Rob Minto looks at two recent cases that leave the field of libel online as confusing as ever.

For several years, newspapers, bloggers and other online publishers have been waiting for a landmark case to clarify defamation online.

The unanswered questions have been along the lines of: who’s responsible – the author or publisher (or even ISP)? What jurisdiction will it fall in? What kind of audience is required (if at all?)

In the UK, in quick succession, there have been two cases which have, if anything, muddied the waters.

Most recently there was the case of libel between Caerphilly town councillors Eddie Talbot and Colin Elsbury. Mr Elsbury claimed on Twitter that Mr Talbot had been removed by police from a polling station. Mr Talbot has successfully sued him for libel, and Mr Elsbury had agreed to pay Mr Talbot £3,000 in compensation, to publish an apology on his Twitter site, and pay legal costs.

At time of writing, Mr Elsbury has 30 followers on Twitter, a group that could easily fit into a pub (relevance will be clear later).

Some clarity, you might think – but earlier this month, Jane Clift lost her case against the Daily Mail, in which she was trying to get the identities of two commenters on a Daily Mail article to sue them for defamation.

This from Out-Law:

Mrs Justice Sharp said that Clift’s case was not strong enough to merit the identification, and that she should not have taken the comments as seriously as she did.

“It was fanciful to suggest that a sensible and reasonable reader would understand those comments as being anything more than ‘pub talk’,” she said in her ruling.

This raises a lot more questions than it answers. In no particular order:

• The Daily Mail has an audience of millions. That’s far bigger than a pub. How is it not defamatory to post something libellous on a website? If the comments were not defamatory, then give her the names, let her try and sue, and she can lose that case in a court of law.
• If the comments were not defamatory, then why has the Mail removed them?
• Was Ms Clift penalised for looking like too much of a complainer? Originally, Slough council put her on some watch-list for complaining about a drunk, she then sued them (and won), and then has taken a legal case against the Mail. On paper, that looks like a lot of complaining. But then, what was she supposed to do? She’s in a Kafka-esque chain where one (legitimate) complaint has led to another, and to her life being up-ended. She’s using the courts, which is what they are there for. Except for libel, where she’s been restricted.

So, to sum up: if you post something libellous on Twitter about a local rival politician, and have only 30 followers, you can get sued. If you say something potentially libellous, using a pseudonym, on a UK newspaper site, with page views in the millions, you’re fine – that’s just “pub talk”.

I’m quite confused.

[Disclaimer: I work as the Interactive editor at the Financial Times. On FT.com we have users comments on our blogs and other sections of the site, and operate a post-moderation policy.]

Last month I blogged about the consultation currently taking place on the law of defamation and the multiple publication rule. The deadline for that is today. Below I’ve published my own responses. If you feel I’ve got something wrong or missed something, please let me know.

Question 1. Taking into account the arguments set out [in the document], do you consider in principle that the multiple publication rule should be retained? If not, should a single publication rule be introduced? Please give reasons for your answers.

Comments: Based on the arguments set out, I do not believe that the multiple publication rule should be retained. The primary reason for this is that the burden of proof in these cases rests on the publishers, in situations where any records may well have disappeared. This is particularly problematic when employment within publishing is increasingly unpredictable, and employees – along with their records – are either frequently leaving or being made redundant from positions, or working for the organisation on a freelance basis. A single publication rule should be introduced.

In addition, the multiple publication rule is based on a print-based industry where defamatory material might be hard to access. In an industry that commonly publishes content online, with its concomitant findability, ease of distribution, and monitoring, it would be particularly unusual for a person not to become aware of defamatory content within a year of its publication.

Question 2. If the multiple publication rule were to be retained should there be an obligation to place a notice on an archive once the person responsible has been notified that the material is subject to defamation proceedings?

Comments: Yes. This would not only guard against other actions but also alert potential witnesses who may read the article or, in future, receive updates on it.

Question 3. Do you agree that if a single publication rule were to be introduced, it should apply to all defamation proceedings, not just those relating to online publications?

Comments: Yes. Otherwise someone could simply use online archives to find the material but visit the physical archives to support their case.

Question 4. If a single publication rule were introduced,

a) should it be made obligatory to remove or amend material held in other formats under the control of the same publisher in the event of a successful defamation action against the original publication of the material?

Yes. Clearly if material is found to be defamatory then the publisher should alter any defamatory material under their control.

b) should there be a provision that, where defamatory material is re-transmitted in a new format, the single publication rule would only protect the previous publisher and not the publisher of the new article?

No. The idea of an article, for example, linking to defamatory material being defamatory itself would seriously threaten the culture of transparency in web publication where authors are expected to link to their sources.

Question 5. 
b) Should online content that has been modified be regarded as a new publication?

No. This would discourage useful modifications and corrections as staff would then have to check the entire text every time a small element of it was brought to their attention. If every modification was considered a new publication, publishers would simply leave erroneous or outdated material unchanged.

Question 6. As an alternative to introducing a single publication rule, do you consider that the Defamation Act 1996 should be amended to extend the defence of qualified privilege to publications on online archives outside the one year limitation period for the initial publication, unless the publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or statement by the claimant by way of explanation or contradiction? Please give reasons for your answer.

Comments: I am inclined to say ‘Yes’ here because it restricts the opportunity for profit-motivated legal action against publishers. However, such a move also runs the risk of inclining publishers to complying with such requests to avoid losing their qualified privilege, regardless of the truth of the ‘reasonable’ letter. It’s not clear whether simply having a commenting facility on a story represents an opportunity for claimants to update an article with a response, or whether that response would have to be published in the main body of the article. All these elements need to be factored in.

Question 7. Do you agree that if the multiple publication rule is retained, the limitation period should remain at one year from the date of publication (with discretion to extend)? If not, what limitation period would be appropriate and why?

Comments: Yes. As the current one year period is not causing problems, there appears little reason to extend to ten years.

Question 8. 
a) If a single publication rule were introduced, should the limitation period of one year run from the date of publication (with discretion to extend) or the date of knowledge (without discretion to extend)? If the latter, should there also be a ten year long-stop from the date of publication?

From publication. The introduction of date of knowledge is problematic to prove and makes preparation of a defence equally complicated. Given the accessibility of contemporaneous content, companies and those in the public eye are likely to monitor online media for mentions and become aware of defamatory content quickly. Even those who don’t are likely to be made aware of potentially defamatory content within a short time, given the nature of the web. The increased ability of people to search, distribute and access content online makes it difficult to support any limitation period based on date of knowledge.

Yesterday I hosted a session on law for my MA Online Journalism students, which I thought I would embed below.

Some background: I teach all my sessions in a coffee shop in central Birmingham – anyone can drop in. This week I specifically invited local bloggers, and so the shape of the presentation was very much flavoured by contributions from The Lichfield Blog‘s Philip John; Nick Booth from Podnosh and BeVocal; Talk About Local‘s Nicky Getgood; Hannah Waldram of the Bournville Village Blog; Gavin Wray, Matthew Mark, and Mike Rawlins of Stoke’s Pits N Pots. The editor of the Birmingham Post Marc Reeves also came for an hour to share his own experiences in the regional press.

Two things occurred to me during the process of preparation and delivery of the session. The first is that law in this context is much broader: as well as the classic areas for journalists such as defamation, you have to take into account online publishing issues such as terms and conditions, data protection and user generated content.

Secondly, I’ve long been an advocate of conversational teaching styles (one of the reasons I teach in a coffee lounge) and this was a great example of that in practice. The presentation below is just a series of signposts – the actual session lasted 4 hours and included various tangents (some of which I’ve incorporated into this published version). Experiences in the group of students and guests ranged across broadcasting, print, photography, online publishing, academic study, and international law, and I came out of the session having learned a lot too.

I hope you can add some more points, examples, or anything I’ve missed. Here it is:

Forget about turning your Twitter avatar green or adding a Twibbon, here’s something you can do today which can make a genuine difference to both professional journalists and bloggers: write to the Ministry of Justice as part of their consultation on defamation which has just a few weeks left:

“This consultation seeks views on the ‘multiple publication rule’ under which [people can be sued for every time a web article has been  accessed], and its effects in relation to online archives. The paper considers the arguments for and against the rule and the alternatives of a single publication rule.”

This consultation couldn’t have been published in a more user-unfriendly way. The consultation page consists mainly of a link to a PDF and a Word document (which was clearly written for an online form that was never created, even down to HTML coding).

There is no clear address to send your responses to. You’ll find it on the 4th line of the Word document. It’s defamationandtheinternet@justice.gsi.gov.uk. Don’t worry, I’ll repeat that again at the end of the post.

UPDATE: RightToReply.org have published the consultation in their trademark easy-to-respond form here.

Here’s what they’re asking (also here, here, here, here, here and here), reproduced in a rather easier-to-navigate format and rephrased for slightly easier reading:

• Question 1. Taking into account the arguments set out in the PDF, should the multiple publication rule be retained? If not, should a single publication rule be introduced? Please give reasons for your answers.
• Question 2. If the multiple publication rule were to be retained should publishers have to place a notice on an archive once the person responsible has been notified that the material is subject to defamation proceedings?
• Question 3. If a single publication rule were to be introduced, should it apply to all defamation proceedings, not just those relating to online publications?
• Question 4. If a single publication rule were introduced,
  1. If the publisher is successfully sued against the original publication of the material, should publishers have to remove or amend material held in other formats under their control?
  2. should there be a provision that, where defamatory material is re-transmitted in a new format, the single publication rule would only protect the previous publisher and not the publisher of the new article?
  3. if neither of these are considered appropriate, how could claimants’ interests be protected?
  4. should the existing ‘voluntary’ obligations to correct inaccurate and misleading material be strengthened? If so, how should this be done?
     Please give reasons for your answers.
• Question 5.
  • a) If a single publication rule were introduced, do you consider that the approach taken in the United States in respect of what constitutes a new publication of hard copy material would be workable? If not, what changes should be made?
  • b) Should online content that has been modified be regarded as a new publication?
  • c) Are there any other issues that would need to be resolved in establishing a single publication rule? Please give reasons for your answers.
• Question 6. As an alternative to introducing a single publication rule, should the Defamation Act 1996 be amended to extend the defence of qualified privilege to publications on online archives outside the one year limitation period for the initial publication, unless the publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or statement by the claimant by way of explanation or contradiction? Please give reasons for your answer.
• Question 7. If the multiple publication rule is retained, should the limitation period remain at one year from the date of publication (with discretion to extend)? If not, what limitation period would be appropriate and why?
• Question 8.
  • a) If a single publication rule were introduced, should the limitation period of one year run from the date of publication (with discretion to extend) or the date of knowledge (without discretion to extend)? If the latter, should there also be a ten year long-stop from the date of publication?
  • b) If you consider that an alternative approach would be appropriate, what should this be and why?

In case you need further nudging, I’ve started a pledge at PledgeBank – if 10 people sign up to that pledge to write to the MOJ, then I will write too. But not until then. If you need any help let me know.

Once again, the email to send your responses to is defamationandtheinternet@justice.gsi.gov.uk. Please don’t be put off by the exam-style phrasing and intimidating raft of questions. Just answer the questions you feel able to respond to. If you’ve ever complained about the law not catching up to the internet age, this is your chance to do something about it. So do it.

(This article has been developed from a comment I left on Nick Baines’ blog, where there was a good debate about the rights and wrongs of anonymous blogging.)

Good Reasons for pseudonymous blogging

I think the right of bloggers to post anonymously/pseudonymously is important, for a number of reasons, but I like the term coined by Nick – “principled anonymous blogging”. Some bloggers have good reasons to conceal their identity, and that should be respected. Here are a few justifiable reasons for bloggers to use a pseudonym:

1 – Physical Danger

For many people, to deny them anonymity is to deny them a voice or put them in physical danger. Consider refugees or campaigners from abroad. What about victims of domestic violence – why should they not be able to speak in public without fear?

2 – Over-heavy restrictions imposed by employers

In this country, we see bloggers sacked If a blogger defames their employer or violates a reasonable contract, then I have no problem with sanctions being taken.

However, in the UK we do not have the balance right yet between freedom of expression, and the right of employers to restrict employees’ actions outside the workplace. This question is tied up with the need to create rational British (and particularly English) laws guaranteeing a right to express an opinion.

3 – Widening political participation

At a time when renewal/broadening of our political process to help individuals participate is perhaps the single most important challenge we face, we should not frighten people away from expressing their views publicly.

A good number of established bloggers have started out without revealing their identity, including me. In my case, I needed to distance my political commentary from a short-term contract in a workplace which required political neutrality. This was one of the coincidental reasons why I have ended up editing a non-partisan blog.

4 – Fear

There are many, many, examples of posts that would not have happened if not made anonymously. One example was the “Dave Walker reposts” here, which were part of a blog campaign starting in summer 2008. Much of the reporting of that saga – some by insiders whose jobs were at risk – would not have happened without anonymity; many people had been subjected to extended bullying at work, and were *frightened*.

Stick to one pseudonym

To me the key point about acceptable anonymous/pseudonymous blogging is that it be done with a consistent identity, so that debate is transparent.

There is an argument that different pseudonyms are acceptable in each niche or community where a person participates; I’m not commenting on the detail of that question here.

Pseudonyms in the wider media

If we are going to question blogging anyonymity, then we have to come up with a set of criteria which we also apply to pseudonyms used elsewhere and far before blogs even existed.

Newspaper diary columns, and writers in general, have used pen-names (or maiden names), for centuries. This is often ignored.

Online anonymity isn’t usually anonymous

In practice, most websites and online companies will divulge identities when faced with a demand from a Court of Law, as has been seen in recent Court Cases.

There are very few publishers in the UK who would conceal the identity of an abusive author. However, a whistleblower would be in a diifferent category.

Wrapping Up

My (obvious) conclusion is that it is not “anonymity” which is the problem, but rather “the abuse of anonymity”; the latter is where our laws should focus.

Statement on Chetan Kunte

Here’s a clever move:

• Indian TV station NDTV, and specifically broadcaster Barkha Dutt, is criticised for coverage of the Mumbai attacks. As Gaurav Mishra describes it:
  “Bloggers were scathing in their criticism of Barkha Dutt’s sensationalistic coverage of the 11/26 Mumbai terror attack, accusing her of broadcasting sensitive information about the position of hostages and security troops, sensationalizing the news coverage, and being borderline hysterical, in general. The National Security Guard, the Naval Chief, and the Information & Broadcasting Ministry had also criticized Indian news television coverage of the crisis. This groundswell of criticism prompted mainstream media to join in (The Hindu, The Indian Express) and forced Barkha Dutt and NDTV to go on the defensive (LiveMint).”
• Amid this “groundswell of opinion”, NDTV appears to threaten one of those critics – the blogger Chetan Kunte – with legal action.
• Kunte pulls his blog post and replaces it with a retraction statement (image above) that sounds as if it’s been dictated by someone else’s lawyers.
• Indian blogosphere erupts in outrage, and either links to a Google cache of that withdrawn blog post, or republishes it entirely. Not to mention critically discussing the TV station’s coverage once again.

Lesson to news organisations: your viewers are your distributors now. Suing them is not good management. Nor is it good for freedom of speech – something you might find useful yourselves in the future.