Law of Libel in the internet age

After a stay at the world’s weirdest hotel I found myself stalking the streets of Whitehall last week as I tried to locate a room filled with lawyers, barristers, journalists and campaigners, all gathered to debate the Draft Reform for the Law of Libel and Defamation.

I took to my seat and eagerly awaited the opening remarks from our Chairman for the day, the Rt Hon the Lord Fowler, and as the first speaker took to the stage I realised I was in the presence of some very forward-thinking and smart people. 

First up, Professor Gavin Phillipson, Professor of Law at Durham University, who is a smart and impassioned expert in his field, and his keynote ran through the basics of the current Draft Bill. He reminded everyone present that the main problem with law is that “Law is made up of words, and words are open to interpretation”.  He couldn’t have summarised the issues publishers and lawyers face with the Law of Libel any clearer.  And it was his words which resonated for me even after the day had finished because I see this every day in what I do as community manager.  A great number of the complaints I receive from members are because they perceive they have been personally attacked, or they perceive that they have been offended by what other members write.  It is their interpretation of what has been said which matters to them, and becomes one of the hardest things I have to manage.  It comes back to that beautiful nuance of being human: one man’s rubbish is another man’s treasure, and one man’s joke is another man’s insult. 

Anyway, I digress.  The day moved on through various speakers and panel debates, and one thing which became clear to us all was that the Draft does not go far enough to clarify terms like ‘substantial harm’, and it does not do anything to combat the fact that libel is a law for the wealthy: there is no legal aid for libel law suits, and libel law suits run into the thousands, meaning that the common man has no protection from this law if they are publically defamed.  Furthermore, defendants still have a worry about astronomical costs in the event of a loss in court, and this is often enough to silence people and publishers from speaking out about the misdemeanours of people and corporations.  So the costs act as a form of censorship, and the costs restrict access to justice.

Another of our speakers, Lord McNally, said there needed to be more open consultation on matters relating to this law and the internet and insisted this was not a “cop out” response.  He admitted they had faced the same dilemma while thrashing out the Communications Bill.  The dilemma is still ‘how to legislate for the internet’, and there are massive benefits of freedom for the internet, and this freedom should not be reined in or curtailed at the behest of any law. However, finding a balance between freedom of speech and the right for a person to protect their reputation remains difficult when it comes to what is published on the internet, particularly for secondary publishers such as us at Sift Media. 

Libel in the internet age should strengthen and support the position of publishers, but it should also strengthen and protect free expression.  The terms ‘freedom of speech’ and ‘freedom of expression’ are often bandied around on the internet, often with little consideration of the core of these principles and just how precious they are.  The law has to protect people – the common man – against attacks, and the law has to protect secondary publishers in the event a case of libel is brought against them.  And for us as secondary publishers presently there is no real safe harbour; this is of grave concern and in my opinion the current Draft does not go far enough to create a safe harbour for us. 

In every takedown request I get from a person or company I have to act as judge and jury and at present I could be sued even though it is a dispute between two individuals.  I cling on to what is known as ‘innocent dissemination’ with my life, but at Sift our interpretation of this is that we only hold this position until such a time as we intervene of our own accord or that a complaint is made.  Once I make any edits or have to contact any members about the content of their posts, we then kick over into the Pre-Action Protocol for Defamation.  Whoever has made the potentially defamatory comment must be willing and able to evidence their claims and be prepared to do so in a court of law.  If they are not, the comments are removed, and in most cases this is what happens because first of all people want to protect their identity and furthermore, as was highlighted by my time in Whitehall, the common man cannot afford to be involved in a libel case.  I often think this a shame when I get that gut feeling that the original poster has posted about a legitimate experience they had with a particular company in order to warn others, and even though it appears a fair and accurate portrayal of their experience they are thwarted by the threat of libel. 

There was not enough time in the day to hear from all the people in the room, and it was a shame: it’s quite one thing to hear from the minsters instrumental in drafting and consulting on this Bill, but here was a room of roughly 200 legal and media practitioners whose daily lives are affected by whatever happens to this legislation.

I was intoxicated and energised by what had been discussed and I felt as though I was part of something important: democracy in action.  Lord McNally reminded us that there is “ample opportunity for all interest groups to contribute to the Draft” and that we are now getting into the phase which will eventually lead to legislation.  McNally claimed to be a firm believer in pre-legislative scrutiny and that it is a “very healthy way of law making”.  He said that this process is normally given 12 weeks, but by special request borne from necessity of the complexity of these issues, an extension has been granted until October this year.  McNally hopes that the new Draft will make an appearance in the Queen’s Speech and that it will eventually enter the statute sometime in 2012.  Until then, grab your democratic right with both hands and exercise it: if this legislation will affect the way you work and you have something to say about the Draft Bill then say it here: http://www.parliament.uk/business/committees/committees-a-z/joint-select/draft-defamation-bill1/news/call-for-evidence/

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Becky Midgley - Community Manager Sift Media Friday 20 May 2011

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