Now for e-libel
Sunday July 27 2003
Duncan Lamont, The Observer
Obituaries for the law of libel are, it seems, premature. Disappointing as this may be to many journalists (though not all, as journalists and editors are regular customers for libel lawyers), recourse to the law of defamation has not been replaced by a scramble to bring privacy claims. So some lawyers may have rebranded themselves as privacy experts a little prematurely.
Libel claims are down (anecdotal evidence has it by as much as two-thirds since 2000) but big defamation claims remain. And the internet is starting to produce a flow of new business.
Politicians and libel lawyers have often worked closely together in the past and, it seems, will continue to do so. Lord Archer has promised vengeance on his enemies and he knows a thing or two about the libel courts. So does George Galloway MP, already successful over the past decade against the Mirror, Today, Sunday Telegraph, London Evening Standard, and two Arab papers (he is now taking on the Telegraph again). And Nato general-secretary Lord Robertson has just launched a defamation claim against the Scottish newspaper the Sunday Herald after a libellous posting on the message board of the newspaper's website. The Scottish writ seeks ¡Ì200,000 damages plus costs after the former MP was falsely accused of helping Thomas Hamilton, who shot dead 16 people in Dunblane in 1996, to obtain his gun licence.
Robertson feels that the allegations are so serious that they could hinder his chances in the employment market when he steps down as head of Nato at the end of this year. He, too, is no newcomer to libel claims - in 1995 he successfully sued the publisher Macmillan over a claim made in Oleg Gordievsky's book on the KGB.
In February 2003 the Sunday Herald was running an online discussion forum in response to an announcement that 106 official documents relating to the Dunblane massacre, including a letter from Robertson to the then Scottish Secretary Michael Forsyth (Hamilton's MP) relaying his concerns about Hamilton's militaristic boys camps, would remain classified for a century. The online editor invited comments from site visitors which prompted speculation, and allegations, over Robertson's role. Perhaps offering a red rag to a bull, the site had asked people to comment on speculation about Hamilton's supposed links with prominent Scots via freemasonry.
The writ claims that, due to a lack of website policing, the allegations remained on the message board for more than three weeks and were only removed when Robertson brought the postings to the attention of the Sunday Herald's editor, who then acted expeditiously and removed them.
The newspaper could find itself between a rock and a hard place. Legal scrutiny is likely to focus on whether there was reasonable care taken to police the site. If it invited possibly scurrilous allegations and did not edit, that might well not be reasonable; but if it did edit and allowed the clearly defamatory posting to stay online for weeks that might not be reasonable either. It is likely to be argued that in such circumstances the newspaper is as responsible for readers' online views as it is for correspondence from readers published in the letters page. But the Scottish courts may decide to take a different (and more modern?) view of the difficulties that are faced by publishers who want to encourage debate, the relevant law being section 1 of the Defamation Act 1996.
An as yet unknown reader accused Robertson of signing the firearm certificate recommendation for Hamilton and, according to the writ, using his influence to force the police to ignore their suspicions about him. The contributor had got his facts wrong, claiming that Robertson was the killer's local MP, when in fact he represents Hamilton South, 35 miles away. There were also further derogatory allegations by two other contributors to the site.
Earlier this month the Sunday Herald ran the libel claim as a news story and quoted in full the allegations made on its website and stated that less than 400 visitors would have viewed the postings objected to (Robertson's lawyers believe the figure to be much higher and point out it was available worldwide).
As every journalist knows, claim forms are privileged documents and fair and accurate reports of their contents can be published without creating a fresh libel risk.
In England, Australia, the US and elsewhere the courts have scrutinised libels on the internet, but Scotland has not yet had full judicial analysis of the liabilities of internet service providers (ISPs) or publishers such as newspapers or the BBC with interactive message boards or chatrooms. As one might fear, different countries take different judicial views on the internet, with the US protecting ISPs (with the Communications Decency Act 1995) by not treating them as the publishers of information put on the worldwide web by someone else (though the person posting, if traceable, could be sued). The US Telecommunications Act set out the "Good Samaritan defence" protecting ISPs and publishers who take steps in good faith to restrict access to pornographic or defamatory postings. There is no requirement to police services to prevent outrageous libels but, on being notified by the person libelled, they must be withdrawn.
American lawyers take the view that the internet is rather like a telephone line. If a caller slanders someone it would be harsh to blame the telephone company. Even here British Telecom is not (yet) held responsible for what people choose to say on the phone. The US system may be good for freedom of expression but it has led to innocent claimants, victims of hoaxes and obscene messages, having no realistic legal remedy.
But the Defamation Act of 1996 is tougher on publishers. English judges consider a posting on the internet to be a fresh libel and one that continues if it is still accessible through an archive. Section 1 of the 1996 Act helps only if the defendant can show that he was not the author, editor or publisher of a defamatory statement, took reasonable care and did not intentionally (such as a provocative invitation to leave postings or an obviously libellous front page) contribute to the publication of a defamatory statement.
This may help printers and distributors but not broadcasters and publishers, and we may soon learn what the Scottish take on this conundrum of balancing free speech and reputation will be.
Libel remains a funny old game. James Hewitt has recently been much in evidence as Diana's lover, and this is the same man who sued the Sun in 1992 over allegations about a relationship with the late Princess. He explained at the time that he dropped the case to spare his friend (not lover) the ordeal of giving evidence.
This was not the first, and it will certainly not be the last, gagging writ issued by a claimant on dodgy ground. There is plenty of life in libel yet.
¡¤ Duncan Lamont is a media partner at City solicitors Charles Russell
Copyright Guardian Newspapers Limited