by Unity

I don’t usually do requests, but as libel law reform is a particular interest of mine and a subject I’ve blogged on previous occasions, I’m more than happy to rise to the challenge set by ‘organic cheeseboard’ in comments under Sunder’s commentary on yesterday’s events.

but for god’s sake could SOMEONE writing about this stuff PLEASE offer an idea of what those reforms might actually look like?

Fair enough, lets start with an internet specific reform which, as a blogger, is number one on my own shopping list of reforms, and a measure that we absolutely do want to import from our cousins over the the other side of the Big Pond.

Section 230 of the Communications Decency Acy specifies simply that:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Under English libel law, at present, web hosting companies may treated as the publisher of, and held liable for, [allegedly] defamatory content published to their servers by a third party despite having had no absolutely part in in, or prior knowledge, of the that material’s publication. Likewise, bloggers and forum operators can be sued over comments, posted to their blog/forum by visitors, over which they will have had no control whatsoever unless they actively pre-moderate all such comments.

There’s a basic issue of fairness here.

Why should I (or Dave Osler, for that matter) face the rap, and a phenomenally expensive and time consuming High Court action, as a result of material posted to my blog by a visitor with my express knowledge, particularly if I then behave entirely responsibly by removing the allegedly defamatory material with n a reasonable amount of time after being made aware of its existence?

That’s the exact situation that Dave finds himself in at the moment, one that simply could not arise in the US.

There is also a second important issue here.

By treating web hosts as the publishers of material uploaded to their servers by third parties, the law as it stands encourages would be litigants to bypass the due legal process entirely by threatening to sue the hosting company, which will almost always prompt the company to roll over and take matters into its own hands irrespective of the views/intentions of the blogger/forum owner to whom such a threat directly relates.

That’s what happened to Craig Murray and, by extension to Tim Ireland, Boris Johnson and Bob Piper.

Craig was perfectly content to stand his ground and defend what he had to say about Russian/Uzbek oligarch Alisher Usmanov in court, going so far as to specifically invite a libel action to put his comments to the test. That rigfht was, however, temporarily taken entirely out of his hands by the company that hosted his blog, which rolled over when threatened by Usmanov’s lawyers, Schillings.

Again, that cannot happen in the US, and its the main reason why I and many other bloggers choose to host our sites with American providers on US-based servers. It doesn’t prevent us from being sued for defamation, but it does stop would-be litigants trying to short-circuit the due legal process by threatening the hosting company, leaving the decision as to whether to stand and fight, or back down, in my hands and those of someone who has no effective means of accurately assessing the situation.

This has been under discussion for while amongst established bloggers from all parts of the political spectrum and its fair to say, having been part of those discussions. that there’s a clear consensus that we need provisions similar to those enjoyed by bloggers in the US. If blogging is to continue to be an interactive medium then, at the very least, web hosting companies should be afforded the same ‘common carrier’ status enjoyed by providers of telephone services, removing entirely their current liability for content housed on their servers, while bloggers and forum owners need provisions which limit their potential liability for third party comments to situations in which they fail to act responsibly when faced with a complaint that a comment may be [allegedly] defamatory, i.e. removal of such a comment within a reasonable amount time after receiving such a complaint should be sufficient to preclude any further action.

Target number two for urgent reform is the abominable multiple publication rule, which provides the foundations for England’s rapidly expanding libel tourism industry.

To save time, the background to this aspect of English libel law and the issues it raises are discussed here by Peter Noorlander. It is, however, worth noting that this rule has become so pernicious that, so far, the states of New York, Florida and California have enacted laws rendering High Court libel judgements based on this rule unenforceable in those states, and that a Federal law to the same effect may soon follow.

Thankfully, the days of the multiple publication rule (and libel tourism) may well be numbers as the Ministry of Justice is currently consulting on possible reforms, with the favoured reform option looking likely to be a single publication rule with an extension to the time limit within which a libel action may generally be brought to three years and an absolute limit of ten year.

In the circumstances, our best option at this time would clearly appear to be to support and, if possible, contribute to the MoJ’s consultation by supporting the proposal to do away with the multiple publication rule.

From there we need next to focus on the workings of two important legal principles within the framework of English defamation law, those of absolute and qualified privilege and malice both of which, if formulated well and applied in a nuanced and judicious manner, would allow us to afford a greater degree of protection to certain important types of speech without tipping English defamation law towards the kind of ‘free for all’ that exists in the United States in which public figures, in particular, have almost no possibility of obtaining redress even if what is written about them is verifiable a complete fabrication.

In comments, ‘organic cheeseboard’ makes the following observation:

Nick Cohen, who writes the ratbiter pieces in private eye and who thinks we should copy the American laws verbatim (not that he ever says that in the Eye pieces, natch). Now, I think that’s a really bad idea, given the state of the US news industry and the extent to which smears dominate political reporting and campaigning over there.

And, broadly speaking, I’m inclined to agree, although I’m much less concerned about the issue of political smears, which could more readily be dealt with in electoral law, than I am about the proliferation of the made-up celebrity tittle-tattle industry, which is getting bad enough over here as things currently stand.

In the US, public figures have to prove malice in order to mount a libel action against a publisher (in English law, malice is only a factor in determining damages) and this has created a gaping loophole in their defamation law in which an entire industry based on spreading made-up celebrity ‘gossip’ has flourished.

I recent read an article in which a journalist who’d worked on one of these downmarket gossip rags, the kind that invariably feature either Jennifer Aniston, Brad Pitt or Angelina Jolie on the cover every simgle week, blew the lid on the ‘journalistic’ methods by which they generate the constant stream of banal fictions on which their sales figure entirely depend, the short version of which being that they routinely buy in every paparazzi shot they can get hold of, pick out one that shows Brad/Angelina/Jennifer in a particular ‘mood’ and then make if a story to go with the photo. If Jennifer’s looking happy then, in made-up gossip world, things must be going well with her current boyfriend, or there’s a new man on the horizon or whatever, if she looks a bit pissed off then her relationship must be on the rock or she must still be pining for Brad. The real trick in all this is that today’s paps use high-speed digital cameras which can reel off tens, and even, hundreds of shots in rapid succession with the result that a couple of minutes worth of frantic snapping will give the magazine just about every possible ‘mood’ they could ever work with.

As I see it, what we need to be looking for is a framework in which the principles of absolute and qualified privilege and malice are balanced in a such a way as to ‘raise the bar’ on defamation actions relating to certain types of speech which we consider to be necessary and/or desirable in an open, democratic society.

This is view that I know will prove a bit controversial with some Lib Dem bloggers who debated this issue following Richard Dawkin’s appearance at their recent conference and who came down strongly against the idea that some type of speech should be regarded as being ‘more equal’ than other.

Personally, I take the view that there are certain type of speech to which a greater degree of protection from suppressive or censorious litigation should be afford, over and above the general protections given to all forms of speech.

Political speech, including criticism of politicians and public officials, which is absolutely necessary in a democracy, is one such category and one that the European Court of Human Rights already recognises as meriting an enhanced degree of legal protection. Whistleblowing is another, as- to my mind – is scientific ‘speech’ founded on evidence. Libel hearings are no place to resolve disputes over the merits, or otherwise, of claims which purport to be based on scientific evidence. This brief list is not exhaustive, nor intended to be so, but it does give a flavour of the kind of speech that we should by ‘hardening’ against private censorship founded on the abuse of defamation law because its in our interests, as a free and democratic society, to encourage and facilitate speech of this kind as a matter of public good.

Finally we come to matters of process at trial, in which those defending a libel action are unduly and unfairly burdened with presumptions that may have seemed reasonable in the 18th Century but which have should have no place in a 21st century courtroom.

The most notorious of these is, of course, the presumption that an allegedly defamatory statement is untrue unless proven otherwise by the defendant in circumstances in which the plaintiff need provide no evidence whatsoever to support their claim that the statement is untrue. Such a presumption may have suited the social mores of a society in which a gentleman was automatically though to be a man of honour but in this day and age such archaic and overly romantic notions can hardly be held to remain valid. That absolute presumption has to go.

In other forms of civil action, no such automatic presumption is made. Instead, at any given time, each party is obligated to produce evidence relating to their claim/defence (called the burden of going forward) which, if it gives rise to presumption of fact, places the burden of going forward onto the opposing party who may, then, introduce evidence to rebut that presumption. If the presumption is adequately rebutted then it ‘bursts’ (hence this is called the ‘bursting bubble’ approach) and that presumption can no longer be relied on.

That process, which does not rely on any absolute presumption at the outset, does not seem, to me at least, to unreasonably shift the advantage in libel actions towards the defendant, in seems only to place both parties on a more equitable inasmuch as both will be required, at various times, to produce evidence to support their case. In fact it may, in practice, have little or no impact on the prospects of those defending a libel action, at all, but it would remove the clear perception that such actions are loaded unfairly in favour of plaintiffs.

Beyond that, the presumption of damage, i.e. that a defamatory statement is automatically damaging, except where it can be shown that the plaintiff has no reputation to defend, also needs to revised such that the plaintiff must produce evidence to show both that their reputation and standing has suffered actual damage as a consequence of a defamatory statement and where compensation is sought in relation to such a claim, that, evidence of a material of loss is produced.

So that’s four areas in which reforms are needed;

One – ‘common carrier status’ – that should be easy to effect but which, sadly, is likely to meet considerable resistance from politicians given their overweening interest in forced ISP’s to police the Internet – I’m reliably informed that the ‘benefits’ of Chinese-style universal fire-walling was a hot topic of interest amongst some Tory MPs at their conference.

Two – changes to the multiple publication rule – that’s currently in the pipeline and needing support, and

Three – adjustments to the rules of privilege, malice and the procedure rules covering presumptions in libel actions, that need careful thought and better legal minds than this layman can offer to work up the details.

Now, what was Sunder saying about needing an effective campaign?

Oh, and support Dave Osler – that’s really important right now!

UPDATE

Apropos one ongoing libel case, Jack of Kent has just advised (by Twitter) that Simon Singh has been granted leave to appeal Justice Eady’s perverse ruling on the meaning of his comments on the BCA’s evidence and that this will be a full appeal, allowing Simon to reargue this point in its entirety!