Home » Posts tagged 'defamation'
Tag Archives: defamation
Avoiding defamation on the information superhighway
This is an academic article, and not to be construed as legal advice or opinion in any way. If you have a specific concern, you are advised to seek the help of a practising solicitor.
You can be even sued on Twitter for Libel. The recent experience of Lord McAlpine is a testament to this:
That you can end up in Court through Twitter is known to followers of the “Twitter Joke Trial”, successfully fought by David Allen Green (Preiskel & Co.), John Cooper QC (25 Bedford Row), and Sarah Przybylska (2 Hare Court) in the presence of Lord Chief Justice Lord Judge. This example is cited here only to illustrate how anxiety-provoking litigation can surround Twitter. The case itself was not about libel – it was about allegations of “menacing behaviour”, as per s. 127(1) of the Communications Act 2003.
The public has a right to criticise the people who govern them, so the least protection from defamation is given to public officials. Other people, with the resources, can of course sue you, but they have to prove that defamatory statements were made with actual malice, in most cases.
This excellent guide for Twitter users, regarding libel, has been published recently on the BBC website. Using the social media has become a ‘risk factor’ for attracting a claim in defamation, for the unwary, in the same way a cabbie may be, in theory, more likely to produce a driving offence simply by nature of the fact she or she is doing a lot of driving. This for example comes from the MoJ’s own guidance to the draft Defamation Bill:
Sim v Stretch [1936] 2 All ER 1237 provides the classic common law definition in English law:
“A statement which tends to lower the claimant in the estimation of right thinking members of society generally, and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem”. (Lord Atkin)
Article 10(1) ECHR states:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
But Article 10(2) ECHR states that:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary”.
“Defamation” is a catch-all term for any statement that hurts someone’s reputation. Written defamation is called “libel,” and spoken defamation is called “slander.” Defamation is not a crime, but it is a “tort” (a civil wrong, rather than a criminal wrong). A person who has been defamed can sue the person who did the defaming.
Defamation law tries to balance competing interests in keeping with the very important legal doctrine of proportionality: on the one hand, people should not ruin others’ lives by telling lies about them; but on the other hand, people should be able to speak freely without fear of litigation over every insult, disagreement, or mistake. Political and social disagreement is important in a free society, and we obviously do not all share the same opinions or beliefs. For example, I do not believe in important European and US competition and procurement laws voluntarily in governing the decisions of commissioning groups in the NHS unless we have to, and I am entitled to my opinion within reason.
The rule of the Jury is to establish the standard of ‘right-thinking members of society’, and to decide whether the claimant was defamed.
What the victim must prove to establish that defamation occurred
The law of defamation varies from state to state, but there are some generally accepted rules. If you believe you are have been “defamed,” to prove it you usually have to show there’s been a statement that is all of the following:
- statement
- published
- false
- injurious
- unprivileged
This is a MUST READ guide to defamation on Twitter by Dr Paul Bernal, who is a young leading academic in this area and Lecturer in IT, IP and Media Law at UEA.
Whilst this article has focused on Twitter, the general principles of defamation apply to all media, including blogs.
Thanks to Dr Paul Bernal for a helpful suggestion about an earlier draft of this blogpost.
History repeating itself?
Sort of, except the Liberal Democrats haven’t been in so much trouble yet.
It will be interesting to see how chief political invertebrate will manage to worm itself out of this mess. Meanwhile, the blogosphere has hotted up. Offshore tycoon Guido Fawkes knows he’s on much firmer ground than his (much nobler) colleague Iain Dale. Firstly, it is now not considered defamatory to call somebody homosexual, therefore making a false statement about someone’s sexuality may not be an issue. Guido will be on rockier ground (or at least his server might) if he is accused of inciting his audience to homophobic remarks, however please note that it would be exceptionally hard to prove that Guido had intended to do this as part of his ‘mens rea’ in committing any offence under law.
I suspect the latter of these two stories will die. The first one will be hot at least until it happens, as the Twitter communication between @ollygrender and @gabyhinsliff alluded to earlier.
Somebody sharing a twin room in a busy campaigning schedule, is not particularly exciting, guys.
Nor is this..?
Serious letter from Shibley Rahman to Sir Michael Lyons 12/7/10 BBC Trust (from which no reply)
Dr. Shibley Rahman
[address]
Sir Michael Lyons, 12th July 2010
Chairman of the BBC Trust,
180 Great Portland Street,
London.
W1W 5QZ
Dear Sir,
URGENT AND CONFIDENTIAL
I know that you must be incredibly busy, and it is a honour and privilege for me to write to you. I suspect that you will know nothing of my case yet, which has been going for 8 months nearly.
To serve as background, I am copying you a copy of a letter which I am sending to Fran O’Brien, BBC Head of Editorial Standards, today. The purpose of this present letter is that I should like you very much to bear witness to how my complaint has been managed thus far by BBC Complaints, and for you to consider what lessons – if any – that can learnt from this incident. In a nutshell, the BBC reported my regulatory case with the GMC in a highly inaccurate way across three online news stories within a space of about a week in 2006, claiming I was working at the Brompton at the time (inter alia), when the case involved me as a doctor with a severe alcohol problem. These stories should never have been classified in the ‘Entertainment’ section, but actually this label reflects rather well the ‘gutter-press’ style and content of the articles. They gave the impression that this was a stalking case (this case was nothing to do with stalking) and failed to allude to the substantial alcohol problems which had made it impossible for me to continue my professional career in medicine. Although medicine constitutes over a decade of my life that I have no wish to return to, I feel that the BBC should have some degree of human compassion for me: a human, now disabled human-being (due to a coma in 2007 due to meningitis), who has given up alcohol for four years, and who is trying desperately hard to rebuild his place in society.
The upshot is that I would like three online news stories from 2006 to be removed, because I have proven that they offend the BBC’s editorial guidelines on accuracy, balance and/or impartiality. I simply do not understand why [NAME REDACTED] fails to understand the basic issue involved that (a) I have never been a stalker, (b) I have a Police National Computer check which proves this. The BBC running these stories so many years down the line is very damaging to me both professionally and personally (they are instantly Google-able). I (and senior lawyers) feel that they are indeed defamatory, but I see no reason why the BBC cannot remove them after having admitted their faults as regards their own Charter and editorial policy.
My hearing has been scheduled for 21st July 2010. Finally, I should explain that the purpose of my letter is to explain to the Chairman of the BBC Trust fully the hurt that I have experienced over this protracted complaint, and just in case Fran O’Brien is unable to bring this to the meeting due to any summer vacation. This does matter a huge amount to me. I have opened up this can of worms, as I can tolerate such abusive behaviour from the BBC any longer.
I am still deeply disturbed that anyone reading these three ‘entertainment’ stories will come away with the idea that I was a nuisance stalker (not true), rather than a very sick doctor with alcoholism who needed to help and who needed to be removed from the register (true). This should have been priority for any decent journalist covering the story legitimately.
I clearly feel that the articles are in stark contrast with the professionalism that the BBC is supposed to stand up for, and I would like the BBC Trust to give this careful thought. In particular, I should like the BBC to consider how it can liaise with the Law Society or the General Medical Council to cover their cases in such a way it cannot prejudice the hearings.
I take solace, in fact, from the fact that [NAME REDACTED], Legal Advisor to the BBC, feels that my complaint is not legal, in that I feel that resolution by the BBC Trust is entirely appropriate.
I will always abide by what you judgment the BBC Trust provides, but I hope that the Trust can consider my distress sympathetically. Finally, I will always be proud of the BBC.
Yours sincerely
Dr Shibley Rahman (mobile [redacted])
E-mail: management@lawandmedicine.co.uk
Queen’s Scholar
BA(1st) MA MB BChir PhD (all Cambridge) MRCP(UK)
LLB(Hons.) FRSA MSB
Master of Law student at the College of Law of England and Wales
Associate Member of the Institute of Directors
Company Director of Law and Medicine Limited
I have now decided who to vote for
There is no doubt in my mind who I’m going to vote for for the next Labour leader, with a view to him becoming Prime Minister of the UK eventually. I have thought about the options extremely carefully after several weeks and I am now very happy with my decision, although it hasn’t be easy.
This may surprise many of you but I will be voting for Andy Burnham no. 1 and Ed Balls no.2
In reaching my discussion, I have completely ignored the following dimensions:
black vs white
male vs female
nu Labour vs Labour
Oxbridge vs not
Blairite vs Brownite
I found these dichotomies extremely unhelpful.
I have also stopped worrying about what the unions think or what Middle England think. I frankly don’t care who they think is the best person to win the election. I don’t want a person to win the election with the wrong policies with the excuse he can ‘work on them’ later.
I also decided to ditch the “What if?” scenarios, such as D Miliband becomes Prime Minister and he wishes to have Jon Cruddas. Such scenarios are unpredictable : take the case of Jon Cruddas. i would actually be extremely delighted if he became Chairman of my party.
The next five years will not so much be concerned with the effects of the cuts, in my opinion, as the destruction of the infrastructure, especially schools and health. However, Labour must acknowledge the attacks on the weakest in society, including the poorest and disabled, and the potential U-turns on education. I take it as given that the anti-Keynesian approach is wrong, and that tax increases for a country that is deleveraging is totally incorrect. I think we need a leader with a proven record in domestic policy issues such as health or education, but who does have a vision for aspirational socialism.
I particularly identify with Andy Burnham because of his recognition of the ageing population and the future problem of dementia, as well as his in depth understanding of the NHS. This is going to be absolutely crucial in the next five years as the Conservative Party denationalise it with introduction of a sufficient number of private elements to make it viable as a commercial competitive identity, not abuse any dominant position in competition law, and make it ideally fit for privatisation. Furthermore, I fully support Andy Burnham in his demand that online media should be regulated. As it happens I believe in free speech and freedom of expression, but I strongly disagree with defamation and incitement to hatred. I feel that the BBC has not demonstrated a sufficient level of public service in this regard, which calls the renewal of its Charter into genuine question. Finally, I support Andy Burnham in his quest to understand the relationship between mental illness and criminal justice system. I happen to know a lot about these two disciplines, and I have found Andy’s words on these topics articulate and sophisticated.
Ed Balls MP impresses me a lot too, as he has put up a passionate argument against Michael Gove’s incompetent handling of school closures, and the untried efficacy of free schools imported from Sweden. David Miliband MP has been deeply unimpressive in hustings I have attended or friends have attended, giving a pale, unimpressive and uninspiring account of issues. I don’t think Labour is as popular as the Tories anyway on foreign policy, and I feel Labour should not play to its weaknesses at this particular time, when a lot of foreign policy issues are coming home to roost, such as Meghari/Blair/BP, alleged torture, the Iraq War, which sadly did occur under David Miliband’s watch. Ed Miliband, while perfectly innocuous, does not have enough depth of understanding in health or education (or a major office of state) to go straight in there at the deep end.
Good luck to all of them however!
