Censorship by Libel

Laws that led to London being dubbed the libel capital of the world will be reformed after peers in the Lords voted to pass the defamation bill, ending a three-year campaign led by Liberal Democrat peers Lord McNally and Lord Lester.

Libel reform campaigners said they were delighted overall that defamation reform was finally passing into law, although they were disappointed by the failure of a bid to bar private companies contracted to run schools, prisons or healthcare from suing ordinary citizens who criticised the work they do for the taxpayer. In the end it was the Lib Dems and Tories that did the dirty and killed some of the valuable reforms.

However, the bill is a landmark piece of legislation and should provide more protection for individuals and organisations, including newspapers and broadcasters, which criticise big companies.

The new law will also stop cases being taken in London against journalists, academics or individuals who live outside the country, denting the libel tourism industry, but not ending it altogether, as foreigners will still be able to lodge claims in the high court.

The bill will now return to the Commons on Wednesday for formal approval with no possibility of fresh amendments.

Kirsty Hughes, chief executive of Index on Censorship said she was delighted that corporations will now have to prove financial loss before they sue for libel but added it was a pity the government voted against Labour's amendment to stop public money being used to stop citizen critics .

Comment: Victory for free speech as libel bill passes

25th April 2013. See  article from  indexoncensorship.org

Today, 24 April, saw history made. The UK parliament has passed a new Defamation Bill, which will now go on to Royal Assent. A major victory against censorship in Britain and beyond has been won, with England's notorious libel laws changed in favour of free speech.

The new law protects free speech. There is a hurdle to stop vexatious cases. We now have a bar on libel tourism so non-EU claimants will now need to prove that harm has been done here. For the first time there will be a statutory public interest defence that will ask defendants to prove they have acted reasonably (a better test than the more burdensome Reynold's test of responsible publication). There is also a hurdle to stop corporations from suing unless they can prove financial harm.

...Read the full article

My Government intends to bring forward measures to maintain the ability of the law enforcement and intelligence agencies to access vital communications data under strict safeguards to protect the public, subject to scrutiny of draft clauses.

So there we have it -- the Communication Capabilities Development Programme will have it's day in Parliament. We don't know what the draft clauses will be or when we will see them, but the Government remains intent on pursuing legislation in the coming session of Parliament.

The Home Office have been very good at saying what the problem is, but seem intent on keeping the technical details of what they are proposing secret. Is it any wonder that the public are scared by a proposal for online surveillance not seen in any other Western democracy.

Update: Promises Promises

From openrightsgroup.org

The Snoopers' Charter : the Communications Data Bill is about to be published by the government.

When the coalition was elected, they promised that:

We will end the storage of internet and email records without good reason (1)

Nick Clegg added:

We won't hold your internet and email records when there is just no reason to do so. (2)

Now, the government is saying that companies like Facebook and Google must keep your email and messaging records for 12 months, whether or not you are under suspicion: and that the records (not the content) must be handed over on the say-so of a police officer.

The government are asking for powers to intercept and collect information about who you talk to online by snooping on your Internet traffic, in case companies based outside the UK don't agree to hand over your information.

That makes us all a suspect. Instead of being under surveillance when there is evidence of wrongdoing, you will be under suspicion by default.

As announced in the Queen's Speech, the Government will introduce a law to protect freedom of speech and reform the law of defamation .

The libel reform campaign, nearly 100 organisations and 60,000 supporters including leading names from science, the arts and public life have been calling for legislation to reform the libel laws since December 2009. Congratulations to all on this momentous stage.

Now we need to see the details of the Bill and will work to ensure the reforms will do away with unwarranted chilling, bullying effects of the current laws.

Over the coming months, the Libel Reform Campaign will continue to fight for:

• a public interest defence so people can defend themselves unless the claimant can show they have been malicious or reckless.
• a strong test of harm that strikes out claims unless the claimant can demonstrate serious and substantial harm and they have a real prospect of vindication.
• a restriction on corporations' ability to use the libel laws to silence criticism.
• provisions for online hosts and intermediaries, who are not authors nor traditional publishers.

...Read comments from supporters

Update: Details of Defamation Bill

20th May 2012. See  article from  publicaffairs.linx.net

The Bill contains a number of measures of interest to ISPs, including a single publication rule and new defences for hosting providers and operators of websites with user-generated content.

The single publication rule

Currently, a claim for defamation can be brought up to one year after publication. This limitation is measured from the last time the allegedly defamatory article was published. However, viewing an article online essentially involves the host transmitting a copy of that article over the Internet, which counts in legal terms as republishing the article. This means that there is, in effect, no time limit for making a defamation claim against the publisher of an online article, since the law considers the article to be republished every time it is viewed.

The Defamation Bill solves this problem by introducing a single publication rule. If the Bill becomes law, the limitation period will be measured from the first time an article is published, rather than the last, as long as the manner of a subsequent publication is not materially different from the manner of the first publication . This should go some way towards placing online content on an equal footing with offline content.

New defences for website operators

Under current defamation law, website operators and hosting providers risk being found liable for defamation if they refuse to take down content that a court later finds to be defamatory. A blogger could, for example, be held liable for failing to remove a defamatory comment posted by one of her readers, while the ISP that hosts the blog could in turn be liable for failing to remove defamatory statements posted by the blogger.

The new Defamation Bill provides a weak looking defence in cases where the defamatory contents was posted by someone other than the website operator or host:

5 Operators of websites

It is a defence for the operator to show that it was not the operator who posted the statement on the website. The defence is defeated if the claimant shows that---

• it was not possible for the claimant to identify the person who posted the statement, the claimant gave the operator a notice of complaint in relation to the statement, and the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.

This seems hardly worth having as websites are generally are not in a position to meaningfully identify posters, and so the defence simply will not apply in the vast majority of cases.

Reforms to England's libel laws will not do enough to protect free speech. A powerful parliamentary committee believes further steps are needed to prevent big corporations using their financial muscle to gag opponents by threatening legal action.

It also wants extra measures to protect scientists and academics who are publishing legitimate research, and to prevent trivial claims ever reaching court.

The committee has been scrutinising the Coalition's proposals to end the international embarrassment that sees rich and powerful foreigners flocking to our courts to silence critics.

The report from the joint committee on the draft Defamation Bill says many of the Government's proposals, particularly a move to end trial by jury except in the most serious cases, are worthwhile . But it says the plans are modest and do not address the key problem in defamation law, the unacceptably high costs associated with defending cases.

Recommendation that websites be held responsible for anonymous comments

See  article from  bbc.co.uk

Websites should have protection from defamation cases if they act quickly to remove anonymous postings which prompt a complaint, a report says. A joint parliamentary committee tasked with examining libel reform says it wants a cultural shift so that posts under pseudonyms are not considered true, reliable or trustworthy , But it says websites which identify authors and publish complaints alongside comments should get legal protection.

The committee proposes a new notice and takedown procedure for defamatory online comments - aimed at providing a quick remedy for those who are defamed and to give websites which use the procedure more legal protection.

It recommends that where complaints are made about comments from identified authors - the website should promptly publish a notice of the complaint alongside it. The complainant can then apply to a court for a takedown order - which if granted, should result in the comment being removed, if the website is to avoid the risk of a defamation claim.

But where potentially defamatory comments are anonymous, the website should immediately remove them on receipt of a complaint, unless the author agrees to identify themselves, the report says. The author of the comment can then be sued for defamation but if a website refuses to take down an anonymous remark it should be treated as its publisher and face the risk of libel proceedings .

The report also says a website could apply to a court for a leave-up order, if it (is rich enough and) considers the anonymous comment to be on a matter of significant public interest.

But Mumsnet, a parenting website, says many of its members rely on the ability to ask questions or post comments anonymously. Many of the women posting messages do so under a user name , rather than their real name - and the site is worried the proposal will mean more people demanding messages be taken down.

Its co-founder, Justine Roberts, said while it was right to stop people from assassinating the character of others from behind the cloak of anonymity the report did not recognise how useful anonymous postings were in allowing people to speak honestly about difficult real-life situations . The recommendations could have a chilling effect on sites like Mumsnet where many thousands of people use anonymity to confidentially seek and give advice about sensitive real-life situations.

Under the current law, websites are liable for defamatory statements made by their users. If they fail to take down a post when they receive a complaint, they risk being treated as the primary publisher of the statement.

So how is a website to know if users correctly identify themselves anyway?

Ken Clarke's Justice Department is considering sending rich and famous claimants to the Press Complaints Commission for arbitration before they are allowed to take their case to court.

Ministers say the system would be cheaper and quicker, and hope it could deter foreigners from flocking to our courts in so-called libel tourism .

At a meeting of a Parliamentary Committee investigating changes to defamation laws, Justice Minister Lord McNally told MPs that he was tempted to make complainants go to the PCC first: I do think that a credible Press Complaints Commission -- one that had general respect and could deliver non-legal fast justice in areas where people complained of press abuse -- is preferable to the law. If complainants want a rapid correction then mediation does offer a cheap and speedy way of addressing that.

Clarke said that the PCC would have to beef itself up to be able to take on the role, and would have to do more to ensure it had the confidence of the public.

This appeal required the Supreme Court to consider the defence of fair comment in defamation proceedings, in particular the extent to which the factual background giving rise to the comment had to be referred to with the comment itself and be accurately stated.

The respondents are members of a musical group known as The Gillettes or Saturday Night at the Movies.

The appellants provide entertainment booking services.

The Gillettes appointed the booking agency to promote their acts, entering into a contract which included a re-engagement clause, under which any further bookings at the same venue in the following 12 months had to be made through the appellants.

The booking agency arranged a booking for the Gillettes at Bibis restaurant in Leeds. The Gillettes agreed to perform again at Bibis three weeks later without reference to the agency.

The agency emailed the band to complain of the breach of the re-engagement clause. A band member replied, contending that the contract was mearly (sic) a formality and holds no water in legal terms and that the other Gillettes were not bound by the re-engagement clause as they had not signed the contract.

The booking agency thereafter posted a notice on their website announcing that they were no longer representing the Gillettes as they were not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract and that following a breach of contract Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of "contracts hold no water in legal terms". For this reason it may follow that the artists obligations for your booking may also not be met….'

The Gillettes issued proceedings for libel, alleging that the posting meant that they were unprofessional and unlikely to honour any bookings made for them to perform.

The booking agency relied principally on the defences of justification and fair comment. Both were struck out in the High Court. The Court of Appeal reinstated the defence of justification but upheld the striking out of fair comment.

Judgement

The Supreme Court unanimously allows the appeal and holds that the defence of fair comment should be open to the agency.

A 'fair comment' must indicate in general terms the facts on which the comment is based, so that the reader was in a position to judge for himself how far the comment was well founded

However this defence had originated in respect of comments about work products such as books and plays, which necessarily identified the product. It had been complicated by developments which extended the defence to cover the conduct of individuals, where this was of public interest.

Today many people take advantage of the internet to make public comments and the defence would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment.

The Supreme Court agreed that there was a case for reform of a number of aspects of the defence of fair comment which did not arise directly in this case.

The whole area merited consideration by the Law Commission or an expert committee. The only more general reform being made by this judgment was the re-naming of the defence from fair comment to honest comment .

Applying the law to the facts of this case, the posting by the booking agency referred to the breach of contract relating to the Bibis restaurant, and to the Gillettes' email, and these facts could be relied on. The email arguably evidenced a contemptuous approach to the Gillettes' contractual obligations to the agency. The email as quoted arguably evidenced a contemptuous attitude to contracts in general.

It would be a matter for the jury to decide whether the inaccuracy in the quotation made a significant difference.

The defence should therefore be reinstated.

At the High Court in London, Lady Justice Smith granted Indian national [who's never visited Britain] 'His Holiness [self proclaimed]' Sant Baba Jeet Singh ji Maharaj the right to appeal in his libel case against British journalist Hardeep Singh. The case will now go before three judges at the Court of Appeal to decide whether it should proceed to a full trial.

Hardeep Singh said: I've been fighting this case for three years already; this adds a minimum of another six months of torment. If I lose, it will cost me over £1 million, let alone my costs so far and a tenth of my life. This feels like the biggest game of poker you can possibly play: all for exercising my right to free expression.

He added: I'm hoping the government take reform of our libel laws seriously and we get a robust bill in the New Year.

Mike Harris from Index on Censorship said: When individuals like Hardeep Singh risk £1m and bankruptcy all for a single newspaper article, it really hits home how important libel reform is. I hope the government backs the Libel Reform campaign's call for wholesale reform of our libel laws so free speech is protected.

Síle Lane from Sense About Science said: Change in the libel laws cannot come soon enough. Singh's case highlights that the laws as they stand are unfair, unduly costly, out of date and against the public interest. Until we have a clear, strong public interest defence against libel actions writers, bloggers, NGOs and journalists will be forced to back down in the face of threats.

The case centres on an article that Hardeep Singh wrote in August 2007 for the Sikh Times, a British newspaper, in which he claimed that Jeet Singh was an accused Cult leader whose teachings were not in line with mainstream Sikh doctrine.

In May 2010 Mr Justice Eady threw the case out with no right to appeal. Eady's judgment held that secular courts should not make a judgment on a religious dispute.

The application for appeal was granted on the limited basis that there are arguable issues in Singh's article that do not tread on the forbidden area of doctrinal dispute.

All 3 major political parties in the UK are committed to libel law reform.

Dominic Grieve, the Shadow Justice Minister, told us on Friday that the Conservative party is committed, if elected, to undertaking a fundamental review of the libel laws with a view to enacting legislation to reform them. This reform could best be done by means of a separate Libel Bill and this is the preferred approach for us.

The Lib Dems made libel law reform a policy in September 2009 after Professor Richard Dawkins addressed their party conference and Jack Straw committed Labour to reforming English libel law at our mass-lobby of Parliament on 23rd March.

The Labour manifesto, released today, pledges To encourage freedom of speech and access to information, we will bring forward new legislation on libel to protect the right of defendants to speak freely.

Tougher powers for the Press Complaints Commission and an end to the right of companies to sue for libel will be proposed next week in a long awaited report by MPs. But the much criticised press watchdog will escape calls for its abolition or for any form of state regulation of the press.

The PCC needs a radical shake-up to turn it into a body that is proactive, rigorous and is taken seriously by the public, the Culture, Media and Sport Select Committee will say. New powers could extend to halting the printing of a newspaper edition. John Whittingdale, the committee's chairman, says the watchdog should also have the ability to impose large fines.

The commission has come under fire this week for failing to uphold complaints about a Daily Mail article into the death last October of the Boyzone singer Stephen Gately. The column attracted 25,000 complaints from readers who perceived it to be homophobic. But the PCC said it should be slow to prevent columnists from expressing their views, however controversial they might be . It was a point of principle that newspapers could print views that might offend people, it said.

The complaint made to the PCC that the Daily Mail's column on Gately's death was inaccurate, intrusive and discriminatory was not upheld. Gately died at his holiday home on the island of Majorca. His civil partner Andrew Cowles made a complaint to the PCC about what had been written by the columnist Jan Moir. The PCC said that it could fully understand why Cowles and a record number of complainants were upset, but ruled that Moir's comments had not breached press guidelines.

In a second move that will please media organisations, the committee is expected to reject calls by Max Mosley, the former Formula One chief, for victims of media exposés to be notified in advance. There are fears that a requirement for prior notification will lead to judges imposing injunctions that would prevent many investigative stories going to print.

A third key recommendation expected in the report, to be published next week, is that businesses with more than ten employees will lose the right to sue for defamation.

The wideranging report by MPs will cover press standards, privacy, libel and libel tourism , super-injunctions and costs in defamation cases.

It has been 18 months since I was sued for libel after publishing my article on chiropractic. I am continuing to fight my case and am prepared to defend my article for another 18 months or more if necessary. The ongoing libel case has been distracting, draining and frustrating, but it has always been heartening to receive so much support, particularly from people who realise that English libel laws need to be reformed in order to allow robust discussion of matters of public interest. Over twenty thousand people signed the statement to Keep Libel Laws out of Science, but now we need you to sign up again and add your name to the new statement.

The new statement is necessary because the campaign for libel reform is stepping up a gear and will be working on much broader base. Sense About Science has joined forces with Index on Censorship and English PEN and their goal is to reach 100,000 or more signatories in order to help politicians appreciate the level of public support for libel reform. We have already met several leading figures from all three main parties and they have all showed signs of interest. Now, however, we need a final push in order to persuade them to commit to libel reform.

Finally, I would like to make three points. First, I will stress again - please take the time to reinforce your support for libel reform by signing up at www.libelreform.org. Second, please spread the word by blogging, twittering, Facebooking and emailing in order to encourage friends, family and colleagues to sign up. Third, for those supporters who live overseas, please also add your name to the petition and encourage others to do the same; unfortunately and embarrassingly, English libel laws impact writers in the rest of the world, but now you can help change those laws by showing your support for libel reform. While I fight in my own libel battle, I hope that you will fight the bigger battle of libel reform.

England’s libel laws are unjust, against the public interest and internationally criticised — there is urgent need for reform this is the message performers, writers, poets, patient groups, legal experts, broadcasters, journalists and others represented by the Coalition for Libel Reform (English PEN, Index on Censorship and Sense About Science) are sending to politicians urging them to support a bill for major reforms of the English libel laws now, in the interests of fairness, the public interest and free speech.

At the launch of the National Campaign for Libel Reform on Thursday, performers and others urged the public to sign a petition demanding reform of the libel laws, highlighting that for the first time in over a century we have an opportunity to change our unfair and repressive libel laws.

After a year-long Inquiry, English PEN and Index on Censorship have concluded that English libel law has a negative impact on freedom of expression, both in the UK and around the world. Freedom of expression is a fundamental human right, and should only be limited in special circumstances. Yet English libel law imposes unnecessary and disproportionate restrictions on free speech, sending a chilling effect through the publishing and journalism sectors in the UK. This effect now reaches around the world, because of so-called libel tourism , where foreign cases are heard in London, widely known as a town named sue . The law was designed to serve the rich and powerful, and does not reflect the interests of a modern democratic society.

In this report, we cut through the intimidating complexity of English libel law to show how the legal framework has become increasingly unbalanced. We believe that the law needs to facilitate the free exchange of ideas and information, whilst offering redress to anyone whose reputation is falsely or unfairly damaged. Yet our inquiry has shown that the law as it stands is hindering the free exchange of ideas and information. We repeatedly encountered the same concerns, expressed by lawyers, publishers, journalists, bloggers and NGOs, who have no wish to abolish libel law, but know from experience of its chilling effect on legitimate publication.

In response to their concerns, which are set out below, we offer the following recommendations to restore the balance between free speech and reputation:

1. In libel, the defendant is guilty until proven innocent

We recommend: Require the claimant to demonstrate damage and falsity

2. English libel law is more about making money than saving a reputation

We recommend: Cap damages at £10,000

3. The definition of publication defies common sense

We recommend: Abolish the Duke of Brunswick rule and introduce a single publication rule

4. London has become an international libel tribunal

We recommend: No case should be heard in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here

5. There are few viable alternatives to a full trial

We recommend: Establish a libel tribunal as a low-cost forum for hearings

6. There is no robust public interest defence in libel law

We recommend: Strengthen the public interest defence

7. Comment is not free

We recommend: Expand the definition of fair comment

8. The potential cost of defending a libel action is prohibitive

We recommend: Cap base costs and make success fees and After the Event (ATE) insurance premiums non-recoverable

9. The law does not reflect the arrival of the internet

We recommend: Exempt interactive online services and interactive chat from liability

10. Not everything deserves a reputation

We recommend: Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood

Britain's reputation for libel tourism is driving American and foreign publishers to consider abandoning the sale of newspaper and magazines in Britain and may lead to them blocking access to websites, MPs have been warned.

Publishers, human rights groups and campaigners have expressed substantial and increasing concern because comments that would be protected under the freedom of speech in the US constitution are actionable in London courts once published here, no matter how small the readership.

A memorandum submitted to a Commons select committee, ahead of a meeting with US publishers, states: Leading US newspapers are actively considering abandoning the supply of the 200-odd copies they make available for sale in London – mainly to Americans who want full details of their local news and sport. They do not make profits out of these minimal and casual sales and they can no longer risk losing millions of dollars in a libel action which they would never face under US law. Does the UK really want to be seen as the only country in Europe – indeed in the world – where important US papers cannot be obtained in print form?

The submission is on behalf of a number of US media outlets, including the Los Angeles Times, the New York Times and MacMillan (US), as well as Human Rights Watch, Global Witness US and Greenpeace International.

The House of Lords debated on the 28th October 2009, Lord Lester's clause included in the Coroners and Justice Bill to abolish blasphemy in Northern Ireland.

The amendment was withdrawn. This means that the law stands as it is.

The feeling was that it is an issue that should be debated by the Northern Ireland Assembly rather than Westminster.