Libel Case against Blogger Dismissed as Abuse of Process after Three Years

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 – but angry that he should have had to have gone through such an ordeal just to defend his right to free speech. Had Osler lost his case, he might well have been bankrupted and he would probably have lost his home – as it was, he’s had years of strain and wasted time, plus a good deal of expense. As his wife writes on her own blog:

This meant that weekends and annual leave were used up, as he was holding down a full time job. This meant that for the last two years we did not have a holiday together as he did not have the time or spare cash. It meant that he could not spend as much time with either me or his children, impacting on them and their mother with whom he shares childcare.

How much easier it would have been to have blinked: to self-censor, scape together £10,000 or so (maybe much more), and allow yourself to be degraded with a gutting public admission to being a liar when you are no such thing. Osler was only able to make a stand at great personal cost, and without eventually getting pro bono support the nightmare would probably still be continuing.

A press release has further details:

This significant case clarifies the position in respect of bloggers and the online media in relation to the liability they face in respect of old postings still available in their archives…

The Osler case arose out of a blog post written by Ms. Kaschke in which Ms. Kaschke stated that she had been wrongly arrested in Germany in the 1970s. Mr. Osler linked to, and summarised her blog post, which caused Ms. Kaschke to sue him for libel. However, Ms. Kaschke did not issue the claim form until over a year after Mr. Osler’s blog was posted on the web. Mr. Osler applied to the court to strike out the claim on two grounds, namely that the claim was an abuse of process and that there was no evidence of any publication after the expiry of the 1-year limitation period.

In the light of this decision, it is clear that real evidence of publication of such material is required, and that it will not lightly be inferred by the courts.

…Mr. Justice Eady held that there was very little difference between what the claimant had put into the public domain and what Mr. Osler had published on his blog. In the circumstances, damages could only ever be very minor and a trial was simply not worth the time and expense that would be incurred…

The full judgement can be read here. I’m not clear on a few points: I’m glad that there is less liability for old blog posts that have been “archived” – there has always been a worry that someone could keep a libel threat in reserve, to be activated if and when strategically useful (I wrote more on this here). However, Eady’s distinction between the front page of a blog and the archive seems to me unconvincing – old posts are just like any other webpage; they can be accessed directly from Google with the right search terms, and in some cases might be more easily found than a front page. A front page posting may also have link-backs. However, Eady’s judgement covers several bases, so this is not a crucial point in this particular instance. I look forward to reading Jack of Kent’s (Allen Green) analysis at the weekend.

There is hope that Kaschke will now be declared to be a lexatious litigant, and so barred from bringing further actions of this sort – she lives off benefits, and so money is not a problem for her (there is not much hope that Osler will recover his own costs). But is it really quite over? On Kaschke’s own blog, she says that she still has a few weeks to seek permission for an appeal (permission was not granted by Eady), and she’s already made a new libel threat against Jack of Kent. Her case against Alex Hilton and John Gray is also still ongoing.

Kaschke’s blog cannot be quoted directly, as she asserts her right to sue anyone who uses her words in ways she finds objectionable. However, she claims that she is the victim in all this, and that, as a German immigrant, she has suffered racism and sexism. She also believes that it is unfair that Osler managed to get pro bono advice when she did not. She further tells us that she wore a Great Ormond Street Hospital t-shirt to High Court, and she asks for other people to do the same at her next hearing, on 25 May. Make of that what you will, but don’t speculate publicly or you might get sued. I blogged on some of her previous complaints here.

The need for libel reform is urgent. We read about these high-profile cases where an innocent person is put through hell (most recently, the case of Simon Singh); but there are also cases where individuals are forced to settle just to avoid an unacceptable risk – not to mention the many instances of pre-emptive self-censorship we will never know about. Libel reform would also give the process more credibility for those who have a just complaint.

The power of the wealthy, of those with special informal access to lawyers, of those with nothing to lose because they have no assets, and of cranks to cause this sort of misery must be curbed.

(Hat tip: Harry’s Place. And apologies to Dave Osler for mis-spelling him as “Dave Ostler” in older posts, I have now fixed this.)

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