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Mumsnet campaign for a change to the libel law(84 Posts)
As you probably know we've been banging on for a while about updating the outmoded libel law so that sites like Mumsnet are afforded a bit more protection from potentially terminal legal action. Now we've settled our dispute with Gina Ford, we thought it a good idea to fully explain our position here . We've also written to the Department for Constitutional affairs today who are currently consulting on defamation. Do let us know if you have any thoughts/suggestions of anything else we should be doing.
"I agree with your view that Mumsnet intervenes too rarely. It's one thing to allow free speech, another to allow (and therefore promote?) bullying and aggression. I've been using forum chat rooms for over 10 years and I've never come across the level of abuse as seen on MN. I see this as, in part, due to the culture that has been allowed to develop and persist. ie if other forums don't have this problem, but the same level of passion about views, why does it exist and persist on MN?"
This is a very interesting point of view which I find quite shocking. I also find it a bit unlikely, because if MN was the place where you would find the worst bullying on the web, why would it be so hugely popular? I've rarely seen anything on MN that I would describe as bullying - and if I have, people have been 'told off' by other users pretty sharpish. I would be interested to know what sort of thing you mean (notwithstanding any threads re. the McCann family which has generated massive hysteria across ALL talkboards - although other sites are deleting McCann threads as they appear, and a lot of Mumsnetters would rather this was being done here).
I have been using talkboards for 14 years and I think that lots of certain types of discussions end up in big fights (cf Godwin's law) and always have - I cut my teeth in the early 90's on Usenet arguing the toss over the finer points of theology... (not realising at the time of course than 15 years later I would occasionally come across my old posts and cringe with embarassment) - I think that the internet/usenet has a method of communication and debate resolution all of its own and until you are used to it, it might seem pretty rough and crude to start with, but it's a great way to learn and thrash things out.
What I have never seen though is a discussion forum with the massive throughput of Mumsnet - I'm sure there must be some! - I'd be grateful for other examples where, for example, you could end up with up to 1,000 posts in 24 hours on one thread.
Far be it from me to argue with a trained lawyer, but I do have one question.
Mr Jaffa cites Section 1 of the Defamation Act 1996, stating that Mumsnet was a publisher and thus could not claim the libel defence.
I've pasted the text of the Act below:
1. - (1) In defamation proceedings a person has a defence if he shows that-
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
(2) For this purpose "author", "editor" and "publisher" have the following meanings, which are further explained in subsection (3)-
"author" means the originator of the statement, but does not include a person who did not intend that his statement be published at all;
"editor" means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and
"publisher" means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.
(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved-
(a) in printing, producing, distributing or selling printed material containing the statement;
(b) in processing, making copies of, distributing, exhibiting or selling a film or sound recording (as defined in Part I of the Copyright, Designs and Patents Act 1988) containing the statement;
(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;
(d) as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the maker of the statement;
(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.
Section 3d covers the comparison I previously made of the BBC with a live transmission. Surely section 3e applies to Mumsnet and other forum owners? What control do they have over posters, with the exception of deleting posts when made aware (as was done in this case)? Thus the law appears to suggest that Mumsnet would NOT be held to be the publisher and thus WOULD have the defense previously mentioned.
(this is littlelapin, by the way)
"Won a libel victory" - now that's an interesting take from the Times given that MN made a "contribution" to costs and paid no damages isn't it? Wonder if the Times will now feel able to re-publish Heather Brooke's article ...
Re your post, Wed 23-May-07 09:21:37.
The addendum to a post idea is great. As you say it would prevent deliberate abuse fo the system.
Anybody seen this article in the Times ?
- Websites like Mumsnet are not above the law
Can I add an addendum - "possibly because" not "but"
With regard to post-post editing, you could very easily post something inflammatory, designed to provoke scores of "get lost" responses (I am being polite ) and then amend your OP so it seems like, for example, you said "I need help with my child" and loads of people were abusive to you.
I would prefer a system whereby you can add an addendum to your post; it quite often happens that someone starts a thread and the OP is misconstrued; the explanation comes several posts up, everyone misses it and a pointless argument ensues.
Secondly, I would strongly refute that there is any culture of bullying or aggression on Mumsnet. It seems to be something that people like to throw at us, possibly but this isn't a "fluffy bunnies pink ticker" type site. It IS down to earth, you WILL get an honest response. If you come on here expecting validation and not debate, you will be disappointed. But this is NOT bullying!
In practise, when abuse and/or bullying behaviour DOES occur, there is a strong response by other posters against that behaviour. I would contend that this is better than heavy handed policing from on high.
Disapointing that the site didn't want to take on the hassle. I assume you've looked for other sites or even the option of your own blog to publish the information you have?
I like the idea of linking the time for take down from notification to the turnover (which I assume to be post turnover and not financial?).
I agree with your view that Mumsnet intervenes too rarely. It's one thing to allow free speech, another to allow (and therefore promote?) bullying and aggression. I've been using forum chat rooms for over 10 years and I've never come across the level of abuse as seen on MN. I see this as, in part, due to the culture that has been allowed to develop and persist. ie if other forums don't have this problem, but the same level of passion about views, why does it exist and persist on MN?
I look forward to further discussion, in particular responses from Justine and anybody else to the ideas and issues raised.
- given the arguments presented, do Justine + others still hold to the pub conversation / total conversation defence?
- would MN and it's memebers like the idea of adopting one of the suggested payment structures to prove the identity of a poster?
- how does everybody feel about the "expeditious" suggestions?
- would MN benefit from a system where users can amend their own posts?
I offered to supply information to the website publisher, they weren't interested -too much hassle for them. So my right of free speech was infringed by a large corporation with all the power of its advertising budget......
I like littlelapin's idea too, I think it could work if it was a payment at the time. However I could still pay it and declare my credit card stolen/ that it wasn't me, your honour so you might also want some further confirmation of "ownership".
Another possibility is to restrict the amount of damages that can be claimed where a so called "libel" has been promptly removed by the site owners from an unmoderated board. I agreed that the timing should depend on the website but the law might include a statement that no website could be prosecuted if the comment was removed within, say, four hours of a complaint being received for companies with a specified turnover and one day for those below the cut off. That might mean an improvement in efficiency for a small site. They would still be able to argue if they had done the best they could but then they might risk court.
There are many website where users post personal opinions of companies /products. I find these sites invaluable, even if the comments may be written by employees/ people who are unreasonable. I want to see free speech continue.
OTOH free speech doesn't include the right to be offensive. Mumsnet intervenes too rarely to control rudeness that would not be tolerated in my local pub. There should be an easier way to report offensive posts. It would also provide a good defense in court - of the ..thousand users of our website that day none reported the comment as offensive. If ...thousand users didn't see the comment as offensive it can't have ben widely seen or if it was be that damaging to someone's reputation can it?
Your psot, Tue 22-May-07 09:39:04.
Superb idea. Love it.
Easy, workable .....
It could perhaps also be payment from a verified PayPal account, or any other system that means they verify their ID.
Still trying to look through the morass of sites about US law!
While paying to belong to a forum would undoubtedly have a detrimental effect on a lot of forums, how about this:
A post is made that is considered libellous/contentious/whatever.
The forum owners withdraw the post on notification, and attempt to contact the poster.
If the poster wishes the comment to remain, they pay a small charge via credit card etc allowing the aforementioned verification. This would be a one time charge. (I am thinking something nominal, but also sufficient to cover the costs incurred by the forum providers)
If the poster cannot be contacted, or declines to pay the small charge, the post remains deleted.
the thing about users being responsible if their posts are libelous is that do posters know well enough what is libel and what's ok to write?
even though it's written it does feel like talking on here - rather than writing a piece in a mag, book or newspaper.
Yup, I defenitely did have a bee in my bonnet.
I felt I was banging on and on to get proposals for change as opposed to just repeat, after repeat of just complaints about the current situation.
But, the bee has well and truly flown off as the conversation has started discussing proposals. In no small part due to Justine herself (thanks Justine).
Did you find anything in the US libel laws that you feel could help improve the UK situation ?
Developing the idea of transfering the liability to the poster (ie away from the Web site owners etc.)
Fundamental is being able to prove the identity of the poster.
Microsoft + AOL have tried to solve this problem with their .Net Passport and the Liberty Allience respectively. But neither have worked because their motives aren't trusted.
This would only work on a large WWW scale if there was a de-cetranlised system.
The only solutions I'm aware of that could deal with this are:
1.1 Something like the Augmented Social Network (ASN) who influenced Owen Davies to set up i-names (http://www.inames.net/
)on the OASISS standards. A system where users create a one time secure profile, that could have proven / verified personal details (same way as you verify your PayPal account).
1.2 The Canadian SCIP (skip)(http://www.sxip.com
) system are also working with iNames. The objective being to create a trusted potential killer app, that if linked to forum profile would solve this problem.
2. Require users to pay to belong to a forum so that if required by the law they could be traced by their credit card details.
3. Require users to pay a small amount once, by credit card, to create an identity that they can then use on multiple sites. Again if required, they could be traced by their credit card details. A system along these lines is used by many adult sites to verify that their site visitors are adults and not minors (http://www.adultcheck.com
I don't think that any of these ideas are flawless, but the could be a good start point.
Compare their potential to a site that allows somebody to create a fake ID and then start posting libelous or otherwise illegal material. Given that there are such alternatives, if a Web site allows anonymous posting then, in my opinion, they need to take some of the responsability.
Golly fakeID, you do have a bee in your bonnet...
"Unlike Justine of Mumsnet fame, who so far can only complain that the situation (IMHO) makes life difficult for her as a journalist and Web site owner." (from Guardian piece comments)
Am I going cross-eyed, or did Justine not state below that she isn't a journalist?
I hope this is not offensive - please report me if so, I am sure MNHQ will remove the post speedily - but you do appear to be pursuing a personal agenda in this matter.
In terms of "expeditious" (I am growing heartily sick of that word), presumably having a "best practise" law would lead to more court cases arguing about the definition of best practise; surely we are trying to reduce litigation.
Anyway, off to research US libel laws (and play with my son).
Interesting article on this topic in yesterday's Guardian
Thankyou for your detailed reply. MOST of all thankyou for continuing to reply to my often hard comments. Like you, I feel that improving this area of the law would be a great step forward.
I'm also pleased that others have joined the debate, which will hopefully go into some detail that allows progress on suggesting potential alternative solutions.
In relation to "expeditious" do you feel there should be a specified time frame or an established principle similar to the legal "best endevours" concept ? (the latter seems more logical to me).
Sorry, but I think "we are prepared to listen, though, rather than simply tell others what the solution should be" is a cop out. Can you not make suggestions as to possible solutions ? That wouldn't be telling others what to do, but constructive debate towards a potential solution as opposed to just complaining. But heck, that's just my repeated opinion.
In terms of forums being convesations, a lot of sites have the facility for posters to go in and amend their own posts. (I often use this to correct my terrible spelling and typing !). Mumsnet doesn't have this option, which would allow an "off the cuff joke remark" to be retracted by the poster.
But this creates the situation that you can post lies / hurtful comments so long as others balance it out.
- But what then happens if yours is the only post !!!!
You have yet to reply on this point.
That is why I feel the law is currently correct in that each post must be able to stand up on it's own. It should have the defence of truth / fact.
I've replied to Littlelapin re the transfer of liability idea, which I like! But want to work out the detail of. But heck, there has to be the point at which it is passed to a lawyer. I just thought it'd be good to get as much of the scenario thought through.
Sorry for being wrong and thinking you were a historically a "full-time journalist" and that you consider that potentially offensive. It was an assumption based on the number of media articles I've seen that appeared (to me) to be by you, and also comments such as those on the Musmnet About U
About Us page where it says ""Mumsnet was set up in January 2000 by Justine Roberts, a football journalist ....".
I was just making the point that a lot of the "campaign for change" is by those who could benefit from a change that might not benefit individuals wishing to protect their reputations.
Again, thankyou for your on going replies.
Did you present the evidence to the web publisher?
- that way they would have the defence of truth if the company asked for the post to be removed.
Because for the company as well as the Web site, the legal process is expensive. If they saw that the would be "outed" as a bully when there was also clear factual evidence regarding the post against them, they would at the very least think twice before proceeding.
The company may well have bigger pockets than the Website in question, but if there is clear evidence that the post is true, there are lots of lawyers / barristers about who would work on a "no win no fee" basis.
BUT this is a big amount of hassle (for both sides). So I'd understand the websites perspective even though I agree this is impacting your freedem of speech.
For me, it comes down to how far you want to take it, in order to defend your freedem of speech.
Don't give up !
In response to your post on Mon 21-May-07 19:44:59
My understanding from having spoken with Internet lawyers re forum posts from a Webmaster / Website owner perspective is that these people do have an unwritten "innocent discemination" concept up until the point they are made aware of any potentially illegal content.
- this protects them from your example attack.
It would, I agree, be good for this to be written into UK law.
The lawyers advise me that provided a webmaster / website owner follows "best practice" they would have little chance of loosing a case. They should have a clear and easy system for anybody to report abuse and they should take action ASAP.
- I'm not sure making this a specific time frame would actually help webmasters / website owners. For example a small site with very little traffic Vs a big site with thousands of posts and site visitors a day creates a very different situation. So long as the webmaster / website owners can show they did all that was possible to deal with complaint.
My experience of forums suggests the following has always worked VERY well:
1. Remove the offensive post ASAP
2. Contact the poster to let them know why and remind them of the site policy to remove illegal ...... posts
3. Remind the forum community of the same.
I'm not sure leaving the post live, but with a disclaimer would be a good idea, as it would still leave what could be a lie, live to the world.
In terms of the poster taking responsiblity I'm not sure how a Website would veryify the identity of the poster etc. to make this all legally binding. One of the reasons the current situation works in terms of pressure to keep illegal postings / lies etc. off a site is that the Web site owner / webmaster / hosting company are usually easy to identify.
There is also the issue of aggrivation and website owner contributions (PLEASE I'm not saying in any of this, that Mumsnet have ever done this, I'm just making theoretical point). What happens if the posts are by the owners of a website? What happens if the website owners encourage or create a culture of attacking an individual or organisation. This potential means that Web site owners should do everything possible to make sure such a culture never develops.
Also, if somebody (for exaple) made a libelous comment about Justine on Mumsnet, would she have to sue Mumsnet? The alternative would be that she takes the comment down, which could be an attack on freedom of speech !!
Back to the 2 main points, do you have any thoughts on what "expeditious" would be. (I feel it should remain a "best endevours" type scenario, as this is an already established part of UK law).
How would the transfer of ownership of a potentially libelous post to the poster actually come about?
should I declare I am not a journalist? I have had a remark removed by a web publisher on the grounds that it could be considered libellous. This was a comment about a company who I had taken to a regulatory body, the regulator had ruled they were at fault and the company had accepted it! That is a denial of freedom of speech.
it is not always a simple matter to change UK law. Private members bills are not generally well drafted unless they get government support and a poorly drafted bill helps no-one. I don't personally know what act would need to be passed or existing act amended but these things can always be done. It takes time.
The comments about seeing a remark in context - well that is part of assessing the potential damage to someone's reputation. If a case ever came to court the jury would be encouraged to look at the remark in context as well as how much publicity that remark had actually received. ( see Charleston and Another -v- News Group Newspapers Ltd and Another  2 AC 65
31 Mar 1995
Lord Nicholls Defamation Casemap
A plaintiff in defamation proceedings may not arbitrarily split off different parts of a publication without good reason.") Whether the comments appear elsewhere is up to the "publisher " of the other site and not the liability of the site where they first appear.
Part of the jury's assessment would be whether a remark by one person (say an individual unnamed mother on a parenting site) would actually seriously damage the reputation of the person claiming defamation. We should reinstate the eroded right of juries to decide damages. They have, in my view, often more sense than judges.
On the question of how expeditious is expeditious, as pointed out in this article - whilst there is no guidance on defamation law, The Terrorism Act does include guidance on removal of internet postings with regard to the encouragement of acts of terrorism and the dissemination of terrorist publications. One would imagine that most regard incitement to terrorism as at least, if not more serious an offence than defamation. So we would suggest that two business days - bearing in mind that many web operations are under-resourced - would seem like a reasonable time period. But we are prepared to be persuaded that a slightly longer or shorter time period might be appropriate. We are of the view that this needs clarifying, as are many, many other people. We are calling for the law to be updated - we are prepared to listen, though, rather than simply tell others what the solution should be.
With regard to viewing conversations in the round, as we've said, we think it would be sensible to ask judge and jury to view internet conversations as exactly what they are - conversations - so an off the cuff joke remark that is obviously and rapidly refuted and revealed to be exactly that, should not be regarded as defamatory. In other words juries should be directed to take into account the whole discussions and not just individual postings on threads. If not, litigious persons could be encouraged to instiute proceedings on the basis of a single post, when, in fact, the damage to their reputation is neglible. Such a change in the law, would, in effect, be an acknowlegdement that the internet is a different medium to print - a conversation rather than just the written word - and therefore requires judges and juries to treat it as such - clearly though, a libel that severely damaged someone's reputation would still be a libel.
On the third point, our position, as I've outlined a few times now (and Littlelapin has too) is that contentious posts could be withdrawn until the site had a chance to contact the poster directly and confirm that they were happy to take on the liability. You ask what's stopping us taking this course of action now and the simple answer is that the law is, sadly. (Though I'm glad you seem to acknowledge that it's a workable solution - progress at last ). As you know well, complainants have the right to sue who they like and under the current law, as we understand it, if a libel appears on Mumsnet - whether or not someone else takes full responsibility for that libel - we can be sued. Saying that someone else was prepared to stand by the comments, is (absurdly we agree) no defence, if the complainant chooses to sue us (and not the third party) and a libel has been committed.
On point four and the issue with regard to transfering the burden of proof to the complainant, though we do see where the those who advocate this change are coming from on this, we agree there are some good arguments against adopting this change and we are not, nor have ever actually advocated it. We raised this issue merely because you implied that our view on libel was somehow out on a limb somehow, whereas in fact many would wish for a more radical reform of the libel law than the one we are suggesting.
On your point 5, "you appear to complain that the libel law affects everyone" the point we are making is fairly obvious - because it's so easy to be a publisher these days (as opposed to the pre-web world) - blogs, bulletin boards etc - many people are at the mercy of an unclear libel law, as opposed to just a tiny minority of traditional media owners.
And finally, on your sixth point - you are wrong, I've never been a full-time journalist and I am not a part-time journalist now - MN is more than enough for me. I was once a football and cricket writer but I was very much part-time - weekends and the odd week night only. (Thinking about it, I may well have to sue you for such an insinuation). My dh is a indeed a journalist but, like many women these days, I do try to think for myself as much as I can manage and not just borrow his (no doubt as you say, "biased") opinions.
Anyway that's me and my personal biases sorted out - what about you?
Hopefully, you can acknowlege at last that we are making some proposals and not just complaining. Of course, whether you agree with them is entirely another matter. Needless to say you're more than welcome to voice your dissent here on Mumsnet.
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