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.
For goodness’ sake, think this through. The only way you’ll “lose your house to a nutter” (nice sympathetic choice of words there) under defamation law is if you actually defame them. So, how about this as a radical solution: don’t defame people. It’s cheap, quick and easy, and it doesn’t need a roomful of self-important people discussing it for months.
‘Not defaming people’ doesn’t stop people from accusing you of defamation/invasion of privacy/harassment/breach of copyright/being a potential terrorist (I’m serious). I think what Judith is trying to do here is create a network of legal support for bloggers who may get dragged into legal threats or processes. I don’t think she’s trying to arrange a roomful of self-important people waffling on. We get enough of that at journalism conferences.
My own reading of Judith’s post is that the problem isn’t so much defaming people as ‘losing time and money over legal disputes’, and the grey areas that online publishing raises. Then there’s the active role needed in reforming the law around, for example, multiple publication or misuse of anti-terrorism legislation.
Bloggers don’t have legal departments that they can pass on complaints to. Imagine if I said to you to get rid of your lawyers and just “don’t defame people”. It’s not that cheap, quick and easy, Jim.
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I agree with Paul’s point here: not defaming someone does *not* protect you from being accused of defamation.
I know one blogger who was threatened with court action for a blog post she wrote. Even though she was in the clear, she had to instruct a solicitor to navigate the legal channels.
The accuser suddenly went quiet and dropped the claim..but she’s still been left with a hefty legal bill.
Perhaps Jim Hawkins has a solution for this too?
If you know the law, you know whether or not you’re in the clear. Sure, not defaming someone doesn’t protect you from being accused of defamation; but being confident that you’ve not defamed someone means you don’t have to run up a legal bill. I’ve been telling myself not to defame people – or to allow people to be defamed, a daily risk on live speech radio – every day for thirty years, and that’s worked just fine so far. I can’t see why you’d be troubled by the sort of so-called ‘grey areas’ in the post to which you linked; they seem pretty clear cut, and I’m amazed it took a morning’s discussion to reach those conclusions.
Judith’s idea of a support network for people who need advice is a good one; no-one could dispute that. But people who are prepared to publish should be prepared to know the law too.
“If you know the law, you know whether or not you’re in the clear.”
So if you don’t know the law you have no compass to help you stay in the clear – including making sure your commenters and contributors are staying in the clear too. If I know where the line is, I can stop myself and others from crossing it.
A support group like that proposed would surely help those who are relatively clueless to be sure they are doing exactly what you suggest.
Exactly; if you know where the line is, you can stop yourself and others from crossing it. So isn’t it the responsibility of anyone publishing anything to make themselves aware of where the line is? Rather than being clueless, shouldn’t they get a clue – and know the law – before publishing? A support group would be nice, but all they need is a copy of McNae.
This isn’t just about knowing the law though is it? Presumably Dave Osler knew the law but still, as Judith said, spent three years defending himself and now has a legal bill to pay. Other bloggers may find themselves in the same position and it’d be nice if they had somewhere to turn to and learn from others like Dave.
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I’ve read this article and thought simply get all the information required for your articles/projects and just print them. Use your common sense about using people’s information. Like if you find stuff that’s already printed about the person such as full name and birth date and you print it, it should not be a problem. If so and so tells you not to print something then don’t do it. Are you guys more concerned about how much research you are putting out there to the public? Concern that you don’t know everything about a person to post something?
The critics here are forgetting two things:
1) that not all bloggers are trained journalists with a copy of McNae’s to hand. Many are not even writers, and some are just sharing their hobbies/passions. If you’re not a journalist, you’ve never heard of McNae’s and you don’t know your media law.
2) that steering clear of defaming someone does not protect you from the costs of being falsely accused of defamation (see my previous comment for an example).
To be honest I don’t really see peoples’ opposition to this idea; it’s not as if you’re being asked to pay for it.
Oh, come on. These people are publishing online. Some of them even style themselves ‘citizen journalists’. If they’re going to do that, it is their responsibility to understand the law that applies to it. If they can’t be bothered to learn the fundamentals or even buy the one copy of the one book they need to advise them, then there’s no point in them whining if they break the law and then have to face the consequences. Serves ’em right, frankly.
As I said, I’m not opposed to the idea. Clearly, it would be very helpful for some people.
For a start a lot of hyperlocals reject the label ‘citizen journalist’ which is something that is used more by journalists themselves rather than hyperlocals who are just active citizens trying to add another dimension to engagement within their community.
It’s very naive to think that everyone publishing online is going to have the awareness to know how draconian our libel laws are and that they need to read McNae’s etc in order to be safe.
But even if they did, it won’t stop them getting in hot water. Look at what happened to Hackney Citizen (trained journalists, professional operation) – they were lucky to get the exposure and support they needed, and they weren’t even in the wrong! Others might not be so lucky. Enter the support group.
Do these people drive cars? Ride bikes? Have children? Live in a house? All of these things bring with them a responsibility to be aware of and work within the relevant legislation. So does publishing, online and otherwise. Is it naive to think that drivers should have the ‘awareness’ to understand what road signs mean? #TOHOD …
I would have said that forming such a group was an act of taking responsibility – like ‘having children’ and organising a group as a support network. I don’t see what the problem is or why bloggers should work in isolation.
“If you know the law, you know whether or not you’re in the clear.”???!! As I always tell my students, the law isn’t the law! If it were simply a case of prosecuting the law, then judges wouldn’t have much to do – it could just be automated. No, the law is political, and fighting unjust laws and bad applications of it is political as well as legal. There are ways of publishing material that may be “harmful” but would not get one in trouble. To find these ways is the task of good journalists of any sort, bloggers or otherwise.To share these ways is the duty of good journalists of any sort, bloggers or otherwise.
The other issue here is the economics of libel. The trouble for bloggers and many other online journalist is that the economic relation between the journalist, publisher and defamed is altered. With newspapers, for example, publishing a risky article is an ECONOMIC rather than a moral calculation. Managers weigh the income gained from a scurrilous article against the potential losses of losing a defamation case. Whilst the relation is not always clear, it is certainly a consideration. That’s why they are prepared to unleash an army of lawyers to defend publication of an article.
On the other hand, what is the economic motive of a blog publisher? In individual blog will usually operate at a loss for the publisher, who hosts thousands if not millions of blogs. In the best case scenario, perhaps a more successful blog may generate a few hundred or thousands of pounds for the publisher. But what is a few hundred pounds of income against a tens of thousands of pounds of damages? Why would a blog publisher waste perhaps hundreds of thousands of pounds to protect an article on a blog? It is far easier to just take it down as the lawyers will suggest in the legal notification.
There are indeed many cases of defamation in which the defamed has been clearly wronged. However, there are also many cases in which the subject of an article will attempt to repress truths through threats and intimidation made under the guise of defamation. It is important to consider cases carefully, and when libel is used unjustly as a weapon, bloggers need to get political and strategic. This is the challenge.
It’s far easier to have some idea of what is and what isn’t defamatory, and publish – or not – accordingly. It’s not difficult.
An important point: Dave Osler is a professional freelance journalist with several decades of experience – though he’s now working in something around Shipping (I think).
He’s also a blogging veteran who’s been involved with multiple campaigns on exactly this issue – like many of the rest of political bloggers.
So, there’s quite a bit of experience/knowledge behind his standing his ground.
Good to see you on the OJB.
Great to see discussion on here – it was posted just as I went away so haven’t had a chance to comment till now. A couple of things to add:
Jim, I don’t agree on the whole, but welcome your comments and criticism, thank you. If it was as simple as knowing the law then why do big media organisations with staff trained in media law employ lawyers to check their material? Why do we even need judges to make decisions if there’s a clear right and wrong? Grey areas are not just a result of new technology (for example: how long to allow for a right of reply / are you liable for online comments written by external contributors?) but also because people interpret the law differently. The more research and reading I do around this subject, the more confusing I find the position for online writers. Lawyers I have talked to agree there are uncertain areas for bloggers. The point of this support group would be to identify problem areas and to keep on top of developments in case law etc. I would have thought that is a sensible addition to other media law training and McNae’s and no-one has to join in if they think it’s a waste of time.
Paul, thanks for setting up the LinkedIn group.
Matt, thanks for emphasising that and the wider issues at play. I used the Osler case to show how an independent blogger can get drawn into a legal row very easily – to get to the point where a judge rules in the defendant’s favour or strikes the case out can take years. The Kaschke cases raised especially interesting points about comment moderation. English media law is not like an automated system and with the development of online technology there are many new factors to consider.
Why should it be any different for online writers?
That wasn’t the argument here. I’m simply saying let’s try and clarify the grey areas (which you say aren’t a problem) for writers using a medium which is relatively new in the context of media law . I agree with you – online publishers should know the law. Whether, as Adam said, many are aware of the legislation is also something to consider. This isn’t just about ‘citizen journalists’, I’m thinking about people who set up Facebook groups; who use Twitter.
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One brief point.
I’m all for greater legal knowledge, well I would be wouldn’t I?
But sad to say that does not forestall legal action. If the law were as clear cut as some here are suggesting, then an awful lot of libel lawyers would be out of business.
Many publishers have learnt to their cost that the truth can be expensive if you cannot prove it to the satisfaction of the High Court. Libel claimants know this and the deck is so stacked in their favour, and the danger of loss so expensive, that the mere threat of an action prevents publication. That’s the chilling effect.
Thanks David – you’re right of course. The most depressing experiences I’ve had in media have been sessions with lawyers on what I can’t do. More positively, I hope a support group will give bloggers more confidence in standing up to (and possibly funding) legal action.
I still don’t understand what’s so difficult about simply not publishing something unless you can prove it to be true.
Well Jim, just to cite one example. What about Jeffrey Archer, Monic Coghlan and the Daily Star?
Monica, a prostitute, and the Star were telling the truth, but a High Court jury did not believe them and awarded Archer £500k damages (the judge told the jury to reflect in damages the Star’s insistence on claiming truth)
As we now know, Archer lied and got another witness to lie for him, hence his later conviction for perverting the course of justice.
The Star got its money back, but it took a long time for the truth to come out, and had one of Archer’s alibi witnesses not gone to the police it may never have come out at all.
Truth is an absolute defence, but in proving it you have to bear in mind that a libel court may not look as kindly on your witnesses as you would like.
Blogging is only going to continue and there are a lot of people writing a lot of content, perhaps without knowing exactly what they are getting involved with. A blogging advice bureau would benefit a lot people, and the legal industry generally.
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