Friday, September 21, 2007

Directing action against UK libel laws

With reference to the case of Tim Ireland and Jabba the Cunt, Unity has written a typically long but analytical post advocating direct action.

The first problem that he identifies is that, in the UK, web hosts are deemed to be the publishers of any material hosted on their servers.

This should be changed as soon as possible, as this would at least allow the blogger to decide what action they wish to take rather than having their servers whipped away from under them (and having their professional work compromised).
There is a simple change that could easily be made that would improve things almost immediately by freeing UK-based web hosts from the threat of litigation as nominal publishers of third-party content hosted on their server, one that could be put in place by means of a short Private Member’s Bill which would put in place legal provisions similar to those set out in Section 230 of the US Communications Decency Act. The principle this sets out is entirely straightforward:
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.

In short, this removes web hosts from being held liable, as publishers, for content that they host but in which they have taken no active part in either its authorship or publication.

Quite. So, a little action to stimulate a Private Member's Bill would be the appropriate action here. However, I suspect that the government will be less than anxious to implement this. Why?

Well, it very simple: it gives them far more leverage to pull material that they wish to have removed. Any refusal to put this through would, I guarantee, be countered with arguments that it would allow terrorists to plot the deaths of millions or for kiddie-fiddlers to get their porno with impunity. Therefore we should be ready to provide our own technical arguments to rubbish this idea.

The next and most pressing problem that we face is Britain's draconian libel laws; indeed, there is a long article in the latest Private Eye details how we have become the preferred country for "libel tourism" (issue 1193, p25: The books, the sheikh, the writs and his lawyer...).

The problems, as Unity points out [his text in <blockquote>], are multifarious.
  1. No presumption of innocence for the accused.
    What makes the UK’s libel laws so vicious is, in part, that it places the burden of proof entirely on the defendant. The law assumes that any statement that is alleged to be defamatory is deemed to be false unless the defendant can prove otherwise, operating under strict liability. Moreover, in the case of ‘public figures’ the question of whether a statement was made with ‘actual malice’ (knowing falsity or reckless disregard for the truth) is relevant only to the question of obtaining compensatory and, particularly, punitive damages.

    By way of contrast, in the US, a public figure must show actual malice in order to win the case.

  2. All incidents of "publishing" are actionable.
    Under UK law, libel is also viral, in the sense that material is deemed to published at the point at which it is read, which is called ‘multiple publication’, and all instances of publication containing allegedly libellous material are actionable. This is why, and how, it is possible to sue in the British courts over material published on a website that is physically in the US, because it is the act of downloading a web page, and the location in which is downloaded, which UK law treats as the act of publication for the purposes of establishing jurisdiction…

    In the US, the ’single publication’ rule is used, under which - in blogging terms - material is published only once, at the time its uploaded to the blog by pushing the ‘publish’ button, and it is only that act of publication that is actionable.

    Were this implemented in UK law, then I could be sued over content posted here only in the jurisdiction in which articles on the blog are initially published, which would be California, and I would have all the benefits of mounting a defence under the much more favourable US libel laws.

  3. Lastly, IIRC, there is no Legal Aid available for the defendent to draw on. Thus, whether or not a blogger should win the libel case, they will almost certainly be left with crippling lawyers' fees (unless the plaintiff is ordered to pay full costs—a rare occurance).

Getting the whole system of British libel law changed is going to be somewhat tricky—although it is likely that we could rely on the backing of Private Eye, at least! Unity has some ideas though...
Its in all our interests, as bloggers, to see the UK’s libel laws brought into line with those of the US, but do we affect such a change?

Well, in part, the campaign for fair treatment for Iraqi employees working for British forces shows us one way forward. We can write to and lobby our MPs for changes to both the position under which web hosts operate and for changes in the libel laws to put in place the single publication rule and raise the bar in cases involving public figures to the actual malice standard that applies in the US.

When I’ve got a little more time, I’ll draw up the necessary form letters and related information in addition to keeping an eye on the next ballot for Private Member’s Bill which will provide an opportunity to lobby directly for the exemption for web hosts.

Other than that, there is very little that we can do. Or is there...?
There is something else we can do, however. Something a little more direct and, dare I say it, disruptive - although it is entirely legal, and this something rests on a little known common law principle called 'Jury Nullification'.

As some may know well, there is a basic division of 'labour' in jury trials in which the judge deals with points of law and its correct interpretation, giving directions to the jury accordingly, while the jury is left to concern itself only with ruling on the facts.

However, it also within the scope of a jury to disregard any directions it receives from a judge and return a ‘not guilty’ verdict in a criminal trial, or find for the defendant in a civil case, on the basis that it considered the law under which the case the brought to be, in colloquial terms, an ass. The last occasion on which this happened in a UK court was in the trial of Clive Ponting where, despite being directed that it had to convict as the Official Secrets Act did not permit a public interest defence, the jury chose to accept Ponting’s defence and found him not guilty.

Given a scenario in which a blogger find themselves called up for jury service and assigned to a libel case, especially a high profile case involving a sleb, and the possibilities for a little well intentioned mischief are endless.

Slim though the chances are of hitting the jackpot and having a blogger sitting on the jury of a libel trial, there is still a chance of that happening, and because of our anonymity there is little or no prospect of the powers that be, or libel lawyers for that matter, being able to predict if and when that might happen or whether any of the twelve good men (and women) being sworn in on a particular case might be a blogger who’s primary intention is to give a bravura performance worthy of the film '12 Angry Men' and persuade their fellow jurors to indulge in a little bit of juror activism.

It’s a bit of simple psychological warfare - we make a collective commitment that should any of us find ourselves in the situation of sitting as a juror on a libel case, we make every effort to secure a judgement for defendant no matter what. Well, almost - if someone does end up on a case of Joe Public vs The Sun or the Daily Mail and its an obvious hatchet job, then by all means do the right thing and rack up the damages as much as humanly possible. We’re not in this to give comfort to the MSM, but rather to secure a fair system for dealing with libel that more adequately respects the importance of free speech. Between that commitment and the anonymity of many of us - and remember there are also the lurkers and commenters as well who can get in on this, we have the perfect situation from which to start racking up the FUD, especially amongst the legal lackeys of the rich who cannot know for sure when they enter court whether today's the day that the bullet's in the chamber and there's a blogger sat on the jury waiting to put their case prep down the shitter on a matter of principle.

We turn he business of suing for libel into a game of Russian Roulette and see what shakes loose.

I'll have more thoughts on this in due course, but think about it and spread the word. It’s never to early for a bit of FUD.

As Unity says, this last idea has a slim chance of actually working but wouldn't it be fun...!

The illustration is one that I did many years' ago for a production of Reginald Rose's play, 12 Angry Men; I have actually done publicity for this show on two occasions. This was the poster for the second.


David B. Wildgoose said...

Sounds good to me. Sign me up! :-)

dizzy said...

"Were this implemented in UK law, then I could be sued over content posted here only in the jurisdiction in which articles on the blog are initially published, which would be California, and I would have all the benefits of mounting a defence under the much more favourable US libel laws."

I'm going to be honest, I think that is a little flaky. It's arguable to say that the "act" of publishing is not occuring in the US but is actually occuring in the UK at the first point of the HTTP POST. I'm not saying UNity is wrong, but as someone who's been working in the provider industry for almost a decade, and has spoken with a number of top legal brains on industry matters, this argument is not considered quite so clear cut.

After all, the "publish" button is not on the remote host. It is generated content on the local host. When you hit the button the button is local to the browser and it will send an HTTP post to the remote host. Like I say, I'm not saying Unity is wrong, per se, more that the basis of the argument is questionable.

Anonymous said...

Off topic a bit but a good read if you have the time: 12 Angry Men's reputation is revised here.

Roger Thornhill said...

Excellent film.
Great promo poster.
Important topic.
Superb idea.

Anonymous said...

DK -

Hmm. I'm not entirely convinced about this one. However, I am still trying to work out whether my doubt isn't influenced by the schadenfreude that I have to confess I'm feeling now that Bloggerheads is no more. I don't even pretend to have a settled opion on this one. To be honest, I'm really just thinking aloud here.

The threat of legal action in cases of alleged libel seems to me to be the proper one. Person A makes a statement about Person B and B believes it's libelous. A says, "Oh no it's not." B says, "Oh yes it is." Fine, we have a panto standoff. So A & B can either settle it through violence or they can bring in a third party to arbitrate. That's why the State provides the court system in the first place, for just that sort of arbitration.

As for the ISP, I can't blame them (I know you didn't; I'm just saying). As Ayn Rand pointed out so often, the right to free speech doesn't include the right to a microphone. There's another classical-liberal point at play too, the right to freedom of association. The ISP presumably doesn't have a dog in Tim's fight, and if they wish to stay well clear of it and to disassociate themselves from Tim, well that's their right. They're under no moral obligation to fight Tim's corner. And Tim, for his part, is equally free to take his allegedly libellous material and hawk it around for another ISP willing to associate with him.

The Remittance Man said...

I'd imagine BoJo might be up for pushing a private members bill on this. After all he's just lost his blog through no fault of his own.

Oh yeah? So what has happened for the last ten years, exactly?

Over at the ASI, they are posting some of the winning entries of the Young Writers on Liberty. One does not want to put such keen minds off,...