Blogging and libel redux

There was an odd and confused article in the New Statesman last week by Becky Hogge, who is billed as "Executive Director of the Open Rights Group, a grassroots digital civil liberties campaigning organisation". The article seemed to be arguing that the medium of blogging had already made incursions against the privileged position of traditional media, but that at the same time it faced unfair constraints:

Laws and their associated procedures that moderate freedom of expression - libel, intellectual property and, to a lesser extent, decency and hate-speech laws - are too punitive for individuals who lack the ready access to legal expertise of a newspaper or broadcaster. Worse still, online, compliance with these laws is maintained by disinterested internet service providers, and not editors and publishers.

This is badly written (I don't know what the word "disinterested" is doing there), but if it means what I think it means - that bloggers are penalised in their navigation of the law compared with commerical interests - then it's largely mistaken. Take the one area Ms Hogge describes that I have personal experience of and am particularly interested in. I'm no admirer of English libel law, which is too onerous for defendants, but there need to be laws on defamation, and I don't consider the main problem with the law as it stands is that it favours large corporations as against individual bloggers. On the contrary, the advent of Conditional Fee Arrangements (CFAs) in libel cases frequently puts newspapers and broadcasters in an invidious position. Note, for example, the views expressed in this recent Guardian report:

Chief among the critics is Alastair Brett, the legal manager of Times Newspapers. "The chilling effect isn't felt pre-publication but at the moment you receive a claim for libel, stating that the claimant is represented on a CFA," says Brett. "There is undoubtedly a real chill when contemplating the huge cost of CFA litigation and it is a very brave editor who fights on in this worst of all Catch 22 situations."

Under a CFA, if a claimant lawyer loses a claim, he does not get paid, but if he wins, he is paid a bonus, known as a "success fee" or "uplift" on his costs. Success fees are tied to the level of risk - to the lawyer - in bringing the claim; the greater the risk, the bigger the success fee. It all adds up to a system in which a London lawyer charging £400 per hour can double his or her money. To contemplate such a vast potential costs exposure is not merely "grotesque" but, says Brett, it is also "inherently unfair and a clear breach of a defendant's right to a fair trial without penalty under Article 6 of the European Convention on Human Rights".

His is not a voice in the wilderness. Louise Hayman, head of legal services for the Independent, puts it thus: "It's not uncommon to hear of claims against the media made on a CFA basis where the damages might be £5,000 and the costs £90,000. "You have to ask yourself - is this right? Are the lawyers serving their own interests or those of their clients?"

These observations are entirely justified. Faced with a CFA-funded claim, there is an incentive on newspapers to settle even when they are confident of their case, because they will have great difficulty in covering their costs. That is a challenge to a free press.

Bloggers might easily in principle face libel actions, and it is notable (at least it is to me, when I read blogs) how much material is published in the "blogosphere" that I know would be impossible to defend in court. But bloggers generally aren't sued, partly because blogs are not widely read and partly because a claimant is unlikely to cover his costs. But there will surely come a case at some point where a blogger is successfully sued. The only advice I can proffer, if you are a blogger, is that if your statements about a point of fact have justification (i.e. are true and can be shown to be true) then you can't be intimidated out of saying them.

(The cases I've experienced of legal threats have all taken that form, and I've chosen in each of them to be represented by a leading libel lawyer in order to convey a message to the prospective claimants that I will not back down. Only one of those claimants, the pro-Milosevic blogger Neil Clark, unwisely failed to get that message. Last year he purported to issue a "writ" - of startling ineptitude, in a small-claims court without even jurisdiction to hear the case - against me for comments about his competence and veracity whose accuracy he did not dispute but which he wished, unavailingly, to be removed from this site. I've indicated that I will publish the correspondence concerning that purported claim, and I will do so; it's just that there are a lot of Mr Clark's threatening messages from that time, and I always seem to have more pressing business than to disinter them. In any event, Mr Clark's tone neatly reversed itself - from bluster to whimper, as it were - when he received a terse communication from my lawyer pointing out that the purported writ was an abuse of the legal process, and mercifully Mr Clark ceased to write to me altogether once his "writ" had been struck out by the presiding judge.)

Where Ms Hogge is right is that the law as it stands creates an incentive for ISPs to delete comments from their sites as soon as they receive a complaint. This certainly is a threat to free speech on the Web. An ISP is not in a position to distinguish fair comment from defamatory comment, and will therefore act prudently in removing anything it receives a complaint about. That is the issue at stake in threats made to the former diplomat Craig Murray for comments on his blog, and is the reason I support Mr Murray in this case.

That important but distinct issue about bloggers and libel law is the one that worries me. One day, probably soon, some of the obviously defamatory material that gets published on blogs will be tested in court, by a claimant for whom reputation is more important than the pragmatic arguments for not responding. That in itself is not a libertarian issue. If there is a case for a law on defamation, then it must apply to blogs as it does to newspapers, and it is not necessarily true that defending a case is more punitive for bloggers than it is for newspapers. The proper grounds for concern about blogs and libel, in England at least, is that bulletin boards and blogs can be shut down on self-interested but entirely rational grounds by an ISP at the merest hint of a complaint. That thoroughly illiberal position is a threat to free speech and must be tackled.