Blog Libel Cases in the London High Court

From Dave Osler:

LONGSTANDING readers may remember that I am facing libel action from Tower Hamlets Tory activist Johanna Kaschke – as featured in the YouTube clip above – following a post about her on this blog in 2007. She is also suing two other Labour Party members, Alex Hilton and John Gray, over related issues.

Alex, of course, is prospective parliamentary candidate for Chelsea & Fulham, surely an easy peasy Labour gain in the current political climate. Bankruptcy, which will result for all three of us if Ms Kaschkde prevails, will disqualify him from becoming an MP.

I spent all day yesterday in the High Court, listening to Alex’s appeal that an application for summary judgement be upheld, and I’m just about to head off for a second helping. His case is being argued on a point of law, rather than the underlying merits of the matter. The ruling will probably come about lunch time.

Meanwhile, I’m on for a four-day jury trial, which will cost the taxpayers tens of thousands of pounds, and is set to commence on November 23. ‘Overtly Tory’ blogger Iain Dale has agreed in principle to appear as an expert witness on my behalf, which should underline that this is more than simply a party political spat.

…Interestingly, the jury will also be asked to rule on whether or not it is libellous to call somebody ‘one cherry short of a Schwarzwalderkirschtorte’. Not my words, but those of a reader, left in the comments box. If I lose on that point, the consequences for internet freedom of speech are clearly considerable.

In the USA, that last point would be dismissed as meaningless abuse, and in 2007 the High Court in London ruled in another case that some defamatory comments in should not be taken seriously if they are “little more than abusive or likely to be understood as jokes”.

However, and more seriously, if the court considers that Osler and the other defendants are liable for a comment left by someone else, then everyone who blogs in the UK will have to consider moderating comments, or turning off the comments feature altogether. It’s one thing if a blogger refuses to remove a truly libellous comment – and if a court order is made to reveal the IP or other details of a commentator then of course the blogger must either comply or face the consequences – but at the moment we’re in an alarming situation. It doesn’t matter if the comment is removed quickly, or if nobody much saw the comment. And what if the comment appears on a defunct blog that the owner (or the owner’s next of kin, if he or she has died) no longer monitors? I had a nasty scare over a comment a few years ago, so I now remove comments that are probably OK but not worth a battle over.

I previously blogged on Kaschke here and here.

(Hat tip: Harry’s Place)

7 Responses

  1. I do not think that the blogger should be sued if a comment is left underneath a piece. Whoever left the comment should be sued. That is – if the blogger was not aware of the comment’s libellous nature. However, UK libel law does not (like US libel law) take into consideration the intent of the accused.

    After the Lozells race riots, I had awful racist and insulting comments placed underneath a post I wrote on a blog I then contributed to. Contributors were tearing into each other, some using sock-puppet false names to log in. I banned the users’ IPs – something I frequently did to trolls. But I left the comments online as they demonstrated the level of hate and stupidity abounding at that time.

    David Toube objected to Douglas Murray threatening to sue Sunny Hundal on a matter of “principle”, but even though Taube is a lawyer, he seems to think blogs should be immune from libel prosecution by some sort of “gentleman’s agreement”.

    I have seen recently how blogs have stopped having gentlemanly rules – there are no Marquis of Queensberry limits on what can be said. Many bloggers try to nowadays to bring themselves up by tearing someone else down. It gives them a certain cachet – they adopt the air of the avuncular conversationalist, imparting meaningful news on their political opponents. When really they are dishing dirt to bring down others, and pretending they are not acting maliciously.

    No way. Anything that is published is subject to libel. If comments made on a blog from three years ago can be dredged up as “ammunition” by people with an obvious political agenda, then it is in everyone’s best interests that people observe the laws of the land.

    There are huge faults with the UK libel laws – most notably allowing Polanski to sue an American newspaper in a British court, while the plaintiff remained in Paris using a video-link, because Polanski knew that he could be extradited to the USA to face justice for his crimes against a 13-year old girl if he stepped foot in Britain. Polanski would never have dared sue Vanity Fair in the US.

    This is the awful practice known as “libel tourism” – it is easy to convict in Britain, so even though only a few copies of a magazine arrive in the UK, the High Court is used to pursue vendettas.

    And the late Khalid bin Mahfouz (a Saudi banker) severely abused Britain’s libel laws to silence repetition of things legally said in Congress in the US – Jean-Charles Brissard, Cambridge University Press and Rachel Ehrenfeld were victims of Mahfouz’ ability to launch libel cases due to his massive wealth. At least 30 such cases were successfully made by Mahfouz.

    Sadly for us in Britain, Mr Justice Eady has rewritten all of the standard defences used in libel law to render them meaningless.

    And the libel laws themselves assume the guilt of the accused – it is the duty of the defendant to prove there was no libel, not the duty of the plaintiff.

    But for bloggers to think they are immune from the laws that govern the print media and the publishing and broadcasting industries is ridiculous.

    As blogs can be read anywhere in the world, they should be even more subject to controls over their ability to defame people than book publishers, who generally can control where their products are sold.

    It is a shame that there is not an independent quasi-judicial body that can vet applications to defamation cases, and throw out the “vexatious” or spurious ones.

    But libel is important. No-one has a de facto right to defame another person, particularly if one does not know that person. Blogsite owners, and so-called “academics” who run websites seem to act as if they are immune from legislation that is designed to prevent malicious representation and character attack.

    I hope that – if he case is valid defamation – this litigant succeeds. Then, hopefully, all blogs will be forced to maintain the standards that we expect of more mainstream media.

    Blogs can still question whether or not a person has acted properly, they can allege things by using reported speech honestly, quoting attributions, or merely admitting that they are reporting mere rumours that are “allegedly” true.

    Bloggers want to be taken seriously.

    Therefore they should be treated as seriously under law as any other media or publishing outlet. And if you defame someone (in Britain, David Eady has shown that “malice” does not even have to be intended for a case to win) then you should face the consequences.

    How on earth do people like David Toube (someone for whom I usually have respect as a blogger) suggest that bloggers should not get sued?

    If bloggers present stories featuring real human beings as their subject matter, they should be just as subject to the libel laws as anyone else.

    The libel laws need to be changed. While they stand, however, no-one should be immune from their reach.

  2. Has anyone questioned the validity of the disclaimer to contributors comments declaration that most bloggers tend to display?

    • Until there is an actual test case in law, there is no knowledge of whether or not this could be construed as a valid defence or not. The Dafamation Act 1996 was brought in to make it easier for “ordinary people” to sue under Britain’s Victorian libel legislation, even though the top award would be £10,000. Jean-Charles Brissard told me that he had been sued under the 1996 Act by Mahfouz, but had to pay a total of £1 million in accumulated court costs etc.

      Mr Justice Eady has put the whole situation of libel law out of the bounds of known territory. As far as I know, the law has not yet been applied to blogs.

      A disclaimer would – under US law – probably be sufficient to render the blog owner immune. But as a registered owner of a site, the site owner could be seen as having a duty to ensure that anything that is published, even by commenters while a disclaimer is made, is still his or her legal responsibility.

      Another pernicious aspect of libel law is that the defendant cannot claim legal aid while undergoing the massive court costs of being prosecuted.

  3. Interesting. Someone like “Phony Tony” Blair can tell hundreds of lies to get England to help the USA invade Iraq in an illegal and immoral war and his punishment is a cushy retirement and a possible post as EU prez with a very healthy salary.

    And rake in 12 million pounds for speaking engagements and other fluff appearances.

    But let someone call another a nasty sounding name and all hell breaks loose and you’d better get ready for court, a fine and possible jail time.

    We’ve got similar problems in the States and one just has to wonder who or what group is so afraid of truth coming out that they pass laws forbidding free speech?

  4. http://www.opsi.gov.uk/Acts/acts1996/ukpga_19960031_en_1

    Generally, for someone to make a successful defamation of character claim, they must show that there was a FALSE statement of fact. In the case of a public figure, actual malice must also be proved.

    In short, best way to avoid a suit is stick to the truth.

  5. I raised this with a former colleague who is a Prof of IT law, last week. She has written on the case and possible defences here: http://blogscript.blogspot.com/2009/10/new-uk-internet-libel-case-coming.html

    Best wishes

    Scott

  6. […] on May 14, 2010 by Richard Bartholomew Like everyone else, I’m very pleased to read that the libel case against blogger Dave Osler brought byJohann Kaschke has been thrown out as an abuse of process […]

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