Taking on the libel laws – more thoughts.

My thoughts on bloggers taking the fight to Britain’s berserker libel laws have already prompted a few responses and several questions/queries that are worth addressing.

Dizzy has kindly pointed out – in comments – that there’s a question mark hanging over the definition of ‘publication’ for the purposes of putting in place a US style single publication rule, which would effectively kill of the current trend towards libel tourism.

Dizzy’s contention, which comes from having discussed this issue with lawyers in his professional capacity as a sysadmin, is that the courts could deem the act of publication to take place at the point at which a blogger hits the publish button, in which case jurisdiction resides in the location in which the blogger is situated at the time the article is published. You write in the UK, you get sued in the UK.

My view is that, because libel can only exist once content is made public, a blog post is published only at the point it becomes publicly available, i.e. it appears on a blog, in which case jurisdiction resides in the location of the web server which serves the article.

Dizzy’s right to say that this is currently unclear because UK law operates on the multiple publication principle, in which content is deemed to have been published at the location at which it is accessed by the reader – their web browser – and because the definition of publication in law is a matter of precedent and not statute.

As such, the problem leads naturally to the solution. Under the UK’s uncodified constitution parliament is sovereign, therefore the way to settle this issue is to push for the incorporation of an appropriate statutory definition of publication in any amendments to the Defamation Act we work to bring about – we need to add this to list of legislative changes we aim to lobby for.

Elsewhere, The Devil notes the possibility of counter arguments from politicians in relation to efforts to provide legal immunity from libel actions to web hosts:

However, I suspect that the government will be less than anxious to implement this. Why?

Well, it very simple: it gives them far more leverage to pull material that they wish to have removed. Any refusal to put this through would, I guarantee, be countered with arguments that it would allow terrorists to plot the deaths of millions or for kiddie-fiddlers to get their porno with impunity. Therefore we should be ready to provide our own technical arguments to rubbish this idea.

I’m not sure its technical arguments that are need so much as efforts to ensure that the message we convey provides the correct legal arguments. Provisions for take-down notices in regards to alleged ‘terrorist’ material and child porn are matters of criminal law, not civil law, which is what we’re dealing with here – except for the remote possibility of the use of criminal libel, cases of which are very rare.

As such, provisions for legal immunity for web hosts in cases of libel would be extremely unlikely to come into conflict with criminal law provisions covering terrorism or child porn, but in any case the need is to be specific and stay on topic and focussed on the defamation laws. Other areas of free speech where issues arise need to be treated as a separate battle.

Again, this point to the ‘how’ of tackling this issue. To provide this kind of legal immunity requires primary legislation, i.e. a private member’s bill, and because of the nature of the objective that bill would be one that seeks to insert amendments into the current Defamation Act, which is where we limit the scope of the immunity to libel.

It’s also worth saying that is not a complete blank cheque for hosts – they would remain responsible for their own material and for moderating their own support forums, etc. It would only be where that have no part in the content that appears on their servers that this immunity would apply.

A couple of other issues have occurred to me overnight, due to the viral nature of current libel laws, that need thinking through.

One is the question of linking to, and quoting material that is subsequently alleged to be libellous.

In the seeming absence of a clear precedent – unless someone knows otherwise – its currently the practice of those issuing threats of libel proceeding to target bloggers simply for having posted a link to the material they want removed from the net, even if that blogger does not reproduce any of the ‘offending’ content.

That, to me at least, seem excessive, particularly as such links are almost always posted in good faith, not to mention that the very nature of blogging, when approached ethically, lends itself to the quick and clear correct of factual errors and inaccuracies, which goes a long way towards ameliorating the effects of possible libels.

There is something in that that need clearing up in terms of bloggers being able to understand the boundaries of their legal responsibilites.

The other issue where the nature of blogging causes complications is that of ‘fisking’.

It is certainly possible, if not commonplace, for bloggers to republish material that could be thought libellous or defamation precisely for the purpose of debunking it and raising doubts and question marks about its veracity. In which case, which matters more, that the republished material may be thought defamatory or that the blogger has put in the time and effort to question its validity and maybe even demonstrated that its doesn’t stack up.

Like so many other things, the current libel laws seem rather ill-suited to deal with the medium of blogging because they come from another era and were designed to deal with publication formats where there isn’t the scope for an immediate and unfettered right of reply or scope for rapid corrections.

That, in some ways is a dangerous argument, because it puts over the view that the current laws are outdated and ill-equipped to cope with technological developments and the manner in which they’ve changed the nature of publishing and mass communications, and any time one opens that particular can of worms one can be sure that it won’t be long before the vested interests come crawling out of the woodwork to try and bend the law even further in their favour using the same argument; that the current laws are out of date. That’s been the pattern in terms of intellectual property and copyright, and we can have no reason to expect that taking on current libel laws on te same terms will prove to be any different.

This is where we really do need to be prepared and marshal our case and our arguments in advance, rather than allow things to develop piecemeal and in a way in which leaves room for vested interests to creep in and try to take over the process.

My final thought for now is simply that I noticed yesterday that Lib Dems have now also jumped on the ‘Bill of Rights’ bandwagon, which means that we have all three of the main parties promising a bill of rights of some description, although none has yet actually said anything about what such a bill might contain or how it might differ materially from the rights we are already accorded under ECHR and the Human Rights Act.

A well-formulated constitutional right to free speech, akin to the US First Amendment, would go a long way towards tackling some of the issues of privately engineered censorship that bloggers are increasingly butting up against not just by asserting our right to free speech but also because such an assertion fundamentally alters how laws are written and interpreted to take into account those rights – one only has to look at the US courts differ in their interpretation of libel from those in the UK to see how the First Amendment alters the thinking of legislators and the judiciary in relation to free speech.

I think its time we started to push all the main parties about their proposals for a bill of rights and, on the question of free speech, demand to see the substance rather than the rhetoric. Simply promising a bill of rights is a meaningless gesture, what matters in what that bill contains and how it is formulated.

The Devil, as they say, is in the detail and its the detail we need to be seeing from all parties and not the usual rhetorical platitudes.

I think that’ll do for now, but do keep the questions, queries and ideas coming.

  • Carl Eve

    So, what about the Mumsnet issue then?

  • IIRC, the plaintiff actually began proceedings, which makes it a bit tricky but at the very least is a case for legal aid under the European Court’s ruling on the McLibel case.

  • Carl Eve

    Mumsnet caved in – very respectfully and understandably as it’s just a tiny team working on something they love with little moolah flying around. Their “victim” (although it wasn’t them, it was the commenters) was loaded.
    As with the Guido/Staines college lifestyle example – if there’s a suggestion of some bankroller behind it the sabre-rattling, then people are understandably scared of just the threat of libel, let alone the actual court case itself.
    It’s being tested in dribs and drabs here and there, but I think there will be a biggy down the road soon. (but I doubt it will be blogger-caused… being honest, there’s no money in it, is there?)

    I was always taught libel is not what does defane someone else, it’s what MAY defame someone else. The MAY is very telling.

  • Jono

    I am broadly sympathetic to the idea that the libel law needs changing, particularly to give hosts immunity. In addition, I would go as far as protecting the owners of message boards/blogs for postings made by third parties (though if it could be shown that the owner encouraged the activity, they should lose the immunity), because if I post in a comment here something someone claims is defamatory toward them and I say it isn’t, in the absence of demonstrable falsehood or a court judgment, how are you to know who is telling the truth?

    However, restriction of venue to physical location of server is where we part company, because this leads to tourism on the other side. I would instead give a choice of (a) location of server or (b) country of normal residence of the poster (who could be a commenter on a blog as well as the blog owner). (A potential (c) would be if it could be shown that the poster posted from a third jurisdiction, then that jurisdiction might also be a possibility.)

  • So far as jurisdictional issues are concerned for UK bloggers, the matter of location would become more or less moot in the event that our libel laws were to placed on a more equitable footing – in fact given US style laws in the UK, it would probably be preferable to stick with this country where sums awarded in damages are generally significantly less than those awarded by US courts.

    At present, the US is the better option simply because its laws are the more favourable and supportive of free speech.

  • I think there is something MUCH simpler that needs to be done first, before we start tackling the libel laws in a wider context: we must limit the Host’s take-down requirement to the material in question in the first instance.

    The fact that entirely unrelated sites have been taken out shows just how unreasonable this is. I made this point at The Select here.

    Try to imagine the MSM corollary: what Schillings have done is the equivalent of going to OfCom and shutting down, say, BBC1 entirely as a result of one programme in dispute.

    It’s not going to happen, so why should Hosts have to do so?

  • epsilon

    My view on this- and I don’t like it myself- is that anything accessed on the Net in the UK will be deemed to be published in the UK and subject to defamation law in the UK.

    I understand that the publishers of any adult material that may be accessable in the US-regardless of point of publishing- has to meet US regulations regarding keeping records of models and naming a custodian of those records. This is therefore a precedent that can be applied across the board.