Dealing with libel threats II

The International Herald Tribune reported last week on the dispiritingly topical issue of libel threats against bloggers. The report refers specifically to the threats made recently against Craig Murray, the blogger and former ambassador to Uzbekistan:

The daily Web log, or blog, of the former U.K. ambassador to Uzbekistan, Craig Murray, vanished after Murray's British Internet provider received a flurry of ominous legal letters demanding the removal of "potentially defamatory" information about Alisher Usmanov, a mining mogul with a rising stake in the English soccer club Arsenal.

Two weeks later, Murray is not blogging, but his blistering opinions are about to surface again through a Dutch Internet provider that offers refuge to controversial bloggers in the United States and in England, where libel laws are more lax. And with that journey, Murray has stirred support and a common outrage among bloggers and Internet service providers who complain that chilling demands from companies are becoming more frequent in a number of countries.

I wrote a post on this case last month. I accept that laws against defamation are a necessary part of public discourse, and bloggers should be aware that those laws apply to blogs as they do to other media. But Mr Murray certainly has my support in this case. It is disturbing that a threat addressed to Mr Murray's internet service provider - without the claim's having been tested in court - should shut down his blog. It is outrageous that that ban should have been extended to other blogs that have nothing to do with Usmanov's complaint. The ISP is not at fault here, but is acting rationally given that it can be held liable for not responding in a timely manner to a complaint. The problem is, of course, that the ISP has no way of discriminating between a justified and a frivolous complaint: it will just take the material down to be on the safe side. The problem lies with the precedent set earlier this year in the Mumsnet libel case, which I wrote about here. I said then:

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.

The issue has inevitably arisen, and quickly, in the case not of a bulletin board such as Mumsnet's but an ISP. Reform of the law is urgent. You will find later in the Herald Tribune report a comment by the blogger Tim Ireland making the same plea but on different grounds:

"The threat is and always has been money," Ireland said. "Might makes rights. We have to take away at least one aspect in U.K. libel law that gives an unfair advantage to people who are cashed up."

I share Tim's anxiety but disagree with his reasoning. First, in my view the problem is not a general one about English libel law but a particular one about a case (the Mumsnet settlement) that has set an appalling precedent. Secondly, while English libel law is known to be more onerous for a defendant than similar laws in other jurisdictions, bloggers should not overestimate the restrictions they're under. You can say a great deal. I mentioned in a post earlier this month that, while my own experience of the Internet and defamation law is in no way comparable to the threats being made against Mr Murray, it might be useful to bloggers to have a fuller account of the case than I have so far given. Just to recap; this was my reasoning:

I stress again that the "writ" issued in my case was characterised by extreme incompetence and resulted in pure failure on the part of the complainant, the pro-Milosevic blogger Neil Clark, and it shouldn't be taken as precedent for the threats now being made to bloggers. I merely record how I have gone about defending myself - and, not to overstate the case, the principles of free speech and fair comment on matters of public interest - against admittedly unintimidating and worthless threats of legal action, in the hope that the account may prove interesting to other bloggers. Libel threats against bloggers are highly likely to be an issue that will arise in some other, less farcical, form in future.

I intend to publish the complete correspondence relating to Mr Clark's purported writ. Be prepared, however, that Mr Clark's blizzard of threatening emails to me at the beginning of 2006 - before his purported claim was peremptorily struck out by the presiding judge, on application from my lawyers, in a small-claims court that didn't even have jurisdiction to hear the case - is highly repetitive. This is because Mr Clark was wont to threaten me with terrible consequences if I didn't do what he demanded (i.e. remove material from this site, apologise to him and pay him damages) by a certain deadline; whereupon I would write to him explaining why I would do none of those things, the deadline would pass and he would write again in the same terms but setting a new deadline. As I declined to remove posts that I knew I could defend on grounds of, respectively, fair comment and justification - i.e. my remarks about Mr Clark's misrepresentation of source material were true and I could prove them - there was nothing Mr Clark could do about it.

(Mr Clark did in fact do something about it, indirectly, after I had revealed on this blog the failure of his claim, but it's not a course I would recommend. Sad to relate, he invented female sock puppets so that he could post laudatory comments about himself on third party websites and pretend they were from independent parties. My friend Stephen Pollard has the full grim story. Don't miss the comments, in which Mr Clark's accomplice cheerfully owns up to the imposture, or the link to a commendably tough-minded Wikipedia administrator exposing Mr Clark's conduct and banning him from the site. There is a notable reversal in Mr Clark's tone when he realises the game's up.)

I accept entirely that most legal threats against bloggers - in fact, almost any conceivable such threat - will be of a more serious character than this. Bloggers must be aware that the laws of libel apply to them, and of the requirements of fair comment and justification. But those criteria are quite broad. They certainly encompassed my defence against Mr Clark's complaints; indeed it was obvious that Mr Clark's objection was not to libel in any conventional sense of the term but merely to remarks that he wanted suppressed. That made it an issue of free speech, on which I am stubborn. In any event, that's my experience, and those are my observations. I hope they are of some interest.