I’ve written before about the pernicious and unjust nature of the UK’s libel laws – let’s face it, when the UK becomes the jurisdiction of choice for wealthy litigious American s’lebs intending to sue their native supermarket tabloids, then you know damn well how biased and unfair our own libel laws are.
As if to drive home the point, Heather Brooke of Your Right To Know seems to have found herself on the wrong end of the MSM’s paranoia about litigation for doing nothing more than expressing an opinion about a recent, and well-documented libel action:
Well no sooner do I write about England’s draconian libel laws and the chilling effect they have on freedom of expression then I hear word that the solicitor for self-proclaimed childcare ‘expert’ Gina Ford has complained to the Times about my piece and they have now removed my article from their website while they deal with the complaint.
Huh? No seriously, Ford, who sued and obtained a settlement from Mumsnet over comments posted in their forum that were removed within 24 hours of posting, has now complained, and had taken down, an article on the pernicious state of the UK’s libel laws for no other reason than the fact that Heather refers to her lawsuit against Mumsnet as an example or precisely how the current construction of libel/defamation, in which the defendent has to ‘prove their innocence’ – it a tad more complex than that but that’s the general gist – is unfair and biased in favour of the rich and shameless.
I think you can guess what’s coming next… notwithstanding the matter of copyright, I think it’s time for another ‘I’m Spartacus’ moment, so here’s Heather’s article from the Times, in full.
England, home of the mother of all injustices
The Times, May 14, 2007
By Heather Brooke
The libel laws are an abomination. They favour rich, litigious bullies at the expense of free expression. Even a website for mothers to chatter on is fair game to this draconian law.
Last week mumsnet.com was forced to pay a five-figure sum for comments posted on its chat site. It stood by the comments but this law is such an ass that the burden of proof rests solely with the defendant.
Meanwhile, claimants can make their allegations free from evidential proof. Their opinion is all that counts. They do not have to prove the comments are false. They don’t even have to show any harm to their reputation. I can think of no other area in law in which an individual’s spurious opinion outweighs the greater public good of truth and justice.
The Mumsnet case makes clear how libel affects everyone, not just journalists or those working in the traditional media. More and more of us, thanks to the growing ubiquity of blogs, chat groups and web forums, are vulnerable to this nefarious law. And while big media groups have deep pockets, the individual hasn’t.
If the damages don’t get the writer, then legal costs certainly will. Most writers are not rich people and so they must settle. Result: vibrant debate is quashed, truth inevitably suffers. The law is so heavily weighted against freedom of expression that all writers (even those hosting blogs) are being urged to buy libel insurance; the freelance chapter of the National Union of Journalists is inundated with inquiries about its new policy.
No matter that the publishers of Mumsnet didn’t even write the comments that the author Gina Ford claimed defamed her. Under the Defamation Act 1996 nonauthors can be held liable if they fail to expeditiously remove comments someone thinks are defamatory. But how quick is quick? The Mumsnet founder Justine Roberts said that the comments were taken down after little more than 24 hours. Yet the vagueness of the law means she would have to go to court to prove this was a reasonable time period.
As a result we now have a culture where the default position is not free speech but censorship. After the 2001 case Godfrey v. Demon Internet Ltd, all internet service providers became vulnerable to libel lawsuits if they failed to immediately censor comments that a person claimed were defamatory. Whether or not the words are true is irrelevant.
England’s libel laws have never been about protecting individuals – at least not poor or helpless individuals. They are about protecting the rich and the powerful.
A fair law would be one in which the claimant has to prove falsity, harm and malicious intention, while providing a defence for truth, reasonable care and the public interest. Then both reputations and freedom of expression could be protected. Until then, mum’s the word.