The effects of the English libel laws on bloggers
To coincide with the publication of a new libel guide for bloggers, ‘So you’ve had a threatening letter. What can you do?’, Sense About Science is making available the following summary of the effects of the English libel laws on bloggers. This is drawn from cases that have come to attention since the start of the Libel Reform Campaign and on the results of a recent survey of bloggers. The summary has been shared with the Ministry of Justice and identifies the particular ways in which online forums are affected by the current laws.
1.0 Background and summary
1.1 Sense About Science is a UK charitable trust. We work with scientists, civic groups, policy makers and journalists to popularise tools of scientific reasoning and equip the public to make sense of science and evidence. In June 2009 in response to the Simon Singh case and a growing realisation that the libel laws were stifling scientific and medical debate we launched a campaign to Keep Libel Laws out of Science. In December 2009 Sense About Science joined with two other charities, English PEN and Index on Censorship, to form the Libel Reform Campaign, to seek major changes to the laws in order to protect free speech and the public interest.
1.2 The publicity following our publications and the cases against Simon Singh, Peter Wilmshurst and others attracted a lot of correspondence from a range of sectors including academics, historians, editors and publishers, consumer groups, documentary film makers and NGOs. Sense About Science has been contacted about libel threats received by online patient groups and by bloggers who write about medical conditions, consumer safety and scientific research. In response to a lack of information about the effects of the libel laws on these groups, we began documenting these cases and conducted a survey of online forums and writers in September 2010.
1.3 This memorandum summarises the concerns that have been raised. While by no means exhaustive it offers some insight into the particular ways in which online forums are affected by the current libel laws of England and Wales, notably:
- the individual and non-professional character of much online writing, and therefore the more pronounced inequality of arms, particularly where people are writing about companies, institutions and products;
- related to the above, the relative lack of familiarity with libel law and access to advice about handling complaints;
- the liability of ISPs, leading to material being removed without consultation with authors;
- and the vulnerability to legal action arising from the international availability of Internet material, and it being possible to republish old material by downloading it.
We hope that this will help inform discussions around the Government’s new Defamation Bill.
2.0 The survey of bloggers and user-generated content
The survey of online writers and communities in September 2010 asked bloggers and forum hosts about the effects of the libel laws on what they post and write. Most of the people who responded to the survey or wrote to us about threats they had received (around 40 individuals) were not professional writers or journalists but people who blog in their spare time in a personal capacity, maintain community forums voluntarily or post occasionally on sites like Facebook.
2.1 Online writers and bloggers work without the support of a large company
The producers of user-generated content are usually not trained journalists and do not have the resources of any organisation to support them. The people who responded to the survey all said they have difficulty understanding the laws and their own liability. They do not have easy access to specialist legal advice – they do not have the legal team of a traditional publisher to fall back on, specialist lawyers are hard to find outside big cities and are expensive. Several said that they had been surprised, on getting legal advice, to find that the threat made was not in accordance with legal protocols. Several online writers based outside the UK said it was impossible for them to find any guidance. Many responses emphasised vulnerability due to the lack of advice and infrastructure:
“The big difference…between independent writers and newspaper journalists is the lack of any protective infrastructure to back us up. If we are threatened, the entire responsibility falls on our shoulders.”
“While the threat looked impressive at first glance, my lawyer pointed out that it did not satisfy the requirements for a letter of claim - in particular failing to specify what the words complained of were.”
“This bluff [took] advantage of the fact that while the likelihood of the company taking real action seemed small, the severity of libel laws meant that the potential consequences of calling the bluff could be catastrophic for me.”
“Although I am not broke there is no way whatsoever that I could afford to pay for professional advice on this case.”
“Even being right and being able to prove your claim isn’t necessarily any defence if you can’t afford the cost of a libel case.”
“I naively had no idea how much personal financial risk and stress was involved in defending this truth, particularly when it involves things that wealthier people would rather were not written about.”
2.2 The decision to remove material is taken out of the author’s hands
Under the existing laws, internet service providers (ISPs), website hosts and search engines can be liable for material hosted by them if allegedly defamatory material is not removed as soon as they are made aware of it. [See case studies 4.1, 4.3, 4.5, 4.6]. This means that people who do not know the background of the material and who are not necessarily experts in the defences available to a libel threat are put in the position of deciding whether material should be taken down or not. This often leads to material that the writer would stand behind being removed by a company anxious to avoid a long and expensive potential case.
A blogger told us that “British ISPs seem to operate under a ‘remove first, ask questions later’ policy due I suspect to both the potential costs involved and a lack of legal training among staff.”
An academic who blogs said that a libel threat “led to [his] being thrown off [the university’s] server.” His blog was subsequently reinstated. Another academic blogger said he has had to agree not to write anything concerning the claims of a prominent individual in his field because the university’s consultations and responses each time a libel threat was received had become too expensive.
The ISP Association told us that the current libel laws “often put ISPs in a position of judge and jury over content, which is not ideal.”
2.3 The libel laws do not protect modern online publication
The rise of the internet has brought about a change in the way news, entertainment and discussion is published and shared. The definition of a publication in the libel laws has not being modernised to reflect this. The context of online publication is not taken into account in the laws. This makes the already complicated and inaccessible laws more unfriendly to bloggers and online forums.
2.3.1 A publication on the internet can be defined as a click on an article or a download of a webpage. The Duke of Brunswick from 1848 means that every publication starts a new limitation period so an online author could be potentially liable for a piece as long as the website remains online and someone clicks on it [case study 4.7].
2.3.2 Respondents to our survey write for small and specialist audiences. Their writing differs greatly in impact, style, quality and audience from a piece written for a national newspaper. Comments written on a blog might appear in a stream of hundreds. The defences in the current libel laws do not take the context of publication into account and demand the same standards for this conversational medium as for traditional journalism.
Posts made on online chat forums, described by Judge Richard Parkes QC as “no more than saloon-bar moanings”, have been subject to libel actions in the High Court [Case studies 4.2, 4.3, 4.5, 4.6].
Justine Roberts, founder of parenting site Mumsnet, observed “If a single poster makes a defamatory comment but 200 others refute it, shouldn’t the conversation as a whole be taken into consideration?”
2.4 Online writers are deleting material when they see nothing wrong with it
Most of the respondents to our survey had received at least one formal or informal libel threat (this is most likely because such people were more motivated to respond). A recurrent theme of their responses was the need to take down material because there is no other option. Some said that they found the experience very frightening and that it has affected what else they write.
Related points were:
“Although I believe both articles to have been accurate and defensible, in both cases I felt that I had little choice but to delete what I had written, as I simply would not have had the resources to defend myself in court…I know I’d almost certainly lose thousands even if I won (which would mean I’d go bankrupt)...”
“When I received a nasty threatening legal letter, the full costs and grief of defending myself in Britain’s unwieldy and archaic libel system became plain. The legal action never came to anything, and I didn’t take down any of the material that was complained about…The trouble is that even though I wasn’t frightened, my family was and I was put under a lot of pressure to stop writing on my blog.”
“To the best of my knowledge my article was accurate and defensible, and my key claims about this particular businessman had all previously been made in mainstream media articles which remain online today. But the experience was nonetheless intimidating, and served to deter me from investigating the issue any further.”
“I’m going to have to think about what this means for future blogging activity. I don’t yet know exactly what to say - or how to measure my words in future. [My experiences will] introduce a level of self-censorship that I had not been fully aware of before.”
“I got a salutary lesson of the unexpected reach of the English libel laws which made me very careful in any subsequent posts where I ventured an opinion on an individual.”
“I am also more aware of the risks of making statements about commercial organisations as a result of the Singh case.”
“Since then, I’ve censored what I write and even the subjects that I look at. I’m ashamed to admit that I’m cowed by the situation, but I am. It is really hard to sit on information if you know that publishing it might change the way that people think about things and I feel sad and regretful about this… If the British public, and the government, want a prompt flow of news relating to important public policy issues, writers need better protection.”
“There have been a number of occasions where I have declined to write a post, mainly using publicly available information, for genuine fear that my comments could be deemed libellous.”
2.5 Types of content
The survey asked about the kind of writing that was affected. Bloggers and online contributors mentioned the following, in order of frequency:
- Comment on companies (corruption, products and company behaviours)
- Comment on authority figures (qualifications, conflicts of interest, and undisclosed affiliations)
- Comment on community issues (schools, local politicians)
- Comment on other reporting
- Investigative reporting
3.0 Internet usage
The last attempt by Parliament to update our libel laws took place with the Defamation Act of 1996. The internet was then much smaller and very different. YouTube, Google, Twitter, Facebook and Wikipedia did not exist, and only a small number of newspapers had begun to put their publications online. Today there are over 148 million blogs identified in the world1, this figure having grown from 50 million in 20062. 75 million users are registered on Twitter, and 27.3 million Twitter messages are sent every day3. Facebook has 350 million registered users2 while Google registers 3 billion searches per day4.
4.0 Case studies
Complied by Rose Wu, Sense About Science
4.1 [1999] EWHC QB 244
GODFREY V DEMON INTERNET LIMITED before THE HON MR JUSTICE MORLAND
http://www.bailii.org/ew/cases/EWHC/QB/1999/244.html
The first case in England and Wales to involve an online publication was in 1999, when Demon Internet, a UK ISP was sued for allegedly defamatory postings made in newsgroups hosted by the ISP. Demon Internet were informed of the postings but failed to remove them, and as a result were ruled to be partly responsible for the publications. Demon Internet were ordered to pay £15,000 in damages, as well as the legal costs of the claimant which were estimated at around £20,000
4.2 [2006] EWHC QB 860
KEITH-SMITH V WILLIAMS before HIS HONOUR JUDGE MACDUFF QC
http://vlex.co.uk/vid/52875166#ixzz154vhbrdB
The first case where an individual was successfully sued for libel over comments made on an internet chat site took place in 2006. Tracy Williams was ordered to pay £10,000 in damages to UKIP parliamentary candidate Michael Keith Smith after she posted insulting allegations on a Yahoo! message board in April 2004. Smith had considered suing Yahoo! but was unable to as their discussion board is hosted in the US and falls outside UK law. Instead he and his solicitors obtained a court order to force the telecommunications company NTL to hand over Ms Williams’ personal details. ” The obvious and immediate potential ramification is that there will be more cases like this,” said Richard Shillito, a partner at the law firm Farrer & Co. “One sees on these sites particularly unrestrained comments that people make in the heat of the moment without thinking of the legal consequences.”
4.3 [2007] FORD V MUMSNET (case settled out of court)
In 2007, the parenting website Mumsnet which receives tens of thousands of comments a day was forced to apologise and pay a five-figure settlement to childcare expert Gina Ford. Ford sued Mumsnet over comments posted on the site’s discussion boards . Although Mumsnet said they would have preferred to fight the case in court, they decided to settle the case out of court rather than risk losing tens of thousands of pounds in a libel battle.
4.4 [2007] AKHMETOV V OBOZREVATEL
A Ukraine-based internet news site Obozrevatel which publishes in Ukrainian and has a limited readership in the UK was sued in 2007 by Rinat Akhmetov, a wealthy Ukrainian businessman. Akhmetov sued the news site over a series of articles published about his younger years, but in London’s courts rather than in Ukraine. Akhmetov was allowed to bring his case before the courts in England due to the news site’s small readership in the UK. Judgement was passed in Akhmetov’s favour along with damages of £50,000 and costs.
4.5 [2007] EWHC QB 2375
SHEFFIELD WEDNESDAY FOOTBALL CLUB LTD V HARGREAVES before RICHARD PARKES QC
http://vlex.co.uk/vid/52875166#ixzz154vhbrdB
In 2007 Owlstalk, a site produced by Sheffield Wednesday fans for fans, found themselves sued by Sheffield Wednesday Football Club. SWFC sued the supporter’s forum over messages posted online criticising the club’s board and management. These included postings such as ‘What an embarrassing, pathetic, laughing stock of a football club we’ve become.’ The club initially brought legal actions against Owlstalk owner Neil Hargreaves to force him to reveal the identities of individuals who had posted the allegedly defamatory comments. The judge presiding found that seven of the eleven postings bordered on the trivial, and that to order disclosure of the authors would be ‘disproportionate and unjustifiably intrusive.’ The remaining four identities were to be revealed, although the case was eventually dropped.
4.6 [2009] EWHC QB 1765
METROPOLITAN INTERNATIONAL SCHOOLS LIMITED V DESIGNTECHNICA CORPORATION & ANOR before THE HON MR JUSTICE EADY
http://www.bailii.org/ew/cases/EWHC/QB/2009/1765.html
A UK based online-training service Metropolitan International Schools Ltd which trades as “SkillsTrain” and “Train2Game” brought libel proceedings in 2009 against Digital Trends, a consumer review and discussion site for electronic products, services and trends. The libel complaints were made over postings on bulletin boards which accused SkillsTrain of being a scam and violating U.K. trade laws and consumer credit laws. Train2Game and Skillstrain were awarded £50,000 in damages, an unusually high award of damages for a company claimant. The case highlighted the consequences for website owners who did not remove allegedly defamatory content as soon as they were made aware of it. As well as suing Digital Trends, Metropolitan International Schools Ltd also sued Google
UK Ltd and Google Inc, after internet searches for Train2Game threw up the result ‘Train2Game new SCAM for Scheidegger.’ The judge ruled that Google could not be regarded as a publisher of the words complained of, whether before or after notification.
4.7 [2010] EWHC QB 616
BUDU V THE BRITISH BROADCASTING CORPORATION before Mrs Justice Sharp DBE
http://www.bailii.org/ew/cases/EWHC/QB/2010/616.html
Libel proceedings were brought in 2009 against the BBC by Sam Budu in respect of three archived articles published in mid 2004. The articles were originally published on the Cambridgeshire section of the BBC website and concerned the decision of the Cambridgeshire Constabulary to withdraw an oral job offer made to Budu after questions were raised about his immigration status. Within weeks of first being published, the articles became accessible only in the BBC archive, and could only be found via search engines. The claim was struck out with the judge commenting that ‘permitting the action to continue would constitute a disproportionate interference with the BBC’s rights and would be an abuse of process’.
4.8 [2010] EWHC 1075 (QB)
KASCHKE V OSLER before THE HONOURABLE MR JUSTICE EADY
http://www.bailii.org/ew/cases/EWHC/QB/2010/1075.html
In 2009 local political activist Joanne Kaschke sued blogger Dave Osler, and also in a separate action bloggers John Gray and Alex Hilton, over blogposts which discussed her past political activities. Osler wrote a blog in 2008 which summarised one of Kaschke’s own blogs where she discussed events in 1970s West Germany which led to her wrongful arrest and detention. He linked to Kaschke’s blog twice, and everything in his blog could be sourced and checked against what she had written herself. John Gray similarly summarised Kaschke’s blog, again providing references and linking to Osler’s blog as well. Gray’s blogpost was hosted on the LabourHome site, run by Alex Hilton. Both cases were eventually thrown out in 2010.
4.9 [2010] KWIKCHEX V TRIPADVISOR (potential libel suit)
In 2010, KwikChex, a Bournemouth-based reputation management firm, began canvassing leisure establishments including hotels and restaurants to join a “group defamation action” against TripAdvisor, Britain’s biggest travel review website. TripAdvisor carries reviews of hotels and other leisure establishments from members of the public. Kwikchex’s founder, Chris Emmins, said 420 firms had paid £170 each to join the action by September, and hopes to have 1,000 firms in total. Tripadvisor is not commenting on the action.
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