So far we’ve looked at the current situation facing ISPs, webhosts, forum owners and bloggers vis-a-vis libel, third party comments and the ridiculous and unfair system of ‘notice and takedown’, plus a bit of economic reasoning as to why we should care about such things. This is where we have the most straightforward and strongest arguments for change because what we are challenging is merely a matter of interpretation; we are not, as yet, taking on the law itself.
For this second article on libel I want to look at an altogether thornier set of issues, those of publication and jurisdiction.
Where do we stand at the moment?
The UK’s libel law operates under what is called the ‘multiple publication rule’, which means than any and all instances in which a libellous statement is published in the UK are theoretically actionable. But what do we mean by ‘published’?
In terms of the internet, publication is deemed to take place at the browser of the end user accessing the allegedly libellous material, regardless of where the material in question was written or where it physically hosted (i.e. the location of the server on which the material is stored). This means that the entire contents of internet are theoretically under the jurisdiction of the UK courts, and UK libel laws, provided only that content is subject to ‘significant access’ in the UK; i.e. it’s been accessed in a web browser by an unspecified and entirely variable number of people living in the UK. There are no clear precedents on what amounts to ‘significant access’ as yet: it’s more than a handful of accesses – and at least one attempt to bring an online libel action in the UK has been thrown out because the court ruled that the number of hits on the content from the UK didn’t amount to significant access – but exactly how many hits is considered significant is anyone’s guess including, I suspect, the court’s.
To compound matters further, to be treated as having published a libellous statement one does not necessarily have to have repeated the libel. Merely linking – with or without comment – to a web page or blog article containing an allegedly libellous statement is sufficient to make one a ‘publisher’ and therefore at risk of litigation. And the current law of libel pays no regard whatsoever to an individual’s motives in linking to or repeating a statement that is alleged to be libellous. You can still be sued for libel for repeating or linking to an allegedly libellous statement even if, say in the context of a fisk of a newspaper article, you do so only to cast doubt on the veracity of the statement in question, if not demonstrate its falsehood.
The multiple publication rule, which stems from precedents set in 19th century, creates all manner of bizarre and anomalous scenarios when applied to the internet age, of which the most well publicised is that of ‘libel tourism’.
Libel tourism, in simple terms, is the practice of wealthy, and often foreign, public figures suing [mainly] US publications for libel in the UK courts because the UK’s libel law is considerably more plaintiff-friendly that the US libel law, particularly on the question of ‘actual malice’ (that the author/publisher knew that the libellous statement was untrue or was reckless in their decision to publish the statement), which has to be shown in the US for a public figure to win a libel suit, where in the UK it only has to be shown that the statement was untrue such that evidence of malice is relevant only to the decision as to whether to award punitive damages.
What the multiple publication rule does, in the UK and in some other jurisdictions (notably Australia), is enable the wealthy to pick and choose the jurisdiction in which they intend to sue for libel based on an assessment of which country’s libel laws are most favourable to them – which invariably seems to be the UK at the present time.
Fortunately, if you are an American living in the US, or a US-based business with no real assets in the UK, then while US law cannot prevent you being sued overseas for libel, it does almost always provide a ‘get out of jail free’ card in the form of the well-established doctrine of the primacy of the US constitution. Even if a plaintiff obtains a ruling in their favour in a UK court, if the losing party has no substantive assets in the UK that can be sequestered to pay any damages/costs awarded, the plaintiff must still apply to a US court to have the UK court’s ruling enforced – and US courts are notoriously unwilling to enforce any judgment by a foreign court that it considers may conflict with rights granted under the US constitution and Bill of Rights, especially when it comes to First Amendment rights to free speech.
Unfortunately, if you’re a British blogger and you repeat or link to content on a US-based website – say, to be topical, a bit of speculation as to why Britney Spears has lost custody of her kids – and that speculation turns out to be wrong, then the disparity in application and interpretation between US and UK libel laws could result in you facing legal action for libel where, under the US system, the original article you’ve quoted or linked to may not even be actionable.
The entire system of jurisdiction and rules of publication is a mess. It was designed for an era when the printed word was not only king, but the only means of reaching a mass audience and while it has coped – barely – with the advent of broadcast media, largely because until fairly recently most broadcasters operated within clear national boundaries or, in the case of the BBC World Service, with a clearly defined audience in mind, in the internet age, where the potential audience in both global and, to some degree unpredictable – I’ve had readers from 93 different countries in the last three weeks alone – it’s nigh on impossible to allow for all the many variations in jurisdiction and legal interpretation on might encounter.
Let me give you an extreme example.
I personally consider Robert Mugabe to be a lying, conniving, venal, corrupt, dictatorial and murderous charlatan: a complete and utter blight on Southern Africa. And, quite frankly, if asked to substantiate that view in a UK court, I reckon I could quite easily back up every single statement.
But expressing that opinion on my blog, I have technically committed a criminal offence…
…in Zimbabwe – where it is illegal to insult the President, even if he is a lying, conniving, venal, corrupt, dictatorial and murderous charlatan.
Okay, so I’ve actual got no worries about saying any of that, in part because I’m current getting no hits from Zimbabwe but also because I know perfectly well that no British court would entertain any attempt to seek my extradition to Zimbabwe to face a charge of insulting Robert Mugabe, not because he is a lying, conniving… ah, you get the picture, but because it is a basic rule of extradition that one cannot be extradited from the UK to a foreign country for an offence for which there is no direct parallel in UK law.
None of that, however, prevents a tin-pot dictator like Mugabe trying to claim jurisdiction over content appearing on the internet from anywhere in the world and while it clear that a British court would not enforce breaches of foreign criminal law where there is no equivalent offence in UK law, on civil matters the situation is much less certain. I haven’t checked, but as a former UK colony, I would expect that Zimbabwe has laws covering libel and defamation and could easily decide to operate under the same kind of multiple publication and jurisdictional rules as the British and Australian courts – only without a written constitution and bill of rights to fall back on, the question of whether a UK court would enforce a libel ruling made overseas in much less certain.
(You’d hope not, but can never be 100% sure).
The root cause of this problem, which is not confined solely to libel, as Yahoo found out when it fell foul of French laws prohibiting the sale of Nazi memorabilia* – it is simply that there is no common, universal standard for free expression. *And let’s also not forget that several EU countries, including Germany and Italy, want to impose a Europe-wide law criminalising Holocaust Denial, which many in this country, not least bloggers, would consider a dreadful and censorious imposition on free speech because we, rightly in my opinion, regard challenging such offensive views with evidence to be a more productive means of countering the false picture of history it seeks to promulgate than censorship and prohibition, which only serves to fuel the mistaken belief that what is being spread in a forbidden truth rather than an outright lie.
Yes, the principle of free speech is written into international law, into the UN Convention of Human Rights and ECHR, but it is there as a principle only and not underpinned by a clear legal framework, as is the case with intellectual property law, which has the Berne Convention to provide a set of basic standards.
Consequently, countries are left to interpret the bound and parameters of free speech, and of the regulation of free speech, to their own preferences and local conditions, which means that morally and ethically – although sadly not legally – there is no solid basis on which an individual country could, or rather should, claim jurisdiction for matters taking place outside their own national borders and, equally, it is unreasonable to expect a blogger, or publisher, to work to laws that exist outside the jurisdiction in which they generally operate.
Outside the US, which takes a much more enlightened approach to free speech, thanks in no small part to its First Amendment and the 200 years or so of case law that has built up around it, the position facing bloggers when it comes to questions of jurisdiction and precise what does and does not constitute publication for the purposes of libel and other censorious laws is a complete and utter shambles and near enough a legal free for all. This is a wholly unacceptable situation and one that needs to change, again to something more in line with US standards.
Why the US? Well, simply because we should aspire as a nation to the best possible standards and not allow ourselves to be dragged down to the level of the lowest common denominator, let alone be the lowest common denominator as is currently the case when it comes to libel.
When Britain becomes (as it already has) the jurisdiction of choice for wealthy, litigious Americans, then you know damn well there’s a problem.
So what can be done? Well, clearly, cleaning up the mess surrounding publication and jurisdiction will require primary legislation – and Act of Parliament amending the current Defamation Act, and any such changes must provide clarity for authors, publishers (and bloggers, of course) and yet still provide those who wish to pursue litigation for libel a fair chance of seeking and, if merited, of obtaining redress.
The first issue to tackle is, therefore, that of jurisdiction, and the current situation is that while I’m sitting here in the UK writing this for publication an a blog that’s hosted in US, once this article is posted it can be read anywhere in the world and any country can, hypothetically claim jurisdiction over my work. That’s an impossible situation for any blogger to operate under, let alone a commercial publisher, who may be at much greater risk of being sued simply because they are more likely to have the assets required to settle a claim for damages.
So far as suing the author of an allegedly libellous article, that seem fairly clear-cut to me. Authors are people and people have to live somewhere, so it makes sense that the appropriate jurisdiction should be that in which an author is ordinarily resident. I live in the UK, so if want to sue me then do so here, under UK law.
So far as publication is concerned, matters become considerably more complicated, particularly when dealing with commercial publishers who may be multinational concerns. Currently the multiple publication rule in the UK allows anyone to sue for libel in the UK courts on the basis that the allegedly libellous material can be published anywhere in the world but can be accessed in the UK, provided the litigant can pass the significant access test – even if the judgment of UK court may be unenforceable in the location in which the content in question is actually published. This is absurd.
What is needed, instead is a single publication rule under which it is possible to sue for libel only in the location in which allegedly libellous content in actually published, i.e. made available for downloading to a web browser. This would, in the case of a blogger, be the location of the web server on which their blog is hosted, while for a commercial publisher this could be either the location of the publisher’s servers, the location of the company’s head office or, in some cases, the location of a local office, where that office produces a localised edition of the content.
Take, for example, a newspaper like the New York Times. Its head office is, naturally enough, in the US, as are its servers, so you can obviously sue there. Currently, if enough people in the UK read an NYT article containing allegedly libellous content then the NYT could be sued in a UK court, even if the article is published in the US for a US audience. Under the changes I’m suggesting, this would no longer be possible, unless the NYT has a UK office and produces a UK edition.
Taken together, as a blogger who writes in the UK but publishes my blog in the US, someone who objects to the content of one of my articles can sue me personally, as the author, in the UK or sue me as publisher in the US, but not elsewhere in the world. As such I have only two possible jurisdictions to deal with and can be clear as to the rules I need to be working to.
That solves part of the problem, but the multiple publication rule creates a further issue in that it makes libel viral in nature – not only can I be sued for libel for my own work, but I can also be theoretically sued for libel for repeating or even linking to an alleged libel published originally by someone, even if I do so to challenge the veracity of the allegedly libellous statement – and I do know of one UK blogger who was threatened with legal action on this exact basis – or in complete good faith, as would be the case if I repeat something published elsewhere in the reasonably but mistaken belief that the source is reliable.
Is that reasonable or fair? I think not, especially when it comes to the matter of merely linking to contested content.
The solution here, again, lies in the application of a single publication rule under which only the original content is immediately actionable.
If I fisk an article from the Daily Mail and they are subsequently threatened with a libel action over that article, then until the legal position of the content is settled (either in or out of court) my repetition of the content of that article should not be actionable, provided that I acknowledge that the content in question is in dispute.
However, once such a case is settled one way or the other, I would be bound, on being informed of the outcome, to take action in a reasonable time to ensure that my own article reflects the outcome of the case, which could mean withdrawing the article or amending it to incorporate a statement of the outcome of the proceedings against the original source.
Fail to do so, and all bets are off and my article becomes actionable, where previously it would have been covered under the principle that it had been published in good faith.
That applies if I repeat any of the allegedly libellous content in the original source, but what If I merely link to an article without quoting any of its content? Well, provided that none of my own accompanying comments amount to libel, I should be required to do nothing, however the source should be required to ensure that if it withdraws the original article it leaves the page to which I’ve linked in place, with a statement explaining why the article was withdrawn and that any subsequent retraction and/or apology appear in the same place.
That’s the general principle, to which there will be exceptions, the two which come most immediately to mind being:
1) If it can be shown that I directly colluded in the publication of the libellous article, or was reckless in considering the reliability of the source, and
2) If I write my own article in such a way as to create the appearance that it is my own original work and not derived from another source – frankly is someone is dumb enough to steal content from another source and pass it off as their own, only then to find themselves on the wrong end of libel action, then that’s their own fault.
In both cases, the effective indemnity that would be in place until the question of whether the original source material was libellous or not would cease to function with immediate effect.
I’m not entirely sure that I’ve explained that too well, but to be clear the underlying principles I’m trying to get to are:
a) That jurisdiction should be clear and not all over the place as it is now, and
b) That bloggers should not be held liable for the repetition of, or linking to, allegedly libellous statements where they are acting in good faith and under a reasonable belief that those statement are true, where the question of whether those statements are libellous or not remains in dispute.
To put that last point into the context of the Usmanov case, the primary source of the material to which Usmanov objected was that written by Craig Murray and it is to Craig than any litigation should be directed and not towards bloggers, like Obsolete who was threatened, who repeated and commented on Craig’s article in good faith. While the matter of whether Craig’s remarks were libellous or not remains unclear, bloggers linking to or repeating those comments should be in the clear providing that Craig can be considered a reliable source – which I think he can – such that no action can be taken against any other blogger until Craig withdraws his comments and offers and apology or has his day in court and loses, at which point the outcome of the case would need to be reflected in articles that linked to or repeated Craig’s remarks within a reasonable time, after which they would become actionable.
If any of this makes sense, then hopefully you’ll agree that the framework I’m reaching for – although to achieve – is one that would be fairer and more reasonable towards bloggers but without placing too onerous a set of limitations on those who genuinely believe themselves to have been libelled and who with to obtain redress. After all, all that is being asked for is that an appropriate jurisdictional model is applied and that would-be litigants tackle the original source of a libel rather than seek to bully those who may comment on disputed statements in good faith.