Article: libel out of control

Libel and freedom of information are intimately entwined. We cannot have true freedom of information if publishing such information is at the risk of being prosecuted. Such numerous and costly prosecutions have produced a chilling effect in this country where the knee-jerk reaction to controversial speech is censorship.

I should also mention that unlike the United States, the UK does not have an equivalent to the First Amendment that protects freedom of expression. Instead, we have numerous laws that prohibit various kinds of speech: blasphemy, incitement of religious and racial hatred, “promotion” of terrorism, etc. In addition, the American libel law puts the burden of proof squarely on the claimant while providing a public interest defence for the writer. This is not the case in England as I state below.

England, home of the mother of all injustices*
The Times, May 14, 2007
By Heather Brooke

The libel laws are an abomination. They favour rich, litigious bullies at the expense of free expression. Even a website for mothers to chatter on is fair game to this draconian law.

Last week mumsnet.com was forced to pay a five-figure sum for comments posted on its chat site. It stood by the comments but this law is such an ass that the burden of proof rests solely with the defendant.

Meanwhile, claimants can make their allegations free from evidential proof. Their opinion is all that counts. They do not have to prove the comments are false. They don’t even have to show any harm to their reputation. I can think of no other area in law in which an individual’s spurious opinion outweighs the greater public good of truth and justice.

The Mumsnet case makes clear how libel affects everyone, not just journalists or those working in the traditional media. More and more of us, thanks to the growing ubiquity of blogs, chat groups and web forums, are vulnerable to this nefarious law. And while big media groups have deep pockets, the individual hasn’t.

If the damages don’t get the writer, then legal costs certainly will. Most writers are not rich people and so they must settle. Result: vibrant debate is quashed, truth inevitably suffers. The law is so heavily weighted against freedom of expression that all writers (even those hosting blogs) are being urged to buy libel insurance; the freelance chapter of the National Union of Journalists is inundated with inquiries about its new policy.

No matter that the publishers of Mumsnet didn’t even write the comments that the author Gina Ford claimed defamed her. Under the Defamation Act 1996 nonauthors can be held liable if they fail to expeditiously remove comments someone thinks are defamatory. But how quick is quick? The Mumsnet founder Justine Roberts said that the comments were taken down after little more than 24 hours. Yet the vagueness of the law means she would have to go to court to prove this was a reasonable time period.

As a result we now have a culture where the default position is not free speech but censorship. After the 2001 case Godfrey v. Demon Internet Ltd, all internet service providers became vulnerable to libel lawsuits if they failed to immediately censor comments that a person claimed were defamatory. Whether or not the words are true is irrelevant.

England’s libel laws have never been about protecting individuals – at least not poor or helpless individuals. They are about protecting the rich and the powerful.

A fair law would be one in which the claimant has to prove falsity, harm and malicious intention, while providing a defence for truth, reasonable care and the public interest. Then both reputations and freedom of expression could be protected. Until then, mum’s the word.

* Note the live link no longer works as the Times has removed this article after a threat by Gina Ford. For archival purposes the previous location of this article was: http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article1784952.ece

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