HUMAN LAW MEDIATION

Could Geeklawyer be sued for defamation?

Geeklawyer one of the most well known law bloggers within United Kingdom has an interesting post which raises the prospect of whether he could be facing legal action in the future over a comment which was made on his blog.

A potential difficulty which he has is that it is not clear cut to him whether the request to remove the comment is genuine.

In any event, Geeklawyer does not appear to be disturbed and it looks as though he will not be removing the comment causing the problems.

He writes "Geeklawyer, nonetheless, regards this as jolly good fun. He has never been sued before and appearing on his own behalf should be entertaining. Nor has he done any defamation in a long long while. It’ll be interesting to see litigation from a punters perspective."

Law Society Gazette article on defamation

A significant article appears in this week's Law Society Gazette related to defamation.

As the Gazette writes "Serious and responsible investigative journalism has been freed from the shackles of a defence intended to free it from the shackles of UK defamation law.

The liberalising defence of public interest, colloquially known as the Reynolds privilege defence after Reynolds v Times Newspapers Ltd (see [1999] Gazette, 17 November, 38) has been given a new lease of life.

Reynolds qualified privilege protects defamatory publications on a matter of public interest published responsibly. However, while intended to give greater protection to free speech, it has been construed strictly, leading to criticism that in effect it was nothing more than a series of high hurdles over which the media must clamber towards the distant defence of privilege.

The decision by the House of Lords in Jameel has effectively torn down those hurdles, so that the route to success is no longer an obstacle course, but a potential venue in which the media may showcase the extent of its responsible journalism. According to one of the Law Lords hearing the case, Baroness Hale, ‘we need more such serious journalism in this country and our defamation law should encourage rather than discourage it’."

Librarian, Batgirl points the way on libel

The fantastically named trainee librarian blog, "Batgirl was a Librarian" has picked up on the significant law judgment relating to law libel which was featured in the Times yesterday. I have not yet read the judgment but this does look important. 

Do you allow comment moderation or not?

Matt O'Neill has done a post on his blog asking the legal position on external comments on one's blog.

He refers to an e-mail/telephone discussion which we had as well as a discussion with Michael Dillon of Sun Microsystems.

It is worth a look because it shows the tough call that this issue is. My own reason for having comment moderation(and this is raised by Michael Dillon) is not primarily legal but more that I do not want any unnecessary bad-mouthing of my site.  I think it is a branding issue rather than a legal issue.

That said as we all know defamation laws are much stricter in the UK than the United States and as the recent instance of baby guru, Gina Ford and Mumsnet shows this is a real issue.  Also a very good article has been written by John Naughton.

Recommended article - The Guardian on libel laws

One of the central legal issues of our times relates to the increasing importance of UK libel laws. An article which tries to deal with this issue appeared in last week's Guardian. Useful material.

Is it inevitable UK defamation laws will be turned on Holla Back?

The leading libel lawyer Mark Stephens' piece for Gazette illustrates the dangers for bloggers within the UK.

As he points out, it appears that the site Holla Back which has been used as way to fight back against street harassers has just come to the UK.

The difficulty for sites likes these is that they  may  not appreciate the difference between US & UK libel/defamation laws.

As Stephens observes "In the US with its guarantees of free speech under the Bill of Rights and various state constitutions, it is almost impossible to bring suit successfully unless there is something deliberately or recklessly false in what was posted....In the UK, the tables are somewhat turned by our peculiarly claimant-friendly libel laws. These are libel laws that already bring into our courts into disrepute by attracting crooks, brigands and libel tourists -let's hope this will not include perverts too."

A brief guide to defamation/libel law

One of the fears of bloggers and libel is defamation and frankly the fear of this arising. The issue is being considered in this post in Legal Blog Watch.

Furthermore, Glenn Harlan Reynolds of University of Tennessee College of Law has written a useful and scholarly article entitled Libel in the Blogosphere, Some Preliminary Thoughts.

Of course, this article takes a US perspective on the issue of libel but within England & Wales, what are the key issues facing bloggers? 

1 Unlike the US`which has constitutional protection afforded by the First Amendment, England & Wales, has much stricter rules. Just consider the fact that London is known as the "libel capital of the world."

2 A potential risk for bloggers is that we have a press which is not unknown for making untrue statements - How many times have we seen a tabloid use the words "world exclusive?" which is clearly patently false? This does not exactly set the greatest example for publishers. In my view, many bloggers have been conditioned by the media to bend the truth.      

3 The nature of blogging encourages people to express an opinion. Indeed, recently I read that one PR Company with expertise within blogging advising would be publishers "...taunt your reader with your opinion...." All well and good but in so doing you do need to respect to libel and/or defamation laws otherwise you may face a lawsuit.       

With respect to the legal position, English & Welsh law has evolved in case law with regard to reporting on matters of public concern or public interest. It is possible that an article could attract the protection of the defence of qualified privilege. A useful starting point for considering the law is Reynolds v The Times Newspapers Ltd.

Points to consider:

• The seriousness of the allegation – the more serious the charge, the more weighty the reporter’s responsibility to be correct.

• The nature of the information , and the extent of which the subject matter is a public concern. The more important the story is to the public’s welfare, the more leeway for error will be granted. 

• The source of the information – The credibility of the source and the reporters/webmasters efforts to check that credibility will be considered.

• The status of the information – The allegations may already have been subject to an investigation which commands respect.

• The steps taken to verify the information – Fact finding, research, interviews, and investigation all combine to convince a judge that qualified privilege should apply 

• The urgency of the matter – Courts are not so likely to be influenced by urgency arising from press/blog pressure to publish but rather by the public’s need for information. 

• Whether comment was sought from the claimant -  An approach to the claimant may not be necessary but is in my view desirable. The leading libel lawyer Mark Stephens has observed “As a practical tip, because much litigation now centres on this area, it is often useful to have proof of contact and the matter put to the target, as well as showing that the target had a reasonable opportunity to inform himself, respond meaningfully, and that the response should be fairly included in the article.”      

• Whether the article contained the gist of the claimant’s side of the story- Stories that edit a denial of wrongdoing may be found libellous.

• The tone of the article – A newspaper can raise questions or call for an investigation. It need not adopt allegations as statements of fact. 

• The circumstances of the publication including the timing.