Sense About Science – along with a whole raft of other organisations* – have published a libel guide for bloggers: ‘So you’ve had a threatening letter. What can you do?’ Below is the animated button they’ve created that practically begs you to click it and download the PDF.

I’m curious why they haven’t published it as a series of webpages to make it easier to find via search, and to link to – maybe I’m missing something. In the meantime, the PDF is well worth a download.

*Index on Censorship, English PEN, the Media Legal Defence Initiative, the Association of British Science Writers and the World Federation of Science Journalists.

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TechCrunch’s Paul Carr has a thoughtful piece on “cyber-vigilantism” where citizens witness or experience a crime and go online to chase it down, name the alleged perpetrators, or pressure the authorities out of complacency:

“[W]hen that naming happens, the case is over before it’s begun: no matter whether the accused is guilty or innocent, they are handed a life sentence. Until the day they die, whenever a potential employer or a new friend Googles their name – up will come the allegation. And, prison terms notwithstanding, that allegation carries the same punishment as guilt – a lifetime as an unemployable, unfriendable, outcast. There’s a reason why the Internet is a great way to ruin someone with false allegations – and it’s the same reason why falsely accused people are just as likely to harm themselves as guilty people.”

The post was written after TechCrunch decided to delete a story about an alleged sexual assault and is a useful read in provoking us as journalists in any medium to reflect on how we treat stories of this type.

There are no hard rules of course, and associated legal issues vary from country to country.

In the Judith Griggs case, for example, was I right to post on the story? My decision was based on a few factors: firstly, I was reporting on the actions of those on her magazine’s Facebook page, rather than the ‘crime’ itself (which was hardly the first time a publisher has lifted). Secondly, I waited to see if Griggs responded to the allegations before publishing. Thirdly, I evaluated the evidence myself to see the weight of the allegations. Still, I’d be interested in your thoughts.

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As a lone blogger how much legal protection do you have? No more than anyone else, when it comes to libel, contempt of court law and so on, except that people are more likely to pay attention to large media organisations.

But there are many instances where bloggers have lost a lot of time and money over legal disputes. Last week, for example, journalist and blogger Dave Osler finally saw an end to a legal battle that consumed three years of his life, after he was sued for libel by the political activist Johanna Kaschke. Despite being refused the right to appeal the strike-out of the Osler case, she is still planning to appeal another High Court decision that ended her libel claim against Alex Hilton and John Gray.

If all individual bloggers worried about getting into trouble too much, we’d write much less than we do. Even big scary cases aren’t a deterrent: Dave Osler is still blogging. I was personally surprised by the results of my survey of 71 small online publishers this summer. Not that only 27 per cent had been involved in legal disputes (that was about what I expected) but that over half were satisfied with the number of legal resources available.

Personally, the grey areas of law trouble me and I don’t think there could be enough support: I’d like to see more organised structures for legal help, a sort of Citizens Advice Bureau for bloggers, if you like. Informal advice is already spreading via social networks, as lawyers increasingly use Twitter and blogs to join the conversation.

As I reported on my site Meeja Law, one hyperlocal blogger who was accused of breach of copyright asked for legal advice via Twitter: “Two separate media lawyers confirmed (for free) that I’d done nothing wrong. I also contacted [hyperlocal organisation] Talk About Local for advice, and they told me the same.”

Talk About Local has published several media law guides online (eg. this one on defamation) and the organisation’s founder William Perrin offers some frank legal advice ahead of a legal session at last weekend’s London Local Neighbourhoods Online Unconference:

…just about the best legal advice, which very few follow is to set up a 
limited company and keep the website inside that. Then you don’t lose 
your house to a nutter under defamation law….

Another concern of mine is the lack of transparency of courts data, something I’ve discussed at length here. I think bloggers should be able to access more information about cases; at the very least, the Ministry of Justice needs to consider its outmoded contempt of court law that is ill-equipped to deal with the online age.

In the coming months, I’d like to build up the conversation in this area and think about how we might approach some of these issues. If you’d like to be part of this informal online ‘working group’ please consider joining the Help Me Investigate challenge at this link (request membership here), or discussing via the OJB Facebook group.

UPDATE [Paul Bradshaw]: I’ve created a LinkedIn group as a place for people to more openly discuss how to take this forward.

Judith Townend (@jtownend on Twitter) is a PhD research student at City University London and freelance journalist.

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UPDATE: You can vote to repeal the ban on recording court proceedings here (Thanks to Alistair Kelman in the comments)

Heather Brooke is calling for a campaign to allow recording in UK courts. I agree. In the comments below, let’s talk strategy.

Meanwhile, here’s some of the background from Brooke’s related blog post:

How:

“The simple answer is to allow tape recorders for all: no party is disadvantaged and an ‘official’ recording is there for checking. This is how it works in other countries. But this is to ignore the root objection of the courts: that they are losing control of how court proceedings are presented to the public.”

Why:

“You might like to know whether the builder you’re going to give your keys to has any convictions for theft or if the company you’re about to do business with has a report for fraud. Tough. This information is not a click of a button away. Instead you’ll have to know the details of the case before you can call up any records – even though it’s the existence of cases that you’re trying to find in the first place. It’s Catch-22. If you do know the details of the case you’re then forced to undergo a tortuous and tedious process which involves battling a raft of petty officials across a number of court offices all for the simple purpose of accessing information that is supposedly public.”

And what:

“There are three main things that would make the courts useful to the general public:

1. knowing by name who is using them (the court list);
2. why (the particulars of claim);
3. the result (the verdict, sentence or settlement).

“Yet trying to get any, let alone all, of these is fraught with difficulty.”

So: strategy. To kick things off, I’ll give you 3 starters:

• the much-mocked Your Freedom website inviting suggestions for laws to get rid of (how seriously is this being taken in government?)
• the Number 10 petitions site (likewise)
• Contact your MP.

Come up with some better ideas than that, and we’re somewhere.

Meanwhile, to spread awareness of this, why not tweet about this with the hashtag #opencourts (UPDATE: Also #courtrecord thanks to @JackofKent)

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In a guest post, blogger Tim Kevan explains why he resigned from The Times over the paywall

Back in early 2007 I had been practising as a lawyer for some nine years. But I’d always dreamt of living by the sea and the surf and maybe even writing a novel. I just couldn’t quite see how it could be done.When I finally sat down to write a legal thriller what popped out instead was a legal comedy about a fictional young barrister doing pupillage.

I called him BabyBarista which was a play on words based on his first impression being that his coffee-making skills were probably as important to that year as any forensic legal abilities he may have. I wrote it as a blog and was hopeful it might raise a few smiles but in my wildest dreams I hadn’t imagined quite the extraordinary set of circumstances which then unfolded with The Times offering to host the blog and Bloomsbury Publishing of Harry Potter fame offering to make it into a book.

Since then the first book came out last August and was originally called BabyBarista and the Art of War. It is being re-issued in August under the new title Law and Disorder and the sequel is due out next May.

I was also continuing to publish my blog on The Times until May this year when it became clear that even blogs were going to go behind their new paywall.

Now don’t get me wrong. I have absolutely no problem with the decision to start charging. They can do what they like. But I didn’t start my blog for it to be the exclusive preserve of a limited few subscribers. I wrote it to entertain whosoever wishes to read it.

So I decided to resign from The Times, a decision I made with regret and despite continuing to be grateful for their having hosted my blog for three years.

The problem was that I simply didn’t think many people would have read my blog stuck not only behind a registration wall but also with a fee for entrance on top of that. I also think that it could have been avoided since there are so many innovative ways of making cash online and the decision to plump for an across-the-board blanket subscription over the whole of their content makes them look like a big lumbering giant, unable to cope with the diversification of the media brought about by online content, blogging, Facebook, Twitter – the list is endless. Canute-like in their determination to stop the tide of free content and using a top down strategy which for the moment at least appears to lack any flexibility.

A more sophisticated approach might have been to keep the existing platform and content free but to start charging for different types of premium versions such as iPhone or iPad apps or more in depth and specialist content. This would have maintained the all-important traffic whilst at the same time allowing tem to charge those who had no problem with paying.

But even beyond the unlikelihood of people paying for news that they can get elsewhere, the other more general problem is that in my view many writers are not simply driven by money. They are bright enough to earn more elsewhere. They write to get things off their chest, to entertain and to influence. To be a part of the debate. In the game and definitely not sitting on the sidelines failing to be heard. Maybe not quite the vain, power-hungry ego-maniacs that some would have us believe. But they want a voice. They write an article they want people emailing it to their friends, posting it on Facebook or Twitter or linking to it on their blog. Of course people can still put links now. But it seems unlikely they’ll do it so readily when they know that they’re likely to leave many people feeling frustrated at not being able to access the content in one click and for free.

As for me, I set up my own site for the blog and have also been taken on by The Guardian. With over thirty million users a month, not only do they have what I consider to be the most vibrant and innovative online presence of any of the national newspapers but also what in my view is now the very best law section in the country.

I’m also particularly impressed by the way they have introduced the idea of partnering with bloggers such as myself whereby I can retain my own website and identity as well working directly with them. It’s a paradigm-shift away from the old-school need for ownership and exclusivity and is definitely the way forward for traditional media to harness the power and energy of the web’s creative forces.

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1. It’s the economy, stupid

Last week’s official advice (Word doc) on the bill ‘would effectively “outlaw open Wi-Fi for small businesses”‘ said Lilian Edwards, professor of internet law at Sheffield University.

“This is going to be a very unfortunate measure for small businesses, particularly in a recession, many of whom are using open free Wi-Fi very effectively as a way to get the punters in,” Edwards said.

It also makes it harder and more expensive for the sort of mobile young business people who frequent these shops. In Birmingham, for example, many entrepreneurs meet in places like Urban Coffee Company and Coffee Lounge to network, exchange ideas, and work (often at the same time). Take that away and you’re making it more expensive for those people to do business, it’s as simple as that.

In addition, the likes of Clause 17 (see below) make it difficult for any business to plan and innovate in an environment which can be changed on the whim of the Secretary of State.

2. Death to open access

Last week’s document would also “leave libraries and universities in an uncertain position,” adds Edwards. From ZDNet:

“Universities cannot be exempted, [Lord] Young said [in the document], because some universities already have stringent anti-file-sharing rules for their networks, and “it does not seem sensible to force those universities who already have a system providing very effective action against copyright infringement to abandon it and replace it with an alternative”.”

In fact, the government would do well to look more closely at just how ‘effective’ those university measures have been. I know of students who have had internet access cut off without notice for apparently completely legal activity. I guess you’d call that ‘collateral damage’, and it’s a sign of things to come if we extend the principle throughout the country.

There’s a principle of open access to knowledge here that lies at the heart of what libraries and universities do. Restricting their (already hamstrung) ability to offer that is of real concern.

3. Unchecked power

Clause 17. Backed by the NUJ. Are you insane?

Clause 11. From SamKnows:

“What’s rapidly becoming the textbook example of this is the way that legislation designed to freeze terrorist funds was used against one of Iceland’s banks, Landisbanki, during the country’s recent financial crisis.

“[Francis Davey, a practising barrister and legal advisor, says] “Clause 11 could easily be used to force the blocking of specific sites or group of sites, such as those that have been identified as having unlawful content by an organisation like the Internet Watch Foundation; or the choking of specific forms of P2P protocol,” he told Samknows. “There is not even a requirement that the subscribers to ISP’s are made aware of technical measures which could be imposed by stealth. The fact that there is no need to publish or consult on the use of the power means that there is minimal external quality control, or publicity which might serve in lieu of parliamentary scrutiny.””

4. The logic behind it is flawed, the data is skewed, and most people don’t want it

There’s a great piece by Rory Cellan-Jones that identifies some of the data that is lacking surrounding the bill. Meanwhile, hello everyone from Mark Thomas and Google, Facebook, Yahoo and eBay, to MI5, Talk Talk and, yes, Stephen Fry, the Serious and Organised Crime Agency, Metropolitan Police, Consumer Focus, er, the public according to polls.

What can you do?

You don’t even have to take to the streets…

• Adopt an MP at Open Rights Group (there’s also a wiki)
• Add your voice here
• Sign the petition on the Number 10 website

You can also receive email and RSS updates for the Bill via the Parliament website

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There’s a fabulous post over at the Center for Social Media on when using copyrighted material in video comes under fair use. If the work is ‘transformative’ then there’s a strong case for fair use. Examples include:

1. Adding satirical subtitles, fan tributes, parody, critique
2. Using copyright material for illustration of example (e.g. stages in a star’s career)
3. Accidental capture – e.g. music playing in the background while someone dances (if unstaged)
4. Documenting an event or experience, e.g. presence at a concert
5. Mashups, remixes or collages that create new meaning from old material

But of course this is all under American law. My question is: how far do these same examples go under UK law? I’d love to know your experiences and interpretations.

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This* is worrying on so many levels:

• a blogger links to evidence linking a reverend in the Anglican church with holocaust denial and antisemitism
• the reverend complains to Surrey Police, who pass it on to Yorkshire Police, who pay the blogger a visit, during which the blogger agrees to delete one of his blogs.
• in addition, it appears that the police have also spoken to the university which the blogger attends, where the head of ICT “would like to remind me that I should not be using university property in order to associate individuals with terrorists and Holocaust deniers”
• The blogger eventually chooses to speak up when the same reverend threatens another blogger with similar action (despite them being in Australia)

Forget about the specifics. Here are the questions:

• Why are police getting involved in a libel issue ? Update: West Yorks police say it was a claim of “harassment”.
• Why are they ‘paying a visit’?
• Why are they approaching an educational institution to gather information on that person?
• Why does that educational institution then get involved?

Extremely worrying. Watch this one.

*If that link doesn’t work, try this or this.

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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.

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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:

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