of moral decay in human civilization.

Set principally in 1969, Graham’s play never mentions “fake news” in modern terms.  But it does talk about populism, and therein lies Graham’s clever contextualization.  He locates Murdoch’s revolutionary arrival on the global media scene relative implicitly to the Fox Corporation of 2019, five decades hence, and at the same time relative explicitly to the spilling of populism onto the world stage in 1939, three decades earlier.

Jonny Lee Miller and Lucy Liu talk Elementary at San Diego Comic-Con in
2012.  (By Genevieve CC BY 2.0.)

As the cast discussed on stage in a talk after the show on May 11, an insightful feature of Graham’s Murdoch and Lamb arises in their portrayal as protagonists.  Part of you roots for them to succeed in overturning the staid paternalism of post-World War II journalism.  Fleet Street had become entangled with elitism, arguably peddling news as nothing more meaningful than a new opiate for the masses.  Media had fallen out of touch with the everyday plight of the working classes that post-war chroniclers had purported to protect with anti-establishment bulwarks.  Sound familiar?

Lamb’s fall reminds us that the shortest path from Cronkite-esque public servant to Alex-Jones-town social menace is more slippery slope than cliff-edge drop.  Murdoch is the devil to Lamb’s Doctor Faustus, and one must remember that the devil was not really the villain of that story.  Protagonist and antagonist at once, Faustus was everyman.

Graham artfully traced the unraveling of countless threads in social policy in Ink’s Sorkin-paced script.  Almost in the play’s background, the aforementioned union press workers evolve from butt of ridicule to moral compass as Lamb loses his grip.  Characters’ commentary collateral to the business of newspapering portends the looming behemoth of television, à la Marshall McLuhan.  Lamb’s dogged insistence that absolute freedom of information is the best way to save the life of kidnapped Muriel McKay evokes pondering of Julian Assange’s access-to-information fundamentalism, such as birthed Wikileaks.

Front and center, the advent of the Murdochian media empire, portrayed in Ink, posits a simple question that has haunted ethicists since the construction of the Fourth Estate:  Is the role of journalism in a democracy to give the public what it needs or what it wants?

 Elementary s7 premieres May 23 on CBS.

Burning of the Bodleian

Guide Fiona in an oak-paneled room of the ground-level, former Divinity School at Oxford University's main building of the Bodleian Libraries.  Photos are not permitted on the Humfrey Library level, discussed in this post and featured in Harry Potter's Hogwarts.

Today I had the extraordinary experience of touring the main, historic building of the Bodleian Libraries at Oxford University, UK.  Here's some of the intriguing and tragic history shared by my capable guide, Fiona (a knowledgeable academic, whom I wish I could identify more precisely; Fiona, get in touch if you read this, and I shall give you due credit).

To get the most important matter out of the way at the top: Yes, this is the place were books literally were flying about the room at Harry Potter's Hogwarts.  Fiona told a couple of good stories about filming in the library, which was permitted only during, and ran fully throughout, nighttime closing hours, 7-7.  Sometimes filming had to be stopped on Harry Potter if sound booms got too close to the ceiling beams, or lights raised the temperature too much for the books' safety. On another occasion, Fiona asked a bearded guy, authorized to case the library, why?, and he answered, "For the next Transformers movie."  Only later did she realize she had spoken with Steven Spielberg.  She still wasn't sure why the library would make an apt set for Transformers.

So I'll skip the fascinating mechanics and history of care for the books--let Fiona have her IP, and you should take the tour, at least the 60-minute version, yourself--and mention just one arresting, contemporary fact: Fiona said it takes on average £20,000 pounds to scan one book from the historical collection.  So feel welcome to donate in support of the effort.  What's here that's worth such extravagant effort?  Fiona casually mentioned the presence of an original Johnson dictionary among the holdings.

In the 15th century--the dawn of the printing press, remember--Fiona said, one book cost about as much as a small car today.  The University library owned the princely sum of 20 books. In the 16th century, Oxford got a massive donation of books from Duke Humfrey (Humphrey of Lancaster, first Duke of Gloucester), but had no place to put them.  So the library asked for some additional money from Humfrey to build the structure I was in today (but just the second floor; the Divinity School was on the ground floor and today is part of the halls still used for Convocation; it was and remains--with modern climate controls precluded in the name of historic building preservation--unwise to store books on the ground level because of the risk of rat and insect infestations).

Today if someone who has the proper credentials wants to see a book from this old collection, he or she must request it in advance, and then is given a date, time, and place to view the book.  The book is then transported via underground tunnel across Broad Street to the more recent Watson Library (opened originally 1940s, renovated and reopened 2015), to meet its reader at the appointed time and station.

Yet these are not the original books of the 15th century.  In the 16th century, the entire contents of the library was (believed) burned in the name of the Reformation.  You can still see where a stone cross was removed from the wall.  The stained glass windows, featuring Catholic iconography, were destroyed and today still are just plain clear glass.  Some 40 or 50 (more?, it is suspected) books are known to have survived the burning, besides pages here and there (some lathered with butter, as they apparently were recycled by fishmongers to wrap their wares).  The library has managed to buy back five--5! (or just three, Wikipedia says).

Thomas Bodley came around to restore the library in the late 16th, early 17th centuries--after 50 years of post-Reformation neglect that left ceilings open to the elements--and the library/libraries took his name.  But that's another story for a longer tour....

"Readers" at the Bodleian--such as, once upon a time, JRR Tolkein--have always been compelled to recite aloud the library's pledge, formerly in Latin and now, thankfully, in English.  At the shop, I bought the tin sign for my law-librarian wife to adorn her workplace, and perhaps demand likewise of patrons eager to explore special collections:

I hereby undertake not to remove from the Library, or to mark, deface, or injure in any way, any volume, document, or other object belonging to it or in its custody; not to bring into the Library or kindle therein any fire or flame, and not to smoke in the Library; and I promise to obey all rules of the Library.

See, fire, such as the burning of candles even for the innocent purpose of generating reading light, always and still poses a grave threat to the library.  But that threat is second, Fiona said, to the ravages of water, which might be needed to put out a fire.  Mold begets hungry bugs, who don't stop when they reach paper.  Not even bottled H2O is permitted to today's readers, who must exit the library to slake their thirst.

Shhhhh!  Silence in the stacks, please.