It’s a privilege to do this job.
As editor-in-chief, when the award nominations and accolades pour in, you get to bask in the glory of your brilliant, tenacious colleagues.
Equally, when your organisation gets threatened by powerful, sometimes dangerous people who want to silence it, it’s your job to take that heat.
Often those threats come in the form of expensive lawyers’ letters, usually from the expected quarters. Oligarchs. Criminals. Sex offenders.
But something happened recently which was completely unexpected. We’ve decided to go public about it, not only because the Liberal Democrats have some serious questions to answer. But also because it stinks of the cynicism and fakery we’ve seen across politics during this election.
And it would be quite funny – except it’s not.
It all started when we published a story by my colleague Jim Cusick, a highly experienced political reporter. It was about how the Liberal Democrats had sold voter data to the official Remain campaign, Britain Stronger In Europe, for £100,000 back in 2016.
The Lib Dems have always maintained there was nothing wrong with the lucrative deal, but it raised eyebrows, and the Information Commissioner launched an investigation. You can read more about that here.
As is normal, Cusick approached the Liberal Democrat press office for comment before publication. No reply was received. We noted that fact in our story, and reported their previous statements on the issue.
A day after we published, Cusick got an email from a senior official in the Lib Dems press team. They asked why we hadn’t included the party’s response in our piece. Cusick replied that he’d never received a comment from the Lib Dems, but that if they sent him one, he’d add it in straight away. The press office never got back to him.
Two days later we received a letter from the pricey legal firm Goodman Derrick. It denied that the Lib Dems had done anything wrong and called our story “irresponsible”.
The lawyers said our article was “evidently intended to be disparaging against our client in the run up to the election” and was “likely to cause, if not already done so, serious harm to the Liberal Democrats election campaign”.
They also took issue with our choice of image to illustrate the story – a photo of Lib Dem leader Jo Swinson – because she was not an MP at the time of the data sale. The article made it clear Swinson was not Lib Dem leader at the time, but they suggested that in putting this picture above our article we might have broken electoral law.
Then came the threat. They wanted us to remove “all derogatory and disparaging statements” from the article – or take it down. If we didn’t, they said, the Lib Dems might want to start taking formal legal action against us. You can read the letter here.
Having recovered from the mild bafflement that the Liberal Democrats, supposed champions of civil liberties and free speech, were trying to invoke criminal law to shut down a press report, we sent their lawyers the following response:
From: Mary Fitzgerald
Sent: 18 November 2019 11:13
Your client: The Liberal Democrats Party and Ms Joanne Swinson
Thank you for your letter dated 15th November 2019, received by email.
Our reporter James Cusick’s attempts to obtain a statement before publication did not receive a response. If you do wish to provide us with a statement for retrospective inclusion, we would be happy to consider doing so.
In providing us with a statement, and assuming your clients’ position is that there was nothing wrong with the 2016 data sale, we would ask your clients to specifically address whether they would do such a deal again - and if not, why not.
We maintain that the publication of the image of Ms Swinson in this context does not constitute a false statement of fact about her personal character or conduct, such as to engage section 106 of the Representation of the People Act 1983. It is explicitly stated in the article that the leader of the Liberal Democrats at the time of the sale was Tim Farron.
We assumed we would hear nothing more. We were wrong.
Another letter arrived from Goodman Derrick. They told us that Cusick was “wholly incorrect” about having not received a response from the Lib Dems before publication, and that they were awaiting further instructions from their clients.
From: Mary Fitzgerald
Sent: 23 November 2019 11:54
We have now attempted three times to obtain an on-the-record comment from your clients - once via our letter to you on 18th November, and twice before then. I have attached the relevant emails.
In the absence of having received one, and in order to save time and cost on both sides, we have surmised what we can about your clients' position and have amended the article accordingly.
We would be happy to consider including a further, on-the-record comment from your clients, if they are willing to provide one. We refer them to our previous question, about whether they would engage in such a data sale again, and if not, why not.
I remain at your disposal,
We made a note of the amendment on our site and, once again, we assumed that would be the end of it. But it wasn’t.
A few days later, Goodman Derrick wrote to us again. They told us that an “on the record” response was sent to Jim a day before publication, 12 November. They demanded an explanation and written apology from openDemocracy for not having included it. They demanded we publish this apology prominently on our website, and for the Liberal Democrats to be able to publicise our apology wherever they saw fit. They also demanded a raft of further changes and revisions to the article.
They also attached the document shown below – proof, they implied, that we had wilfully ignored their clients’ position. You can read the full document here.
There was just one problem with all of this, which Jim quickly spotted. He hadn’t written to the Lib Dems asking for their comment on 12 November. He’d asked them for comment a day later, on 13 November.
This fact was clear in the evidence we’d already supplied to Goodman Derrick several days previously. Here's the top of Jim's email - you can read the rest here:
In other words, how could the Lib Dems have responded to a question we hadn’t yet asked?
And why did their so-called 'reply' to Jim on 12th November carry the subject line of a completely different story, which had nothing to do with the data sale?
We wrote to them on 27 November, asking them to provide an explanation by 4.30pm that day. No reply or acknowledgement was received.
We sent a follow-up on 28 November, stating: “What you have sent us appears to be a crude forgery, and the attempt to rely on it a prima facie instance of attempted fraud.” We asked for a reply by 4.30pm that day. No reply or acknowledgement was received.
We wrote to Goodman Derrick and also to the Liberal Democrats yet again on 29 November, and told them we would publish a story by noon, whether or not we received a response.
Finally, we heard back. First, they demanded more time and threatened us with an injunction.
Then, someone in the Lib Dem press office rang me and admitted that a “mistake had been made” and told me they were investigating.
Then, after we had extended the deadline yet again, they provided an official statement:
The Liberal Democrats refute allegations made in openDemocracy’s piece of 13 November. However, we have been made aware that the information openDemocracy subsequently received from the Liberal Democrats was incorrect. We have suspended a member of staff involved and are following due process.
That still wasn’t the end of it, however.
We received another letter from Goodman Derrick. It said that the Liberal Democrats had launched an inquiry into the matter, but it also repeated their threats over our original article. It also claimed that neither their client contact nor anyone at the firm had any reason to believe – until 29 November – that the fake email was anything other than genuine.
We pointed out that Jim's email, which we'd supplied to them as evidence almost a week previously, clearly contradicted this. It showed quite plainly that we'd asked the Liberal Democrats for a statement on 13 November, not 12 November. They had this information long before they sent us the fake email, and before they used it to demand an apology. We asked them to explain.
They referred us back to their previous statement. We've heard nothing more since.
Fake news, new normal
We haven’t lost our sense of proportion. Boris Johnson and his government have an absolutely shocking record on spreading misinformation, smears and lies. openDemocracy has covered this issue extensively, and it’s the driving subject of an op-ed we’ve just published in The New York Times. We’ve often been accused of being shrill Remainers for doing so.
Corruption, suppressing evidence of foreign interference, breaking electoral law – all allegations involving members of the current government – are obviously a bigger deal than an amateur forgery from the press office of a party that has no chance of winning the next election.
But given how prolific Jo Swinson’s Liberal Democrats have been in calling out the scourge of fake news during this election campaign, it’s worth noting how busy they’ve been creating it themselves.
The squirrels were not their fault. But the Lib Dems have also been accused of twisting election statistics to make it look like the party is leading in key constituencies when it is not. They’ve published ‘newspapers’ full of party propaganda that are made to look like local titles. And they’ve displayed ‘headlines’ in campaign leaflets that appear to show newspaper reports endorsing their party, when in fact they are simply quoting statements from their party.
It’s all a bit silly. But it’s more than that, too.
First, why was the Lib Dem press office so desperate to discredit our story? In Jim Cusick’s initial communications with them, he told them we had seen internal documents about the Lib Dems’ lucrative 2016 data sale. If, as they strongly maintain, the party had acted in accordance with the law at all times and had done nothing wrong, why did someone think it was important enough to repeatedly make false claims, including a faked document, via expensive lawyers?
What did our story reveal that prompted this level of duplicity?
Second, the replies from Goodman Derrick were issued on behalf of the party and of its leader, Jo Swinson. This assumes that senior figures were involved. Who sanctioned and signed off this aggressive legal pursuit, including the letter with the forged email? And how might Lib Dem supporters and donors feel about this appalling use of party funds?
Perhaps most importantly, though, what does this whole episode say about the so-called ‘Liberal’ Democrats’ regard for fact-checking, accuracy and press freedom? We at openDemocracy are a small team. The distraction has cost us valuable staff time and legal bills, which could otherwise have been spent on doing actual journalism during the final weeks before the most important election in a generation.
That’s what’s so cynical about hiring expensive lawyers to chase down small, non-profit media outlets like ours. We believe our original story about the data sale raised important questions, and we stand by it. Meanwhile they've given no apology, let alone offered to cover costs, for the time and money they’ve wasted making false accusations against us.
We’ve come to expect this behaviour from corrupt oligarchs and bullying, vain businessmen. Perhaps I was naive, but I did not expect it from Jo Swinson’s Liberal Democrats.
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