05 Feb 10 | Comment, News and features, Uncategorized, United Kingdom
British courts represent a serious threat to freedom of expression, our libel laws suppress free speech around the world, argues Ken MacDonald
Prominent amongst those things that we believe define us is our ability to exercise our vocal chords. This right is something we instinctively feel should only be limited in the most exceptional circumstances. And we are right to take this view.
But I think we need to acknowledge that the freedom to speak frankly and freely has been under threat in our country in recent years. Sometimes it seems that Home Secretaries have pretended to promise boundless security and the rest of us have suffered the consequences.
So this debate is not just about defamation and privacy laws and libel tourism. And it goes beyond superinjunctions and the less than attractive corporate bullying that we see of scientists and researchers.
It includes the broadening of criminal speech, so that even religions, belief systems, are granted the special protection of the law and you can commit a crime by describing them in a particular way.
And it’s about terrorism legislation. It’s about criminalising the possession of articles, often consisting of books freely available on the Internet, and foolish and unnecessary new offences of encouraging terrorism, as though incitement were no enough.
So where do we place English libel law in this battle ground? How does it face up to this shining principle, this right to speak freely, and to exchange views and ideas without the fear of the dock or the witness box? Which side is our libel law on?
Well, the Americans are pretty clear. Many of their state legislatures have enacted laws protecting US citizens from the chilling grasp of our current law, by making English libel awards unenforceable in US courts.
And now the US House of Representatives is considering a bill to protect all American citizens in the same way.
Of course the Americans have long given free speech far greater protection than we have. To their credit, many of us would say. But it’s not just the Americans.
The United Nations Human Rights Committee has said that our libel law was encouraging critical reporting on matters of serious public interest and adversely affecting the ability of scholars and journalists to publish their work.
Critically it said the internet meant that all this was having a depressing effect upon freedom of expression across the world.
Let me give some examples:
October 2007, Kiev Post story about allegedly corrupt land deals in that city. Obviously written in Ukrainian. Only 100 subscribers here. Yet Rinat Akhemetov was permitted to sue here.
January and February 2007. A Ukrainian Internet news sites published an article about the same man’s youth. A hundred or so subscribers here. Again he was allowed to sue here.
Now Ukraine is probably a country that could do with more, rather than less, free speech. To put it in moderate terms, it’s a shame our courts are being used to deliver the opposite.
And it’s not only foreigners who feel the chill wind of all this.
A UK hospital consultant speaking at a medical conference in North American criticised a new piece of medical equipment. A specialist Canadian website carried his comments. He’s now being sued, not in North America – where the claim would be thrown out with contempt – but here by the manufacturer.
And famously, Simon Singh, the well-known science writer. He wrote an article in the Guardian saying that the British Chiropractic Association ‘happily promotes bogus treatments’.
Since their treatments include the suggestion that spinal manipulation can cure migraine and eliminate ear infections, I’m tempted to express an opinion of my own. But I’d better not. The BCA are suing Singh. Personally.
Incidentally, I see he had an interlocutory appeal listed in the our of Appeal later this month. Interestingly, it is apparently to be heard by the Lord Chief Justice, the Master of the Rolls and Lord Justice Sedley.
Perhaps the court will say that our law should be nurturing the free exchange of ideas. It should be protecting research and science. It shouldn’t encourage corporate bullying. It should allow free and autonomous people to be thoroughly offensive to one another. And it certainly shouldn’t have any role in shielding chancers and charlatans.
Above all, our law should not associate our country with the suppression of free comment or the stifling of information so that it dies before it can pass around the world. We don’t really want to be discouraging journalists in the Ukraine.
None of this is to say we don’t need libel laws. Of course we do. Malicious and deliberate falsehoods should always be actionable. Gross distortions and inaccuracies must be susceptible to challenge. Powerless people need to able to protect their reputations in the face of powerful media onslaught.
But the law should be set up to interfere in the minimum way with free expression.
Jack Straw has set up an inquiry into our libel laws. It has a broad based membership. Let me make conclude with some modest suggestions.
Single publication rule
In an internet age, we need to get away from the idea that every publication is a separate offence. We should replace Duke of Brunswick rule, which is surely showing its age with a defence of the non-culpable republication.
Jurisdiction rule
This is particularly damaging and has led directly to some of the causes I described earlier. We should prefer the American rule.
A claimant should have to show that a defendant’s Internet publication is targeted directly at the state in which a case is subsequently brought.
In the US, the fact that a publication is merely available in the jurisdiction is not sufficient to found jurisdiction.
Denying corporations the right to sue
In Australia, bodies of over 10 people are prohibited from suing unless they can show malice or deliberate recklessness. Again, this would have prevented some of the cases I have described.
Corporations have a wealth of other means for counteracting inaccurate claims about them. Advertising, PR, access to the media etc. They really do not need to bring personal claims against scientists. Not if they want to retain any public respect.
Libel tribunal
A form of cheaper arbitration with the power to order appropriately prominent retractions and apologies. And a power to order suitably capped damages. Retraction and apology should be at the heart of any system of remedy.
And what about the other side. One of the reasons that public are not more exercises about these issues is probably because the press have long behaved so badly that no one cares if their expression is restricted. Richard Desmond’s newspapers’ vile attacks on the McCann’s are just one example.
But this public cynicism is very dangerous. It devalues something in all of us. And it creates a climate in which repression becomes too easy
So perhaps public confidence needs boosting.
Independent regulation of the press
This one that isn’t spoken about much. Perhaps it deserves an airing. The press may think the PCC works, but they are living in a dream world. Nobody else does
Actually, self-regulation doesn’t work in any sphere-and newspapers are the first to criticise other professions that control themselves in this way. Why? Because it has no credibility. The public doesn’t begin to trust it – and they’re right not to do so.
We have independent regulation of television through Ofcom. Does that inhibit BBC News for doing its job. Is ITV stymied by the regulators?
More acknowledgement by the press of their own failings would usefully go side by side with some of the reforms I have suggest.
Sir Ken MacDonald QC practises from Matrix Chambers and was director of public prosecutions, 2003-2008, he is also a trustee of Index on Censorship.
This is an edited extract of a speech he delivered last night at Gray’s Inn.
03 Feb 10 | Uncategorized
It all began innocently enough: just before Christmas, Sunday Times journalist John Burns wrote a piece lamenting the shortcomings of blogging in Ireland. Leading bloggers naturally begged to differ.
A month later, the spat was picked up by Trevor Butterworth writing on Forbes.com, who noted that “it’s hard to think of a free country more suited to blogging than Ireland”. By the same token, it’s at least as hard to think of a country more given to litigation; and the point was illustrated by a story retailed almost en passant in Butterworth’s piece:
As one journalist told me, Ireland’s media is currently abuzz over a “confidential” legal settlement against a blogger, who allegedly had to pay almost $140,000 in damages for a libelous post, seen by few, swiftly purged from the site, and readily apologized for.
This was intriguing. By the end of the week, John Burns in the Sunday Times had the
full story:
A blogger has agreed a €100,000 settlement after libelling Niall Ó Donnchú, a senior civil servant, and his girlfriend Laura Barnes. It is the first time in Ireland that defamatory material on a blog has resulted in a pay-out. … In December 1, 2006, a blogger who styles himself as Ardmayle posted a comment about the couple … Following a legal complaint, he took down the blog and in February 2007 he posted an apology which had been supplied by Ó Donnchú’s and Barnes’ lawyer … However, the pair subsequently issued separate proceedings. It is understood that the €100,000 settlement was agreed shortly before the case was due before the High Court.
Indeed, there had been quite a detailed report at the time in the Sunday Independent; and in the last week, many blogs have pored over the story.
There’s nothing new in online defamation; the same basic legal principles apply online as they do offline; the medium may change, but the legal consequences of the message remain the same. But the story does raise some interesting legal issues. Mark Coughlan on TheStory.ie pointed out that, before the storm blew up this week, Ardmayle had been “little known, to say the least”, and he quite rightly queried the actual damage the blog had done to the plaintiff’s reputations. UCD law lecturer TJ McIntyre picked
up that point:
The level of damages in defamation reflects the extent of publication — i.e. the extent to which the defamatory material was actually read. This is not (despite the best efforts of plaintiffs’ lawyers) the same as the extent to which it might have been read. Consequently (leaving aside other factors such as the gravity of the allegations) damages should be greatly reduced where the audience can be shown to be negligible. Potential readability worldwide notwithstanding.
For him, therefore, the case highlights the importance of keeping good server logs to counter the all-too-easy assumption that “availability online automatically equals a mass audience”.
Ireland’s libel laws have recently been overhauled by the Defamation Act, 2009, which came into force on 1 January this year. Section 31(4) provides that the court in a defamation action shall have regard to a range of factors in making an award of general damages, including:
(b) the means of publication of the defamatory statement including the enduring nature of those means,
(c) the extent to which the defamatory statement was circulated, … [and]
(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement …
These considerations tend to reinforce TJ’s point about the importance of keeping good server logs. It is hard to tell from the reports whether any of the Act’s defences might have been available to the blogger, though the new defence of fair and reasonable publication on a matter of public interest, whilst hobbled, may have done.
The Act is a welcome, but incomplete, reform — incomplete not least because it takes little account of the increasing trend towards online communication. In particular, it does not attempt to achieve inter-operability between its restatement of the traditional defence of innocent publication and the defence provided to intermediary service providers by the implementation of the E-Commerce Directive.
Finally, there are questions of the compatibility of this kind of outcome with the free speech provisions of the Irish Constitution and of the European Convention on Human Rights. There are, in particular, emerging arguments that various European Courts have clearly moved to grant traditional press freedoms not only to traditional media but also to online actors such as bloggers engaged in “the creation of forums for public debate”.
This might not have protected Ardmayle’s obscure blog, but if — contrary to the views John Burns expressed in the article at this beginning of this post — the Blog O’Sphere continues to develop as a vibrant forums for public debate, then future bloggers in Ardmayle’s shoes may be able to rely on the Constitution and the Convention. Until then, we will all have to tread softly.
Dr Eoin O’Dell is a Fellow and Senior Lecturer in Law in Trinity College Dublin; he blogs at Cearta
