02 Apr 13 | Uncategorized
This article was originally published on the Guardian Local Government Network
Blogger Jacqui Thompson is now £25,000 poorer after losing a libel action against the chief executive of Carmarthenshire county council, Mark James. The judge found the posts on her Carmarthenshire Planning Problems blog to be defamatory and that she was engaged in an “unlawful campaign of harassment, defamation and intimidation targeted against Mr James and other council officers”.
Yet while Thompson paid for the case out of her own pocket, the ratepayers of Carmarthenshire paid for the chief executive’s libel action. In these straitened times, is it really fair that taxpayer’s money is being used to fund a libel case?
Carmarthenshire council is not alone. South Tyneside council is paying for its chief executive and council leader to bring proceedings against one of its own councillors. In South London the Durand Academy, a primary school, has on multiple occasions funded libel claims. This is a live debate with the government’s Defamation Bill (the first wholesale reform of our archaic libel law since 1843 ) currently passing through parliament after a long fight by the Libel Reform Campaign. An amendment tabled in the House of Lords by the Labour party, with support from influential Tory Peer Lord McWhinney and Liberal Democrat Peer Anthony Lester will (if passed by the Commons) block corporations and public bodies from suing individuals for libel, unless the libel has caused “substantial financial harm”. However an important loophole remains.
Public bodies themselves cannot sue for defamation. Derbyshire county council vs. Times Newspapers Ltd (1993) rules out public bodies from suing for libel. Lord Keith’s judgement makes clear the importance of “uninhibited public criticism” of democratically elected and public bodies.
The remaining loophole is the judgement does not prevent public bodies from using taxpayer’s money to fund libel actions on behalf of their staff.
In the Carmarthenshire case, Mr Justice Tugendhat reiterated the importance of the bar on public bodies suing directly, and emphasised the greater latitude members of the public had in criticising public bodies, but did not believe that allowing councillors or officers of a local authority to sue for libel would infringe the right to freedom of expression. “The decision of the House of Lords is binding on me. But in my judgment there is nothing in the suggestion that it is contrary to Art 10 that a member or between officer of a local authority should be able to sue for libel,” he said.
He also refused to restrict the ability of public bodies to use taxpayer’s money to pay for libel actions on behalf of their employees saying that such indemnities needed to be challenged: “There are procedures by which the grant of an indemnity by a council to an employee in respect of the costs of litigation can be challenged.”
Yet the procedures to challenge are complex and only relate to whether the local authority is funding the libel action to circumvent the Derbyshire principle. The default position in law established by Mr Justice Sullivan in Comninos vs Bedford borough council is that councils can fund libel actions on behalf of their staff – unless challenged. Local bloggers can now find themselves sued by a council employee backed with the full financial weight of the local authority, and yet will only know whether this is legal or not if they challenge this funding separately. It’s hard to see how any blogger or citizen critic could fund such a challenge unless they have very deep pockets indeed.
These indemnities have a corrosive effect on local democracy. Local authorities, sensing the controversy over using taxpayers’ money to sue their own citizens, are not transparent about the costs of these claims.
I tabled a freedom of information request to Carmarthenshire to find out how much it had spent on the libel action. It refused to disclose this information, citing an exemption. From a wider request, I did find out that the council spent £891,433 in legal fees in 2012. This is the same county council that is making 450 people redundant and closing down training services for disabled people.
The defamation bill will continue the bar on public authorities directly suing their critics for defamation. Yet, without action to stop them directly funding libel actions on behalf of councillors or officers, the power and resources of the state can still be used to silence citizen critics.
It is self-evident that public servants should be able to sue for defamation if directly and unfairly criticised, but it is not fair to expect taxpayers in this period of austerity to pick up the bill.
Mike Harris is head of advocacy at Index on Censorship and the vice-chair of Lewisham council
18 Mar 13 | Uncategorized
Dear Friends
There has been some important news today. An agreement has been struck to remove the ‘Leveson’ amendment to the Defamation Bill. This is welcomed news. All of your letters to MPs and the Prime Minister have made it clear why the Defamation Bill matters, and why it must not be caught up in the debate about press regulation. Thank you so much for taking up the cause so actively.
We are still waiting for confirmation that the Defamation Bill will be back before Parliament in the next couple of weeks, so if you haven’t written to your MP or the Prime Minister already, could we urge you to do that now?. We also have much to do to make sure that all MPs (and especially those who joined Parliament in 2010) know about the injustices that gave rise to the Bill. We are meeting with as many as we can to talk about ending libel tourism, the hurdle of “serious harm” to prevent vexatious cases, restrictions on corporations suing individuals and a new public interest defence.
As soon as we have further information about a timetable for the Defamation Bill returning to the House of Commons we will let you know.
Best wishes,
Síle and Mike
25 Feb 13 | Uncategorized
Elias Kifle is an Ethiopian journalist who runs a news website, the Ethiopian Review, from his exile in the United States. He is a fierce critic of the Ethiopian government, which is among the top ten “jailers” of journalists worldwide, and he has twice been sentenced to life imprisonment by it — once for treason, in 2007, and once for supposed “terrorism”, in 2012.
Yet, in an unlikely twist of fate, the Ethiopian authorities are not the only ones pursuing him in court: Elias Kifle’s name appears with some regularity in the cause lists of the London libel courts. Although his website is run from the US, publishes to an Ethiopian audience on matters concerning Ethiopia, the London courts have warmly welcomed those who wish to sue him for libel. Prime amongst his pursuers has been Ethiopian-born billionaire, Sheikh Mohamed Al-Amoudi.
Mr Al Amoudi, a businessman so keen to preserve his reputation that his Wikipedia entry has been flagged up as inappropriate because it has been edited by people who have a “close connection” with him, has been granted two default judgments against Elias Kifle: a £175,000 award made in 2010, and a £180,000 award made last week.
Being based in the States and lacking the financial means to hire lawyers, Mr Kifle chose not to defend either of these claims. Last week’s case was allowed to proceed because of Mr Al Amoudi’s business activities and reputation among Ethiopians in London, five of whom gave evidence as having read the piece in question; the fact he is a “frequent visitor” to London; and the fact that Mr Al Amoudi’s children were educated in England. The judge, Mr Justice Eady, does not appear to have considered whether it is even remotely feasible for an Ethiopian journalist exiled in the US and who runs a news website on a shoestring budget to obtain the services of libel defence lawyers. Instead he cites Kifle’s rude responses to Al Amoudi’s lawyers as evidence of Kifle’s intent to wage a “campaign of denigration … without ever having to face [Al Amoudi] in court”.
In many ways, there is nothing new about this — readers of this website will be familiar with the Ukrainian website being sued in London by a Ukrainian oligarch over articles published in Ukrainian; and a few years ago my organisation, the Media Legal Defence Initiative, had to call on the pro bono services of media lawyer Mark Stephens to neutralise a London libel threat against the Nepali Times (which, for the avoidance of doubt, publishes from Kathmandu, Nepal). In both these cases, as in Kifle’s case, the claimants could prove some connection to London — not surprising since most of the world’s nationalities are represented there and the publications in question were accessible online.
But in all these cases, the courts have completely failed to appreciate the difficult position of foreign defendants. Judges don’t appreciate the real chilling effect exerted by the financial cost of defending a libel suit in London (estimated in an Oxford University study reporting as more than a hundred times more expensive in London than elsewhere in Europe). Why should a defendant in the US, Nepal or Ukraine be expected to rack up hundreds of thousands in legal fees (assuming for the moment they have that kind of money in the first place) when they are unlikely to recover this even if they win? And is it really that surprising that an exiled journalist twice sentenced to life in prison displays a certain amount of “scorn” for lawyers and legal proceedings (Mr Justice Eady’s disdain of Elias Kifle and his cavalier attitude to Al Amoudi’s lawyers is evident)? Even if they had a choice — which they do not, because they have no money — many defendants in these matters will prefer to suffer a default judgment, even if that means they will not be able to set up business in London in the future, over certain bankruptcy even if they win a case.
Over the last few years, libel tourism cases have continued to pop up despite international outrage. The US has adopted federal legislation barring the enforcement of English libel judgments — and even allowing for counterclaims — and last year, the Council of Europe adopted a recommendation on libel tourism noting that “[p]rocedural costs may discourage defendants from presenting a defence thus leading to default judgments.”
If the Defamation Bill goes through, the end of the phenomenon of libel tourism may be in sight. Under the new regime proposed by the bill, currently in its final stages in Parliament but in danger of disappearing in the Leveson maelstrom, libel proceedings against foreign defendants cannot proceed unless London is “clearly the most appropriate place in which to bring an action in respect of the statement”. Ministers have made it clear that this means judges must take into account the procedural (un)fairness of requiring a foreign defendant to travel thousands of miles and/or engage lawyers they cannot afford. Let us hope judges will apply this in the spirit it is intended — and let’s hope the bill is enacted; it would mean Elias Kifle’s name will appear in the London cause lists no more.
Peter Noorlander is CEO of the Media Legal Defence Initiative, an organisation that defends journalists’ rights and provides legal aid to journalists around the world
21 Nov 12 | Uncategorized
The Guardian is reporting that lawyers for Lord McAlpine, who was horrendously slandered as a paedophile after a Newsnight report alluded to a “senior Conservative” involvement in a child sex scandal, are looking into the possibility of criminal prosecutions of Twitter users who wrongly identified him.
There is no doubt that accusations of child sexual abuse are very serious. If you asked people on the street to come up with an example of a libellous accusation, chances are most would say “calling someone a paedophile”.
McAlpine has clearly been defamed, and is entitled to seek reparation.
But the McAlpine legal team are apparently investigating pursuing the case(s) under the Malicious Communications Act 1988.
Here’s the relevant text of that act, worth reproducing in full
(1) Any person who sends to another person—
(a) a [letter, electronic communication or article of any description] which conveys—
(i) a message which is indecent or grossly offensive;
(ii) a threat; or
(iii) information which is false and known or believed to be false by the sender; or
(b) any [article or electronic communication] which is, in whole or part, of an indecent or grossly offensive nature, is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
(2)A person is not guilty of an offence by virtue of subsection (1)(a)(ii) above if he shows—
(a)that the threat was used to reinforce a demand [made by him on reasonable grounds]; and
(b)that he believed [and had reasonable grounds for believing,] that the use of the threat was a proper means of reinforcing the demand.
(2A)In this section “electronic communication” includes—
(a)any oral or other communication by means of a telecommunication system (within the meaning of the Telecommunications Act 1984 (c. 12)); and
(b) any communication (however sent) that is in electronic form.]
(3) In this section references to sending include references to delivering [or transmitting] and to causing to be sent [delivered or transmitted] and “sender” shall be construed accordingly.
(4) A person guilty of an offence under this section shall be liable on summary conviction to [imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both].
There are two pertinent issues raised here: what is “sending” a communication, and the intent of the message.
As social media such as Paul Chambers have learned to their cost, the legal definition of sending a message online seems to differ from most users’ understanding. A phonecall, text or email would suggest “sending” to most people, but we wouldn’t necessarily consider a tweet or a Facebook update as the same thing. The definition has evolved far beyond the original purpose of laws on communications, which were intended to protect people from harassment by, say, heavy breathers, or hate-mailers.
Secondly there is the issue of intent. It seems unlikely that people who tweeted alluding to false rumours about McAlpine intended to cause “cause distress or anxiety to the recipient”.
Additionally. “the recipient” is an interesting concept here: when we tweet, who exactly is the “recipient”. If we send a direct message, or include someone’s handle in a tweet, then we can identify a “recipient”, but what of a straightforward tweet, is the “recipient” so clear?
Much has been written on this blog about the use of inappropriate legislation in social media prosecutions. This would appear to be another case.
There are (very problematic) civil laws on libel, and there are criminal laws on harassment. While not downplaying McAlpine’s ordeal, we must be vigilant against the increasing criminalisation of online speech.
