Another UK Libel Discussion

A few days ago Tim at Bloggerheads kicked off what will hopefully be a wider discussion on the Brit blogosphere about the problem of UK libel law. He kicked off with the notorious Laurence Godfrey vs Demon case of 1999, which has resulted in immortality for the name of a physics lecturer. Since then:

…it has been generally accepted that ISPs and other providers of web hosting services can under UK law be sued for libel over material transmitted through a largely automated carrier service.

Things are different in the US; Section 230 protects the providers of carrier services and instead puts the legal onus on the true publishers; those who consciously present, arrange, edit, coordinate or create content for publication (e.g. the submitters of comments, the authors of blogs, the editors of portals, etc.)

The practical upshot of this is that libel threats made against ISPs in the UK usually result in the ISP shutting down websites that are the subject of complaints. The most famous example of this was last year, when the billionaire Alisher Usmanov managed to have several blogs (including Tim’s) taken off-line when one made allegations about his past business practices in Uzbekistan; Usmanov happily admitted that he preferred this route to that of going after the author of the allegations, as this way he avoided the publicity of a court case.

Another case, from 2006, deals more specifically with authorship. As the Times reported at the time:

A prominent member of the UK Independence Party won an unprecedented £10,000 in libel damages today from a woman who waged an abusive campaign against him on an internet bulletin board.

Michael Keith Smith, who contested the Portsmouth North constituency at the last general election, brought High Court proceedings against Tracy Williams, who was a contributor to the same Yahoo! discussion board.

Ms Williams, of Tomlinson Close, Oldham, Lancashire, used a pseudonym to post claims that the 53-year-old chartered surveyor was a “nonce”, a sexual offender, a racist bigot and a Nazi.

Addressing him as “Lardarse” or “Lardbrain”, she also alleged that he had sexually harassed a female co-worker, had been charged with soliciting boys and cottaging and that he was a sexual deviant of the most perverted kind.

…[The judge] said that although the libels were available to the whole world through the internet, it was likely that few people had read them and many of those who did would have dismissed them as “ramblings”.

Nevertheless, he awarded Mr Keith Smith £5,000 general damages plus £5,000 aggravated damages to reflect the way Ms Williams – who had met a request for an apology with contempt – had behaved.

The result was hardly surprising, but it did mark a precedent and received considerable media attention: write libellous comments on a discussion board, and you are liable. Even though the readership may be limited, discussion boards are like publications, rather than like private conservations down the pub. One positive outcome of this case, it seems to me, is that the judge set a reasonable sum for damages, rather than the absurdly large figures that have been seen in the past. However, the report does not make clear if everything presented by Keith-Smith was accepted to be libellous: obviously, calling someone “Lardarse” is rather less serious than labelling someone as a sex offender.

Although Williams chose not to defend herself in court, she has made some statements about the case on a new discussion site which she runs. According to her version of events – which is supported by another group member, Ed Chilvers – the libellous comments appeared in the context of a forum in which various members all hurled abuse each other while discussing politics, and the judge was not fully aware of this. If this is in fact the case, then a ruling from 2007 which I blogged here may be of some significance. This was the case of several directors of a football club, who were seeking a court order to reveal the identities of abusive posters to a football discussion forum. The judge ruled that:

“I do not think it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory or little more than abusive or likely to be understood as jokes,” he wrote. “That, it seems to me, would be disproportionate and unjustifiably intrusive.”

Among the statements regarded by the judge simply as jokes was the claim that the directors had spent club money on prostitutes. This defence of “little more than abusive” can also be seen in relation to US libel law, where insults with criminal overtones such as “traitor”, “phony”, and “chicken-stealing idiot” have been recognised as “incapable of defaming because they are mere hyperbole”. Of course, against this it can be argued that comments which are obviously jokes when seen in context may take on a different complexion when seen by someone else months later, perhaps in isolation on the results page of a Google search. And while this defence might cover “racist bigot” and “Nazi”, sliming someone as a “sex offender” can have such serious consequences that even as a joke it ought not to be accepted (Tim rightly denounces Paul Staines and his various commentators for this tactic).

Although the media has since lost interest in the case, Keith-Smith and Williams have continued their dispute on their respective discussion forums. To avoid possible legal hassles, I’ll decline to link to the sites, but neither one is particularly edifying: Williams’ site has some useful information about Keith-Smith’s political activities and associates, but one has to wade through pages of abuse (both against Keith-Smith and against other posters) to find anything of substance, while Keith-Smith’s is mainly a collection of right-wing screeds against the modernisation of the Conservative Party and on the evils of immigration and such.

Keith-Smith has also since the court case reportedly tried to get Williams’ new website shut down on criminal grounds: Ed Chilvers says that in 2006 he was investigated by the police following a complaint by Keith-Smith of “malicious communication”, and Williams just a few days ago reported that she had recently been arrested but that no charges were brought. Indeed, although the site contains much that is abusive about Keith-Smith, I haven’t seen anything that seems to me to be either threatening or an invasion of privacy, particularly given Keith-Smith’s position as a public political figure (another distinction more developed in US libel law than in the UK). The police decisions in these cases may be of wider significance and interest.

Following her defeat in court, Williams declared bankruptcy, and she maintains that Keith-Smith has not received any money from her. This loop-hole in the law allows bankrupts to pretty much say what they like; the Tory MP Julian Lewis – who was in the receiving end of libellous articles by the late Simon Regan, who published Scallywag magazine while bankrupt – has called for more extensive criminal libel laws to be introduced.

As another bit of incidental background, it should be noted that Keith-Smith is known to be rather litigious, and in one previous case he brought the defendant pleaded provocation. This was reported in 1997:

A Tory has admitted throwing a bucket of water over a former colleague in an election day bust up. Mike Keith-Smith, who campaigned for the UK Independence Party, brought the private prosecution after Conservative councillor Frank Worley threw a large bucket of water through his car window. At the time Mr Keith-Smith was shouting four-letter insults against Tory leader John Major through a hand-held megaphone, Portsmouth magistrates court heard. Mr Worley’s defence lawyer said the councillor had faced “enormous provocation”…Worley, a councillor on Portsmouth City Council, pleaded guilty to the assault. The Chairman of the bench said it was a “foolish incident” and gave Worley a conditional discharge for six months.

9 Responses

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  8. […] decision enraged a close associate of Lauder-Frost named Michael Keith Smith (since deceased), who characteristically threatened to sue Helmer for “breach of contract and negligence” and for […]

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