Boston HOW COULD he get away with it for so long? That is the question posed by the collapse of Robert Maxwell's empire so quickly after his death.
For years he ran what amounted to an international confidence ** game, borrowing to cover up his accounts. An official British inquiry in 1971 found him unfit to be in charge of a public company. Yet politicians honored him; and newspapers printed his boasts, hollow though most of them turned out to be.
London's Financial Times said last week Maxwell was not some unimportant figure; his operations affected large interests and many people. "How was it," the paper asked, "that he was able to play such a role, for so many years, with such apparently cavalier disregard for the normal standards of probity? How could some of the world's leading banks lend so much money to him?"
It was British corporate regulatory law that failed, the Financial Times said. Yes, it did. But there was another reason why Maxwell escaped proper scrutiny for so long: Britain's stringent libel law, which makes it dangerous to write critically about a scoundrel like Maxwell.
Whenever anyone suggested wrongdoing by Maxwell, he sued. He brought 21 libel actions against the authors and others connected with two biographies of him. He sued the BBC, Rupert Murdoch, the editors of half a dozen English newspapers.
The threat of a libel suit is so potent in silencing critics in Britain because the law is so favorable to libel plaintiffs. Nearly everyone who sues the press gets a cash settlement or wins a jury verdict at trial -- and keeps it on appeal.
Two points of law are critical. When a plaintiff claims that a newspaper has published a false statement about him, the paper has the burden of proving it true. And there is no need for the plaintiff to prove fault, such as negligence, on the publisher's part; if he made a mistake, however innocent, he pays damages.
American law is to the contrary. The burden is on the plaintiff to prove that a statement about him was false. And he must show that there was some fault on the paper's part in publishing it.
The Supreme Court laid down those rules of libel in 1964, in the case of New York Times vs. Sullivan. It held that public officials must prove that a statement about them was published with knowledge of its falsity or in reckless disregard of the truth. The court later extended the requirement to public figures like Maxwell.
Justice William J. Brennan Jr., writing for the court in the Sullivan case, said the First Amendment protected the right of citizens to speak and write critically about their governors. In Britain, which has no written constitution, the law shows no such concern for the right to criticize the powerful.
One lesson of the Maxwell affair, therefore, is that Americans can be grateful for the constitutional rights that prevent suppression of probing journalism. The system is far from perfect. Powerful individuals and companies still use libel as a repressive weapon. But criticism is much freer than in Britain.
The difference in the two countries' law has lately led a number of libel plaintiffs to sue American publications in Britain. Maxwell sued the New Republic in England this year over an article about him, although the magazine has only 135 subscribers there.
When a British court awards damages against an American company, U.S. courts will ordinarily enforce that judgment -- order the company to pay. But in a case now pending in New York, interesting objections have been raised to thus enforcing a British libel judgment.
India Abroad Publications, a New York corporation, carried a report early this year that a Swedish newspaper had named an Indian public figure close to the late Rajiv Gandhi as involved in an arms scandal. It was sued for libel in Britain, where it maintains an office, and ordered to pay substantial damages. Now the plaintiff is asking the New York courts to enforce the order.
Lawyers for India Abroad argue that the British judgment should not be enforced because the concept of making someone pay damages for libel without showing any fault is repugnant to our public policy -- as reflected in both the Constitution and New York law.
The question, an important one, is whether American publishers can be intimidated, as the British press has been, by the threat or the reality of British libel suits.