Libel law and the digital age

This story, published on the day of Tony Blair's announcement of resignation, was easy to miss but is important:

The legal battle between the parenting website mumsnet.com and the author Gina Ford ended yesterday when the website apologised for offensive comments about her posted on its bulletin board and contributed to her costs. In an out of court settlement, Ms Ford, famed for the routine-driven childcare advice outlined in the Contented Little Baby book, dropped her action against the site, which had barred discussion of her books and methods during the dispute.

That ban has now been lifted, but the site's users have been warned they must not make personal attacks. Among the postings prompting Ms Ford to take legal action was one sarcastically accusing her of "strapping babies to rockets and firing them into South Lebanon". The nine-month dispute, which could have seen mumsnet being forced to pay Ms Ford a six-figure sum had it gone to the high court, exposed the inadequacy of libel laws in the age of the internet, according to the website's founder, Justine Roberts.

Internet libel law is the only policy issue on which I can be reasonably confident of having greater experience – not expertise - than any of my readers. I consequently have views on this subject, and much sympathy with Justine Roberts's point. First, I'll recap my own experience.

Since I started this blog four years ago I have been threatened with libel proceedings three times. With due diffidence, I have to tell my readers that the scoreline is three-nil to me. In each case I declined to withdraw the comments I had made that had generated the complaint, and retained the services of a leading libel lawyer to advise and represent me. In two of those cases, a terse letter from my lawyers was enough to terminate the correspondence.

In the other case, the complainant was less prudent, and I consequently felt under no obligation of politeness to refrain from reporting the episode. He was an eccentric figure called Neil Clark, a blogger who expresses the hope that Iran acquires nuclear weapons and who maintains that Slobodan Milosevic was murdered by something called the New World Order. Clark used also to retail a particular factoid of Serb-nationalist propaganda concerning the late Bosnian President Alija Izetbegovic. When I noticed Clark repeating it in, of all places, The Daily Telegraph (irrelevantly, in a review of a book by me), I traced his source and found that he had misrepresented it to his editor. It turned out to be an obscure organisation that denies that 7,000 Bosnian Muslims – or even that 1,000 Bosnian Muslims – were massacred at Srebrenica. Clark had apparently confused this group with the world’s leading NGO in security policy, the International Institute for Strategic Studies. Even though he didn’t deny my identification of his source or that he had given false information to the newspaper, Clark sent me numerous threats of legal action if I didn’t delete my findings from this site, apologise and pay him damages. I explained that, as my comments were true, I would not be doing as he required. A purported writ was eventually issued by Clark personally, with high ineptitude, in a small-claims court that did not have jurisdiction to hear the case; it was immediately struck out by the judge after my lawyers pointed out it was an abuse of process and a waste of court time. After much thought, I decided not to pursue Clark for my costs; it was a pathetic rather than a scandalous case, and the man has surely suffered enough.

The point of recounting my experience is this. I generally consider the libel laws, at least in England, are unfairly weighted towards the plaintiff. I was able to defend myself successfully – with inconvenience and at non-trivial expense - because, being the sole author of the comments in question, I was certain of my facts and capable of demonstrating them. This was not the case with the mumsnet.com web site, which faced legal action by Gina Ford because of comments on the site’s talk board that the site had actually taken down after receiving the complaint. I understand the quandary of the web site’s founder, Justine Roberts. Ms Roberts argued last week on The Guardian’s “Comment is Free” site that “libel law has not caught up with the digital age”. She says:

[I]f an aggrieved person complains about a posting, we'll take it down as soon as it is brought to our attention. Yet in truth there is no real case law that supports this rule. You could take down a defamatory comment and still be liable, because people would have seen it and the complainant's reputation would have been damaged.

In any case, notice and takedown is a pretty poor defence of the principle of free speech since, in practice, sites such as Mumsnet, confronted with a huge volume of daily postings and a defamation law which is open to interpretation, will always remove comments that are complained about, without much regard to their legitimacy. The result is that freedom of expression is being severely curtailed.

Now, I am sceptical of the Web as a vehicle for the exchange of ideas and the dissemination of knowledge. But scepticism of a particular medium is irrelevant to the substantive issue of how freedom of speech is governed. Ms Roberts seems to me to have raised and astutely summarised worrying issues. Why should the publisher of a bulletin board be liable for the content of comments that it cannot check? What is the restraint on free speech of holding a publisher liable for posters’ comments? And what is the extent of a publisher's liability even where it acts entirely in accord with a complaint whether justified or not? It’s a mess, and there is an urgent need for the reform of libel law in the digital age. I shall endeavour to argue for that reform with whatever opportunities are open to me.