Law Reform

Bloggers and Libel

Sunny has written an excellent piece on bloggers and libel, which you should read in full:

Much of the work done by this small army of citizen journalists is made difficult by libel laws stacked in favour of the rich, powerful and downright vexatious. At the convention’s Bloggers Summit, libel laws were the main concern on people’s minds because of worries that anyone could be sued for comments posted to their blogs – even if subsequently removed after complaints. It’s an issue that goes to the heart of our democracy. Right now, it’s not even clear if an earlier link to a blog now publishing something potentially libellous is an act of perpetuating libel itself.

There’s several ways the law could be changed to make things easier – as I’m not an expert, I won’t go into them.

But there’s a key issue that may be missed out: the prohibitive cost of defending or at least getting rid of a baseless claim makes it very difficult for anyone without deep pockets to justify taking any chances. Even if the principles behind libel law remain as a result of this consultation, they need to stop being so lucrative for lawyers and become more useful for people.

There’s no disagreement between bloggers here.

Frankly, all bloggers walk a tightrope, merely by reason of hosting a forum in which people are allowed to speak their minds. Libel law, as it stands, makes blogging a high risk sport.

Here is a short position piece I wrote for Index on Censorship’s summit on blogging and libel that encapsulates my view:

Blogging, as a medium, is particularly responsive to the mischief that the law of defamation is designed to tackle. There is, accordingly, a strong argument for the reform of the law, in order to protect both the reputations of private persons while promoting the scrutiny of public figures. First, blogs trade on their reputations. Everything a blogger says is open to comment, often on their own blog. If a blogger gets a name for making things up, or sloppiness, their reputation is quickly destroyed, and their ability to defame, limited.

Secondly, because blogs are very cheap to set up, a person who believes that they have been defamed can quickly and easily set up their own website to respond to the allegations against them.

Thirdly, blog posts are easily updated. Therefore, if a person complains about a defamatory passage, a good blogger will acknowledge an error, or respond to the allegation.

Paradoxically, the threat of defamation makes it less likely that certain of these remedial steps will be taken. Libel law has a chilling effect on politeness, and the likelihood of receiving a swift correction, clarification, or apology.

My personal experience of defamation law has been this. I was sent a letter before action, written by the now defunct firm of solicitors, Dean and Dean, on behalf of Mohammed Sawalha, a man who was identified by the BBC as a fugitive Hamas commander. The case has not been pursued. Nevertheless, I spent a great deal of time preparing to defend myself against this groundless case.

Sawalha’s case against me was “Lawfare”: a strategy pursued by certain Islamist groups, connected to terrorist organisations, to raise the “cost” of discussing the evidence relating to those groups’ activities. Sawalha’s case against me was a prime example of the technique in practice.

I would hope that any review of defamation law brings us closer to the position in the United States, in which individuals and groups which engage in public politics, are not able to use the law of defamation to prevent critics and commentators from providing robust and healthy scrutiny.

The only bright side of all this, is that most people who sue for libel are scoundrels, and the very fact that they threaten libel proceedings only advertises that fact.

To be honest, I can’t see much value in a law of defamation. There’s some case for it as far as trade libel is concerned (e.g. “Franks Restaurant will give you food poisoning”), perhaps.

But most defamation that ought to be actionable, should be treated as an aspect of the existing law of harassment, or possibly privacy.

Libel law is a bit like duelling: a practice which it is sometimes said to have replaced. Well past its sell by date.

UPDATE

Just for the record, I thought I’d post my comment to Conor, explaining why I wouldn’t sue for libel, in the main body of this text.

Look, I would not sue anybody for libel. I just wouldn’t. I could absolutely clear up if I did, of course – there are entire websites as far as I can tell devoted to attacking me in the nastiest most personal terms. I am repeatedly called a racist by members of extreme Left wing sects. I am also attacked by those on the far Right.

As Molesworth would say, I diskard them uterly!

In fact, I regard it as a badge of honour that I’m attacked by people whose judgement in all matters is utterly hopeless, and the antithesis of everything I believe in.

This is not to say that I suffer no damage. Of course I do.

But, look. I put myself and my opinions into the public arena. I expect to criticise others, and frankly, that means that they have a pretty basic right to have a go at me. I had a choice here. I chose to engage in public debate.

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