SOCIALIST UNITY

Two events yesterday illustrate what a mess Britain’s libel laws are.

On the one hand, Madeliane McCann’s father gave evidence to MPs on the Culture, Media and Sport Committee about the media hurricane that surrounded him and his wife following the disappearance of his daughter. He said: “Our family have been the focus of some of the most sensationalist, untruthful, irresponsible and damaging reporting in the history of the press.”

The tabloids published prurient and sensationalist front page stories, putting the family through the ordeal of trial by media. The “quality” papers responded by printing their own smug pieces reacting to the tabloid campaign, allowing them to both join the circus, and pretend critical detachment.

When the major news organisations with their deep pockets and tame lawyers persecute and lie about an ordinary member of the public, there is nothing effective to stop them.

But the other side of the coin is that the libel laws can be used easily and effectively to close down critical voices, and deter dissent. The huge and punitive libel damages that are available through the UK courts can deter news organisations, and now bloggers, from publishing stories even that they know to be true, and where they have checked the facts, just to avoid the risk of litigation.

The law is iteslf unclear, which has been described by Lord Lester in the court of appeal as giving “uncertainty and chilling effect”. Yesterday’s ruling in the European Court of Human Rights on Loutchansky v. Times Newspapers is therefore a serious blow to internet publishing.

In certain circumstances the law allows a defence of “qualified privilege” where there is a moral, social or public duty to disclose well-founded suspicions, although this defence will be interpreted more narrowly in the case of open publication to the world at large than in private communication between individuals.

The great uncertainty is that the qualified privilege is only applicable at original publication. So a social duty to publish a suspicion of a potential terrorist attack would not exist later when the threat had been averted. Internet publishing however bears repeated reading perhaps years later, or perhaps in a geographically remote area where the social and moral duty was less compelling.

The British Court of appeal had ruled in Loutchansky v. Times Newspapers that, for the purposes of the law of libel, an Internet publication should be considered to be ‘published’ afresh every time a reader views it. As Peter Noorlander explains on the Free Speech blog:

This rule, which was first formulated in 1849 (in a case in which the Duke of Brunswick had sued for libel in regard of a 17-year-old newspaper article), is of big significance to anyone who publishes online: it means that an online publisher can be sued for pieces that are several years old, when the reporter who wrote the story has potentially long left and for which there are no longer any notes. Such a challenge would be impossible to defend, and the Times’s application to Strasbourg invited the court to rule not just on the facts but on the general principle that arose from it. It had pointed to the US, where the New York Court of Appeals as long ago as 1949 had observed that the Brunswick rule had been formulated ‘in an era which long antedated the modern process of mass publication’, and in 2002 had confirmed that defamation proceedings may be commenced in regard of online publication only within a period of one year of being uploaded.

Sadly, the European Court of Human Rights ruled very narrowly only on the facts of the Times Newspapers’ case before them , and rather perversely considered that keeping records over an indefinite number of years would not be onerous. The court also disregarded the guidelines of the UK’s own Press Complaints Commission (PCC) and ruled that the Times should have included a notice on the article saying that it was being challenged in court, while the PCC says this is unnecessary until final judgement is reached.

So the court ruled that individuals can sue for libel in the UK even years after an article was published, despite this being out of step with other common law jurisdictions like the USA, and despite their own conclusion that “libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom… “