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LIBEL LAW AND THE PIGGY BANK RAIDS

31-05-2010

As we reported at the weekend, Lord Lester is introducing a private members bill to amend the libel laws. George Makin argues that change is long overdue.

The publication of Lord Lester's reform Bill of the Defamation Act should be welcomed, particularly by those who use the internet as their main platform to publish articles and promote debate.

But would the bill stop those with the money or access to the legal system from issuing multi writs not for the intention of protecting their good name or reputation but instead to harvest as much money as they can, whether or not the article has actually caused them damage ?

As the law stands a repeat of defamation is seen as a fresh libel.

For bloggers and websites this is a particular danger.

Under the present laws, the mere act of linking to a story which later turns out to be defamatory is grounds for a libel action against the owner of the site, and anyone who repeats the defamation in a discussion forum such as the popular Stirrer site, is also open to legal action.

The vast majority of sites rely on links to national and local media stories to stimulate site traffic and debate anyone but in doing so the have to rely on the original source getting its facts right.

But with the best will in the world and even with high editorial standards, mistakes do happen.

Big media organisations understand this and plan for such, but for small publishers any mistake can be fatal.

The actual payout to those defamed maybe small but the resulting legal bills can be enormous even when the publication takes prompt action to apologise for, correct and withdraw the error.

For websites and bloggers who simply can’t afford the legal fees and piggy banks accounts, bankruptcy may be the only option.

Lord Lester’s reform bill proposes to give a defence in these cases.

It would allow for a "take down" clause.

When someone is a "facilitator" (that is, a person concerned only with transmission or storage but with no control over content) unless a libel claimant can show when he give notice of the defamatory publication that the publication or website did not comply.

The trouble with this is that claimants could argue it would be impossible for them to contact every internet site demanding they remove a libelous publication, links to or comments on the original publication.

The emphasis would sit with the owners of the websites to monitor the original story and make changes or post corrections as soon as the original story was “taken down.”

Given most websites are run by amateurs or by small teams of people with limited facilities that would be almost impossible.

But there is a defence already on the law books of innocent dissemination which could be expanded to cover these circumstances.

This defence is presently used by distributors of publications, newsagents and libraries who can claim that because they could not reasonable know that the article they were distributing was libelous then they are not liable.

An extension of that defence to websites would still require the owners to take down a libelous statement and make a correction and to accordingly edit any comments but only when they became aware that the original article was libelous.

It would not protect any original material posted on websites, no more than if a newsagent stuck up a poster in his window saying that his next door neighbour was a crook, and it would not protect any comments made on that material posted on that website.

Freedom of speech does come with responsibilities and bloggers and website owners have to take their responsibilities seriously but at the same time they shouldn’t be allowed to be ‘raided’ by claimants who are not intent on restoring their good names and reputations but making hay while the sun shines.

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