Libel Reform, 190 years overdue


3:26 pm - May 5th 2011

by Robert Sharp    


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Happy Birthday to The Guardian, 190 years old today.

In its regular archive feature, the paper presents its first ever editorial, which features a demand for libel reform:

Nor is the career of the Editor of a Newspaper attended with moral responsibility alone, it is encompassed with dangers; dangers against which the best and purest intentions furnish a preservative. In the present state of the libel law, his duty to his country and himself will often be at variance.

Circumstances may imperiously call for a prompt and fearless exposure of deliquency in high places. In the ardour of laudable indignation he may pass those “metes and bounds” which the discretion of the Attorney General assigns to the freedom of the press – he is not permitted either to prove the truth of his allegations, or to negative the averments of the charge against him.

In short he is asked to defend himself, where the law (or at least the practice of the Courts) renders defence impossible – he is convicted, and banishment presents itself to his mind as the penalty of a second involuntary or even laudable transgression.

For ourselves, we are enemies to surrility and slander on either side, and though we will not compromise the right of making pointed animadversions on public questions, we hope to deliver them, as that even our political opponents shall admit the propriety of the spirit in which they are written.

Did lettered people really use the word animadversions in everyday discourse? (I promise to do so from now on.) Apart from the flowery nineteenth century language, these are sentiments that could be written today.

In fact, a scrutiny committee is takings evidence in Parliament this week on the government’s draft defamation bill (by everette). I went to yesterday’s session, chaired by Lord Mahwinney, and the arguments put forward by the Libel Reform Campaign yesterday each find an analogous complaint in the Manchester Guardian’s editorial.

In one respect though, the short-sighted and unimaginative leader writers of 1821 failed miserably to predict future concerns, and that is with regards to protections for Internet Service Providers.

Nowhere in that first editorial can I find an analogy for the “privatisation of censorship” that occurs when lawyers send takedown threats to ISPs hosting controversial content.

Measures to protect ISPs from this kind of liability are also absent from the government’s draft bill – a curiously nineteenth century omission.

I hope readers of Liberal Conspiracy will instinctively support the inclusion of such a clause into the defamation bill, ensuring that authors take responsibility for their content, not the distant ISPs that provide the server space.

A good way to signal your support would be to write to your MP. The Libel Reform Campaign would be exceedingly beholden to those in our number that undertake to do so.


A longer version, in which I elaborate the analogies, is cross-posted at my own place.

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About the author
Robert Sharp designed the Liberal Conspiracy site. He is Head of Campaigns at English PEN, a blogger, and a founder of digital design company Fifty Nine Productions. For more of this sort of thing, visit Rob's eponymous blog or follow him on Twitter @robertsharp59. All posts here are written in a personal capacity, obviously.
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Story Filed Under: Blog ,Media ,Our democracy

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Reader comments


Amen to that.

Public response is important on libel reform in general – most MPs reckon that this is something their constituents don’t care about.

Good post.

Although this being the Guardian, I hold that animadversions is most likely a typo…

3. Shatterface

‘In one respect though, the short-sighted and unimaginative leader writers of 1821 failed miserably to predict future concerns, and that is with regards to protections for Internet Service Providers.’

Er, ‘short-sighted and unimaginative’ for not predicting the legal ramifications of the Internet in a leader written only three years after the publication of Frankenstein?

Possibly the most condescending thing I’ve read all year.

4. Richard Gadsden

@Shatterface, I think you need to tune your irony detectors.

I’m using, “surrility” too.

There’s been a lot of backsliding on this from the tories since they were elected. There are some pretty good people in the libel reform campaign but the pressure from vested interests to water down reform must be huge. I hope that LC can keep us posted on events as they happen.

6. Charlieman

OP quoting the Guardian yonks ago: “In short he is asked to defend himself, where the law (or at least the practice of the Courts) renders defence impossible…”

Subsequent to that Guardian editorial, UK publications have presented challenges to UK libel law. Private Eye has raised its head for donkeys’ years. And UK journalists make sure that they get facts right when reporting about UK residents in UK press. That is all part of the job.

A more serious concern is libel tourism (ie presenting a libel case in UK courts for words that are published outside the UK but which may be read by UK citizens).

But I’ll back Robert Sharp on the concept that ISPs are post office deliverers, not publishers. Dave Osler and others are better qualified to comment on how this works in practice.

RT comment 4

Charlieman – I see libel tourism as a phenomenon that arises because of flaws in many areas of the law – defence of truth, public interest, fair comment; costs; the ambiguity of what constitutes damage; and jusrisdictional creep. Libel tourism is the amalgamation of all these things, but they also have a huge impact on the free press in the UK. Yes, private eye and others have been great at challenging the law, but newspapers routinely shy away from libel fights and self-censorship when it comes to powerful people with expensive lawyers is rife. The draft defamation bill does address libel tourism directly, but it is part of a much wider malaise.

I’m not sure that changes to the liability for ISPs would have helped Dave Osler. He was the author of the article that so vexed his vexatious litigant, so would have had to take responsibility for it, even if his hosts/editors/ISPs were absolved of liability. Alex Hilton is the test case on this score.

What would certainly have helped Dave is a fast-track libel process. That would have enabled him to see off the challenge quickly and at much lower cost.

We reported on Dave’s libel victory here on Liberal Conspriacy:
http://liberalconspiracy.org/2010/05/13/dave-osler-wins-libel-case/

9. Charlieman

@Robert Sharp — I doubt that we disagree about much.

My comment “Dave Osler and others are better qualified to comment on how this works in practice.” was a little unclear. Bloggers have faced legal action because of comments to their posts, not the post itself. And it is very unclear whether bloggers should or should not moderate comments.

10. Robin Levett

The article is clearly about criminal libel, not civil libel; and, while it took some considerable time, that was swept away on 12 January last year when section 73 of the Coroners and Justice 2009 came into effect. Oddly, that was therefore an achievement of the Labour Government.

11. Robin Levett

@Charlieman #6:

“A more serious concern is libel tourism (ie presenting a libel case in UK courts for words that are published outside the UK but which may be read by UK citizens).”

That’s a more serious concern? How many cases of true libel tourism (ie not according to your odd definition, but where the libellee has no connection with the jurisdiction) would you say have there are over the course of a typical year? Can you point to any obvious ones?


Reactions: Twitter, blogs
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  7. Federay Holmes

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  9. William Muse

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  10. New Christmas appeal by Libel Reform campaign | Liberal Conspiracy

    […] libel laws of England & Wales are, you will recall, in dire need of reform.  They barely take account of hot-type printing presses, let alone the […]





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