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UK Libel Law Is a Global Threat To Web Free Speech
uctpjac writes "London media lawyer Emily MacManus argues that UK libel law has three features which make it the 'defamation tourism' capital of the world and a serious threat to Web free speech. First, there is no free speech presumption in the UK as there is, for example, in the US. Second, every access of a Web page is considered to be a separate act of publication in the UK (unlike the US, where 'original publication' holds). Third, 'no-win-no-fee' libel litigation is now allowed in the UK. If any blog, anywhere, publishes something you'd like taken down, threaten libel action in the UK: no one except the super-rich can afford to even take these cases to court, so media lawyers advise publishers to 'take it down, take it down quickly, take it down again.' There's not much chance that the judges will move the law any time soon because they just aren't seeing the cases that could cause them to set new precedent."
But the 'no-win-no-fee' will make it a no-cost low-effort to suppress unwanted speech. There is a big difference between libel and things you do not want to hear.
Please elaborate, because I fail to see the point.
If you mean it should be given to another, separate, international entity, you are absolutely right. But I get the feeling that you'd rather maintain the status quo, and I can't see how that would help in matters like these...
Free beer is never free as in speech. Free speech is always free as in beer.
Doesn't matter. Due to the legal blockades in the UK, if you label ANYTHING you don't like as defamation, it must realistically be taken down. You might think you have the freedom to criticize your local government and their policies, but all they have to do is claim that your criticisms are libelous and you are in a world of hurt if you refuse to back down. The same applies to a church, say of Scientology. Or any other ridiculous way that those in power would like to keep down the voice and will of the people. Another tragedy of free will from the UK. I hope America learns from its mistakes before it's too late.
Sooooo, what does this mean to a citizen of another country (say the United States) who has no assets in GB? Are they able to reach out and touch you?
That is, provided the page in question actually is libelous. If I had a web page on, say, UK Prime minister Gordon Brown, and wrote something true about him that he did not like, a libel claim could make my provider take it down. That *is* bad for free speech.
The truth may be out there, but lies are inside your head
I'm not a British citizen. I have no assets in the UK anybody could seize.
Why should I care if you sue me in a UK court? You could get a court order entitling you to a million pound. How would you collect? Ask me to send you a cheque from the US?
-- Support a free market in the field of government
So, in summary, UK law prevents a poster from making libelous claims on the web. I didn't think the right to free speech came with the right to defame; even in the US.
You might think that, you [insert crazy libel here]. But think it through.
In the US, you have an absolute right to state your honest opinion, or your honestly believed facts. So, if I believed that, oh, the local priest molested little boys, I could stand out and say that without being sued. If I thought he'd molested a friend of mine, I could picket in front of his house, until the police finally came and did something about it.
But in the UK?
As soon as I started picketing, I could be charged with slander*. (Or libel, if I did so through publication.) The church would take me to court, where I would have to prove my claims. If I can't -- because, for example, my friend isn't allowed to testify -- then I could lose my car, house, and the $20 in my pocket.
The bad part that the summary went into -- the really, REALLY bad part -- is that if I put up a website in the USA, talking about how a priest in Mexico molests children, that priest can go to the United Kingdom and sue me there.
And there's no way in hell I can afford to fly to the UK just to defend the rights my forefathers fought to give me. Nor should I.
Yup. Giving DNS control to any body outside of the USA would be FAIL. The only country I trust to keep DNS poison free is the USA. Let's face it, the only place in the world where /everyone/ has a voice on such matters is the USA.
(OK, OK, you might argue that the communists and fascists don't have a voice, but they are the ones that want to censor, thereby eliminating other voices.)
I am pretty sure a UK libel judgement against foreign citizens and servers cannot be enforced. A UK judgement cannot be enforced against servers located in the United States. That would be an abrogation of the rights of the United States to be the sole police of its citizenry. Imagine a world where foreign judgements are enforceable: courts in Nigeria would be issuing summons to Bill Gates for millions of dollars!
A NYC lawyer blogs. http://www.chuangblog.com/
Unfortunately USA will learn that it works and implement those laws too.
Extreme Programming - Redundant Array of Inexpensive Developers
*thinks back to all the times UK posters have bitched and moaned about "rights", not visiting the US, etc*
Always found it amusing in the first place given they've gone completely fucking bonkers with speed cameras, CCTV, "anti social behavior" laws, and of course the UK has much of the same anti-terror bullshit. Meanwhile, Cambridge (mass) just rejected cameras that were going to be installed by Homeland Insecurity over privacy issues. The backlash is gaining; in the UK, it never started.
Our politicians seem to be trying desperately to go the way of England with taxes, but the decision to split from England ~230 years ago appears to have been an excellent one nonetheless.
Please help metamoderate.
Why not just give a `right of reply' and be done with it?
Unless by "right of reply", you mean the existing free speech rights that everyone already has, I'd rather have libel suits than some "right of reply".
Any reasonable enactment of "right of reply" will include provisions which make it mandatory to publish the reply in the same forum where the defamatory statement was originally made. That means if I ever make a statement on my website considered defamatory by anyone, then, by law, I would have to print, on my own website, at my own cost, a statement which would directly contradict what I said and which I would most likely not agree with.
Free speech doesn't mean anyone can put any sign they want on my lawn. Free speech simply means I can put whatever sign I want on my lawn (save for obscenity laws and local codes), and maybe public places, where such posting is allowed.
So, I would rather have libel suits, which I just need to fight off once, rather than "right of reply", which would be more insidious and annoying than libel suits.
I have no idea what the submitter is referring to when he claims that the UK lacks a right to free speech. The article itself makes no such claim, although it does go on to raise other issues that are less easy to argue with.
As a result of the Human Rights Act 1998, any body acting in a public manner, not just in a vertical (governmental) relationship as in the US Bill of Rights, is required to act in accordance with ECHR articles. Article 10 guarantees a right to freedom of expression, limited only in accordance with law, and only where such laws are found to be necessary for a functioning democratic society. As another commenter points out above, neither this, nor the US's first amendment, are apt to shield defamers from litigation.
On another note, I don't appreciate the UK being referred to as a whole in this matter, we in Scotland have a distinct legal system and this is more relevant in regard to defamation than in almost any other area.
If you take issue with our defamation law, that's something you need to raise with the EU, where most of our modern development in this regard, especially electronic correspondence, comes from. However, it's irresponsible and misleading to imply that we lack basic respect for a right to free speech.
I_A_AL, he clearly isn't.
Judges and Appeal judges are starting to get it. In the mean time, make sure you post your opinions of bankers and politicians through a suitable proxy onto US servers.
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
if someone is mature enough at 15 to commit a crime in the mind-set of an adult, why shouldn't they face adult consequences?
Because we wanted to pick a hard number that can be applied to everyone, without having to give a fuzzy profile to every criminal.
We picked 18. At 18 you can vote, you can marry, and you are liable for the entirety of your own actions. We could have picked 16, or 25, or 30, but we picked 18.
Oh, and punnishment IS based on mind-set and maturity. Even if you're a minor, you can be tried as an adult for especially henious crimes. And if you're over 18 and mentally undeveloped, well, then you're essentially treated like a child.
You might think that, you [insert crazy libel here]. But think it through.
In the US, you have an absolute right to state your honest opinion, or your honestly believed facts. So, if I believed that, oh, the local priest molested little boys, I could stand out and say that without being sued. *snip*
Unfortunately with how the civil court system works that is not 100% true, as you can be sued by anyone for almost anything, at any time.
The question will be if can you afford to fight to prove you are right or will you be forced to roll over?
---- Booth was a patriot ----
I only did a quick scan of the article, but it sounds like the author is blaming only some recent developments in UK law, but not the underlying system of UK law.
The basic thing that's wrong with UK libel law is that the burden of proof is on the defendant. The defendant must prove that the published article isn't libelous, whereas in the US the prosecution must prove that the article is libelous. In the UK the defamatory article is assumed to be wrong unless the defendant proves it true, whereas in the US the article is assumed to be true unless the prosecution proves it false. And then the US prosecutor would have to prove that it was maliciously false, that the defendant knew it to be false. Welcome to Soviet Britain, where defendant is guilty until proven innocent!
UK law in libel was designed to protect the powerful against 'false' accusations in the press, where US law was designed to protect the press in publishing accusations. See John Peter Zenger
Every country has its flaws, and every country has its braggers. The UK is no exception.
Agreed.
Now I know Ive posted this before, but there are just so many instances of this nonsense, that I feel it needs to be repeated at every opportunity.
A local company, Caton Commercial, decided to send a threatening letter in an attempt to prevent the publication of the public court schedule of their pending cases. Claims of libel were made, along with copyright, trademark, and CRIMINAL charges. You can read the poorly thought out Cease and Desist Letter here.
It did not seem to matter to them that the ACTUAL COURT was publishing this info that was being linked to. I did not back down, or respond in any way to their threats. Ive never heard another word about it from this company, or their lawyer. It seems that having such asinine claims and accusations published for the world to see, is the best way to respond to such ignorant claims of the self-important.
And while it was not a once in a lifetime experience(although hearing a lawyer try to argue that the courts own publicly published information was libel would have been), it also did NOT leave me in a world of hurt for not backing down. In fact quite the opposite, it gave me a feeling of great confidence that the things that are important to me are worth fighting for, and that I have the integrity to stick to what I believe with my actions, as well as my words.
Needless to say, the actual cowards are the ones who send out letters like this.
I think giving more control of the Internet to a country that in the last decade has suspended habeas corpus, wiretapped the conversations of its own citizens without warrant, proclaimed that the protections of liberty enshrined in its founding document apply only to its own citizens (and what does it matter since it's "just a goddamned piece of paper" anyway), created a copyright law that is incompatible with the principles of Fair User and the Public Domain, created another law that makes it illegal for you to know or reveal that you are under suspicion of violating it, started teaching Intelligent Design in "science class" in a lot of places, went abso-fucking-lutely ballistic because some chick flashed a nipple at the Superbowl for chrissakes and doesn't seem all that interested in things like net neutrality, open standards and document formats and the freedom of individuals to do as they please with their own properety, would be an EPIC fail.
Give control of the DNS to the people at Wikileaks, or Groklaw, or NYCL. Give it to the Pirate Bay, I don't care.
But do not give it to the US, the UK, Australia would probably be bad, even Canada is getting sketchy ...
No surprise there.
"Liberals" seek government surveilence to "protect" people from themselves. "Conservatives" seek government surveilence to "protect" people from terrorists.
"Libertarians" seek citizen surveilence to protect people from their government.
Say what you will about the "craziness" of this or that Libertarian idea... they correctly understand that no matter who's in power, they're always trying to screw you.
FanFictionRecs.net
Actually, in the UK, truth is a strict defense against libel. Holocaust Denier David Irving sued Deborah Lipstadt over the UK edition of her book, Denying the Holocaust, in which she called Irving
Irving lost after a trial in which his scholarship on the Holocaust was shown to be fraudulent and he was demonstrated to be a bigot.
http://en.wikipedia.org/wiki/David_Irving#Libel_suit
In the U.S., truth is not a strict defense against libel:
Your belief above that honestly believing something is sufficient, is not strictly true: It depends upon the jurisdiction you're in.
Anyone who loves or hates any language, platform, or manufacturer, doesn't know what they're talking about.
Because Texas has a different standard for "mentally retarded" than the rest of the USA.
Aide-toi, le Ciel t'aidera - Jeanne D'Arc.
Yes, and USians brag and boast about living in a democracy, where everyone has equal chance to be president, and many other imagined "virtues", despite none of those things being true. On the other side of the coin, they'll happily bemoan the corruption and poor human rights in China, or the lack of free speech, whilst being in denial about the very same things happening under their own noses.
The sad fact is that many western citizens consider themselves free and enlightened and free of propaganda, while swallowing propaganda whole on a daily basis.
So, if I believed that, oh, the local priest molested little boys, I could stand out and say that without being sued.
Funny. I was under the impression that, in the good old USA, anybody could sue you for anything and, even if their case got laughed out of court, you'd still have to re-mortgage your home to pay your legal fees - whereas in most of the rest of the world anyone bringing a frivolous lawsuit risks having to pay for the entire cost of the process.
Even no-win-no-fee relies on the lawyers (or their insurance company) seeing a case as a "good risk".
Its probably true that the UK libel laws are worse than the US (freedom of speech is lurking somewhere amongst tradition, Magna Carta and the European Court of Human Rights, but its hard to pin down), but the real problem in this case is that ISPs would rather delete a website accused of defamation/copyright violation/hate speech/supporting terrorism than get embroiled in litigation which, whichever side of the Atlantic you live on, is never a one-way-bet (unless you are a lawyer). The old "how much justice can you afford" problem is not limited to a single country.
In a survey of 100 programmers, 111111 thought that duck-typing was a good idea.
if the UK newspaper industry is any example then it's quite easy to publish bullshit.
The Daily Mail does it quite often and I don't see them getting into trouble.
Mothers against drunk driving is the party that is responsible for that. Before they got the law changed you could drink at 18.
Freedom of speech means allowing those with invalid criticisms to express them.
while i will agree that the post you replied to is snarky, there are throngs of people who will risk life and limb to get into the US (and Canada-i assume into the UK also). how many people are trying to get into China to better their lives? or India-undeniably the largest democracy in the world?
as to your claims of these alleged none existent virtues- what is imagined? could you elaborate on these fairy tales of freedom?
the true beauty of the United States is that you don't know what you can get away with til you try.
"You can kill the revolutionary, but you can't kill the revolution."-- Fred Hampton
I think we in the US did learn from Britain's mistakes. It's called the First Amendment and was written by some then-until-very-recently British subjects who were learning from mistakes made.
If you are an actual lawyer, then can you please explain why you don't do it like the US does, REQUIRE THE PROSECUTION TO PROVE GUILT, NOT REQUIRE THE DEFENDANT TO PROVE INNOCENCE?
Libel and slander require proving the accusation for exactly the same reason that other laws are innocent until proven guilty. If you slander someone, you are bringing an allegation against them. The lawsuit is basically saying 'put up or shut up'. The person bringing the suit is equivalent to the defendant in any other lawsuit; they are defending themselves against allegations that have been made and are innocent until proven guilty. I am not sure why you would want it to be the other way around.
I am TheRaven on Soylent News
Yes, and USians brag and boast about living in a democracy, where everyone has equal chance to be president, and many other imagined "virtues", despite none of those things being true.
I was unaware that the University of Southern Indiana Association of Nursing Students spent so much time bragging about living in a democracy. Oh, you meant Americans how droll you are.
I laughed at the weak who considered themselves good because they lacked claws.
If you behave like a lunatic, odds are you will be treated like a lunatic.
It is not that you made false and/or misleading claims, the way the law is written you can face libel even if your claims are true as a way for the person, organization, or company you are making the claims against files a case against you in the UK and you cannot afford to defend yourself or you cannot prove the claims are true because the person who told you them refuses to fly to the UK to defend you because it costs too much to do so.
It is not innocent until proven guilty, you are considered guilty and have to prove yourself innocent. It can be abused to take away free speech by claiming said speech on the Internet is libel in the UK.
Everywhere else in the world it can be considered the truth, but in the UK it is libel unless you can prove it is true.
Remember, Slashdot does not have a -1 disagree moderation, and no, troll, flamebait, and overrated are not substitutes.
Doesn't matter if they were "combatants" or not - torture is still against the Geneva Convention.
In the immortal words of Eminem: "How much damage can you do with a pen?"
Ultimately Brits are STILL Subjects and not citizens.
They are only allowed to speak in public at the pleasure of the crown (although the Crown tries to exercise restraint)... and that's still legal precedent for many things regarding "individual" rights. Brits have only the rights the Magna Carta and other documents SAY they have... the Crown reserves the right to keep all the others. Versus the US where States and individuals have all the rights unless the government has a good reason to take them away.
- Anything to declare?
- Yeah, don't go to England
You are not "guilty until considered innocent" when you are sued for libel. You are the one who has made serious claims about other people, and the court is now asking you to put up evidence or shut up and compensate your victim. I hardly see how that is automatically a travesty of natural justice.
In any event, reversing the law doesn't really solve your problem - imagine you have been accused of a crime by a UK newspaper that didn't do its research properly and you now have to spend two years salary on a Barrister while "proving" the accusations are false before the court allows your case to proceed.
Don't think it couldn't happen - just last year a large number of London newspapers were successfully sued by a man who they completely falsely insinuated had murdered a small child. The case is still unsolved, so presumably under your preferred rules he would either have had to solve a case half the Portugese police haven't been able to, or just put up with the fact that his life had been ruined so they could sell a few more papers.
Your problems with witnesses refusing to cross the Atlantic are real, but are really just problems with cross-border civil litigation and not really the UK libel rules. It applies just as much if I was to try to sue an American and had to get witnesses to come to the US to testify that the accusations were false.
UK = Deny by default
US = Allow by default
I'm missing a geek security/political parallel there somewhere, though the UK has the correct stance from a security point of view. "Bad for citizens, good for networks"?
Meh, needs dome refining.
Oh, was that my outside voice?
Yea, I know. I just had one of those "Someone on the Internet is wrong!" moments.
Open Source Drum Kit, LPLC deve board - mjhdesigns.com
My only argument to this (as a USian) is that we cost more to bribe/propagandize than those in the other nations, and as a result have a higher quality of life in general. It's not really much of a defense, but it is the truth. We know we are being lied to, we are not blind to the corruption, we simply know that everyone has a price, and for better or for worse, our price leaves us living fairly comfortably. It's sad, it's selfish, but it's the way it is. We are not entirely hypocritical - we criticize the other nations because we want them to pay their citizens better for tolerating their corruption. We're trying to make the world a better place by increasing the cost of running dictatorships and police states such that the subjects of those states are comfortable and happy.
Government is a necessary evil, and corruption is unavoidable (greed is human nature). I hate the fact that we apparently tolerate corruption and propaganda at home (we should be more proactive at spotting it and stamping it out), but no nation can speak from a position of complete perfection. We are still one of the most desirable countries in which to live, so our compromises have worked out well so far - "so far" being a key point. The price of freedom is eternal vigilance, but that might also be the price of happiness. Or perhaps the cost of happiness is eternal compromise. I think our current dissatisfaction comes not so much from the fact that our freedoms have been dramatically eroded recently, but that we haven't received sufficient compensation (in terms of financial or material well being) in exchange for them. The government/big corporations tried to give us all houses and a bull market that wouldn't stop, but that didn't work out so well.
This isn't, of course, the way we all feel. Invariably someone will reply and say that I have completely misrepresented the situation, or that I shouldn't sacrifice my rights at any cost. Idealists exist everywhere, and I appreciate them because without them we'd be in worse shape than we are now. Most people (myself included) are sheep, cattle. It takes a grave and personal injustice for me to stand up for my rights. I'll debate endlessly here on Slashdot about what is right, but taking action? That's somebody else's job. I'm not proud of it, but I don't deny it. Sadly, the vast majority of the population are like me, so while there'll be a whole slew of Slashdot posters that disagree with my stance, they are unfortunately in the minority outside of Slashdot (and probably within Slashdot as well, where people are MUCH braver on the forums than they are in real life).
Oh, was that my outside voice?
The UK functions almost entirely on unspoken agreements. We don't have an official constitution- but we do have an unspoken agreement that one is there, and that you're not allowed to change it (although political parties have wanted to do so plenty of times). We don't have protected constitutional rights- but we do have unspoken agreement that governments aren't allowed to repeal those rights that aren't there or else something bad might happen (and curiously enough, that one's always seemed to work).
The Queen very much exists in a state of perpetual unspoken agreement. Although technically we're all her property, we all agree not to make a fuss as long as she never tries to exert her ownership in any way (and she doesn't). Although technically she has supreme power of governance, we're all happy to ignore that fact for as long as no-one mentions it too loudly. Technically we can't oust her without violent revolution, but in actuality we all know that we can (as have many of her subjects in ex-Empire countries); both we and her pretend that we can't for as long as she behaves like we can (but equally, as she's only around for the image of the thing, she's not allowed to mention it either so as not to wreck the illusion).
The upshot of all this is no-one is actually terribly sure what will happen if, for example, the government tries to take away an important right. Maybe they'll be allowed to. Maybe the Queen (who technically has to sign off every single law personally) might refuse to pass it in to law (for her own self-preservation if nothing else). Maybe that bloody revolution everyone seems to have had might finally happen in Britain (we're only a couple of centuries late to the party). Maybe the Scots and the Welsh might get together and liberate the English. Maybe option D. It's anyone's guess.
Britain can be confusing.
She is not my queen I am a Scottish subject! (ok kinda did not work too well for William Wallace either but the premise holds)
Before "the web", these sorts of problems did not exist. You would have to publish the item as a book or paper and have it physically distributed via the local system, and thereby be subject to local controls. I suppose in some cases, you could pick up a broadcast via satellite, but by and large a country's physical borders provided information borders. Now with the web, you can email, visit web sites etc around the world fairly unobstructed. Even in china, I think you can get past their firewall in some ways. The question is, will countries, even western countries, snip the wires to try to put the genie back in the bottle? I think you could even find solutions to still allowing email. Why not just "delay" all inter-country connections by 30 minutes. This would make browsing impossibly slow, but email would still work fine. I don't think this is going to happen, but I wonder if the original creators of "the web" had any idea that their information sharing would ruffle so many feathers.
The British Constitution is widely misunderstood by those who come from countries with explicit constitutions -- in particular the USA.
Basically, more than any modern democracy, Britain's constitution is underwritten by revolution. There have been several revolutions and civil wars, as well as the odd tense standoff, in English history which settled various points of constitutional practice.
One of these events -- the Glorious Revolution -- established with some finality that Parliament, and not Crown, is the supreme source of law in England. The Crown is retained for the same reason programmers have kept fopen() and fwrite(). It's simple, well understood and there's a lot of law that relies on it being there. We kept the interface, not the code.
The English could pass an Act to make themselves a constitutional republic if they so wished. Her Majesty would have no choice but to sign away her monarchy. In any case, she'd still be Queen of Australia, Canada and a number of other countries.
Otherwise you're right about 'unspoken' agreements. The usual term is 'conventions'. They tend to be well established in case law; they are not so much unspoken or unwritten as lacking a single documentary source.
Likewise, Australia's constitution, though written, has a lot of conventions surrounding its meaning that a naive reading would not detect. On paper, for example, the Governor-General as Queen's representative has the power to appoint and dismiss ministers, replace governments or declare war. In practice he or she does not have such a power (but it has been established that they have the power to dismiss a government that cannot pass a budget through the Senate).
Yes, I used to be a law student before I came to my senses.
Classical Liberalism: All your base are belong to you.
Yeah, but the villain has the right to bear arms. So, who's laughing n... Oh, wait
Actually, some important rights in Magna Carta were removed a couple of years ago.
She is your queen mate. If anything, the Scottish monarchy took over in England when James I/James VI came south in 1603, so we should be complaining about having to pay for your queen, not vice versa.
Note, the European Convention applied in the UK since 1950 - but to take advantage of it, you had to take a case to the European Court of Human Rights directly. With the Human Rights Act, UK courts have to take into account ECHR judgements, and it makes it illegal for any UK public body to act contrary to the Convention, which can then be judged in the UK courts. There's still the option of taking a case to the ECHR though, if UK courts don't give satisfaction, and the ECHR is a higher jurisdiction than any UK court, so its judgements must be followed, or you're in breach of european and UK law.
Remember kids, it's all fun and games until someone commits wholesale galactic genocide.