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Mumsnet campaign for a change to the libel law

11 replies

JustineMumsnet · 09/05/2007 23:19

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.
Thanks,
M Towers

JustineMumsnet · 10/05/2007 08:35

bump for those not up at midnight last night!

JustineMumsnet · 10/05/2007 08:54

Well there's this thing called Parliament and in it there's this other thing called government and they sometimes make some things called laws...Think that's how it works anyway - I did politics at Uni.

JustineMumsnet · 10/05/2007 09:34

Good thinking Batman - Thanks we will.

JustineMumsnet · 10/05/2007 18:18

Hello,
Have blogged on libel law and freedom of speech issue here fyi.

JustineMumsnet · 14/05/2007 17:43

Today's Times had a good piece about this issue fyi.

JustineMumsnet · 14/05/2007 19:49

Hi FakeIDpoint,
Good to see you on MN and thanks for your post.

First we take issue with your point:
"The UK law follows the EU Constitution (so VERY unlikely to be changed)"
The law commission, the body which advises the government on legislation warned that a rethink of defamation law was needed to protect freedom of speech online back in 2002. They are consulting on that very issue right now with a view to updating the law. So we are pretty hopeful that it can be changed.

Secondly you say that having posters be liable for what they post rather than the sites on which they post is unworkable, but it is exactly how it works in the US. Should we have a similar situation here? Maybe.

Or maybe a better alternative would be some kind of period in which to state your adherence to a post and take over legal liability.

For example, someone posts that a government minister is an addict. MN receives a complaint from said Minister's expensive legal team and, of course, because we have no idea whether it's true and more than likely would not wish to go to court to prove it anyway, we pull the post. But what if it is true? We've removed the poster's freedom to say so and then to defend herself. So how about some sort of system in which a website is able to contact the poster, and if they receive an undertaking that they wish to defend their post, then at that point the liablity is transferred to the poster? (ie that's the point and not before at which you do the information gathering on a poster)

If this were the case, Gina would have had a chance to defend her reputation against the person who actually challenged it. Doesn't that make sense?

We also think the conversational nature of bulletin board communication should be taken into account in assessing whether a complainant has been defamed. For instance, if a single poster makes a defamatory comment e.g Govn minister is a drunk but a 100 people swiftly post that they've know him for 20 years they've never seen him have more than a glass or two of an evening, should it be considered defamatory? Or should there be a requirement to consider bulletin board conversations in the whole? We would suggest that there should. In the Gina, lawyers more than once demanded we remove whole threads when by far the bulk of the posts refuted the odd negative comment.

As you know we've written to the Department for Constitutional affairs who are consulting on this issue right now. They have verbally told us that they plan to consult widely on this issue and we very much hope the issue will be roundly debated because the balancing of reputation versus freedom of speech is a difficult act.

We very much hope to be part of the process of coming up with a solution that is measured and workable - and not just "crying" about it as you put it.

Thanks for your thoughts.
M Towers

JustineMumsnet · 17/05/2007 09:41

Sorry for the delayed response ? things been a bit hectic.

FakeIDpoint, you are essentially making the same point again - i.e. we're not making any suggestions - so I'll keep repeating our suggestions (as outlined in our original statement) in the hope that they?ll get through:
We think three things need looking at. First we need clear guidance on the practice of notice and takedown ? how expeditious is expeditious. Secondly we think the context of potentially defamatory comments to be taken into account in the eyes of the law. So if a single poster makes a defamatory comment but is immediately rebutted by a large number of users we think that it should not be considered defamatory.

Finally we would like overall consideration of whether in fact bulletin boards should be held responsible for comments posted by others ? comments that they don?t necessarily adopt or approve? In the US they are not ? they are protected by an innocent dissemination defense.

But given that individuals have a right to protect their reputations and that many posters on bulleting boards are anonymous, a good alternative would be to allow a transfer of liability to the originator of post in question, were that person to identify himself and declare their willingness to justify publication. (Incidentally I didn?t say the posts would remain up during that transfer time ? normal rules of notice and take down would naturally apply).

In this case the complainant would have someone to hold accountable and the originator would not be denied his rights to freedom of speech. Doesn't this just make common sense?

Many people - particularly in the legal profession would wish for even further reform. They believe the English libel laws are unfairly weighted towards the plaintiff and argue for a transfer of the burden of proof towards the claimant. They share Heather Brooke?s view expressed in the Times last Monday. I'm not quite sure why that link isn?t working any more ? so here?s the text of her argument:

England, home of the mother of all injustices
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.

This blog from Oliver Kamm is fairly reflective of many blogger's views on this issue.

JustineMumsnet · 21/05/2007 22:37

Hi Fakeidpoint,

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.

Best,

MNHQ

JustineMumsnet · 22/05/2007 08:43

Interesting article on this topic in yesterday's Guardian

JustineMumsnet · 23/05/2007 13:02

Ah ha - our old friend!

JustineMumsnet · 23/05/2007 13:08

"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 ...

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