Bartholomew's Notes

Revised and Amended

Index on Censorship reports:

The New Statesman has removed a post from the blog of political editor Martin Bright after a threat of legal action from Iraqi billionaire Nadhmi Auchi.

The controversial businessman raised objections to links in the article to material hosted by Internet whistleblower site Wikileaks, as well as to statements made by Bright in his blog post.

However:

Wikileaks editor Julian Assange has now claimed that the New Statesman, in agreeing to Auchi’s terms, would defame him and Wikileaks by implying that the site’s content was inaccurate.

On first reading, I took this to mean that Wikileaks was arguing that deleting the links amounted to libel, which would be silly because “agreeing to Auchi’s terms” simply implies that there is a potential risk under the UK’s notorious libel laws. However, a commentator below points out that what is actually meant is that Auchi is demanding an apology and an admission that the material on Wikileaks is inaccurate, and that such an apology would be libellous to Wikileaks. Assange continues:

Our organisation’s reputation for professional, accurate investigative journalism is our primary asset.

The intention is to help the New Statesman, but it’s still unlikely to succeed: Bright linked to old material re-posted on Wikileaks from elsewhere, and so its own reputation for “investigative journalism” is neither here nor there. It seems to me that only the actual authors of the articles could claim to have been allegedly defamed by an apology to Auchi.

We all know that UK libel law unfairly favours plaintiffs, and thus that those with large amounts of money or who are friends with certain lawyers can suppress even true and politically relevant information. In the UK, linking to (alleged) libel might be seen as “republishing” the libel, although this hasn’t been tested in court yet. Back in February the pseudo-libertarian blogger Paul Staines threatened to sue Liberal Conspiracy for linking to a posting about him on Tim Ireland’s Bloggerheads, but this turned out to be bluster.

Canadian law, however, has some precedents:

In Lindley v. Delman 25 P. 2d 751 (1933) the showing of a libelous letter and issuance of a request to others to visit a place where the libelous statements could be viewed was held to constitute a publication under the definition of defamation. In Lawrence v. Newberry (1891), 64 L.T. 797 a letter to a newspaper referring to a speech containing defamatory content which was published elsewhere attracted liability to the defendant. Similarly, in Hird v. Wood (1894), 38 S.J. 234 (CA) the defendant was merely sitting beside a placard containing defamatory remarks and drew the attention of others to it which resulted in a finding of liability.

It seems to me, though, that to apply this kind of thing to the internet is Canute-like. If Auchi can go after Bright for linking to the articles on Wikileaks and giving their titles, why not go after Index on Censorship for referencing Wikileaks in general and telling us that the material about Auchi can be found there? Or go after anyone who mentions the Index posting, since the same applies, at one remove? Or anyone who mentions a site that mentions the Index posting, etc., ad absurdum? Also, the Auchi articles on Wikileaks are easily found via Google, so the idea that a direct link from Bright would make any practical difference from a vague allusion that anyone could chase up for themselves is a fiction. Doubtless Auchi’s lawyers (notorious libel specialists Carter-Ruck) would answer it would be best if anyone who writes anything whatsoever about a libel threat becomes liable…

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