One other subject I referred to recently was the question of blogging and defamation law, in which context I quoted another Sunday Times columnist, India Knight:
There's nothing pleasurable about being defamed, although it comes with the territory if you're even remotely successful. Even if you aren't, blogs are so plentiful and, for the most part, uncensored that everyone will soon have experience of this, whether they're an A-lister or a plumber....Both these cases set an interesting precedent - if it's simply not worth suing bloggers, will bloggers become self-moderating, or wilder and wilder in their allegations?
Unsought experience allows me to tackle Ms Knight's question, and my anecdotal evidence may be of interest to others. Wisely, the press has taken the recent claim by Sir Martin Sorrell as the first case of a libel writ concerning a blog. But, as some readers will recall, last year I received an inept attempt at a libel writ for comments that were not wild but merely ones that my interlocutor did not wish to be in the public domain. The purported writ came from the blogger Neil Clark, who I found had given false information about his source material to a newspaper for which he had contributed an article. (Irrelevantly, except that this was the reason I noticed it, the article was a review of two books, of which one was by me.) Rather than recount the issue again, I’ll merely point you to relevant posts that Clark demanded be excised, here and here, and which – because they were factually true and fair comment on a matter of public interest - I declined to remove let alone apologise for. (Looking back with complacence through his numerous emails, I am reminded that Clark also demanded fruitlessly that I pay him damages.)
The outcome was an anticlimax to the threats, which were themselves issued with unfrightening incompetence. (Clark had a perplexing habit of prefacing his legal threats with the words "WITHOUT PREJUDICE" – which of course they weren’t, by definition.) My lawyers drew to the attention of the presiding judge that the action was an abuse of process and a waste of court time, and the judge struck out the claim.
I recount this episode because, though I was a blogging defendant rather than a blogging plaintiff, it is relevant to India Knight's question. When I received threats of legal action, and being certain of my facts, I resolved to stand my ground and consulted two leading libel lawyers. It was obvious to me that I had acted completely properly as a commentator on matters of public interest; it was also obvious to me that, in defending myself against a claim devoid of merit, I would be unlikely even to cover my costs.
That position, in reverse, seems to me the likely state of affairs with the blogosphere. Nobody yet knows how defamation laws will affect the blogosphere, but I suspect they will have minimal constraining effect for the simple reason that the costs for a public figure of pursuing action against a blogger will normally outweigh any conceivable benefit. That may be no bad thing. I am no defender of the libel laws in England, which I consider unreasonably biased towards the claimant. (See for example this spirited call in Spiked - a publication I normally have no time for - for the repeal of libel laws. I don't go all the way with it, but the broad argument about the "ransom factor" in libel cases is surely right.)
But not every accusation against a public figure ought to be allowed to stand: I consider ITN was justified in suing Spiked's predecessor publication, LM magazine, when it libelled honest reporters who were covering the Bosnian war. I predict that, in India Knight's alternative scenarios for the blogosphere, much the more likely one will be wilder and wilder allegations - of which we saw a hint in the disastrous Newsnight performance of the pseudonymous blogger Guido Fawkes in debate with Michael White of The Guardian. I see no effective recourse against this, and suspect that any attempted remedy will do more harm than good: regulations about speech usually do. But to the extent that the blogosphere influences public discourse, there is an additional cost to be placed alongside the others I have written about.
