Libel and the public – we’re all publishers now

Libel law isn’t on the National Curriculum, but it’s something that will become increasingly relevant to UK citizens, whatever their educational or training background. That’s because more and more of us are publishers now, whether through email groups, Facebook pages, Twitter accounts or blogs. Defamation is a tricky part of English law anyway, made even more complicated by online technology.

Here are some questions for bloggers and online publishers to consider:

• Would a defamatory comment online be classed as libel or slander?
• Who is liable for the content?
• What counts as a publication?
• Last but not least, how are you going to fund your defence or seek advice if someone pursues legal action against you?

Some of these points are raised in James Tumbridge’s paper on ‘Defamation – the dilemma for bloggers and their commenters’ (EIPR (£), 31(10), 505-507), which is a recommended read for those with access to Westlaw or Lawtel. Recent defamation cases have also raised questions about hyperlinks, snippets and comment moderation.

While reform to defamation law is as relevant to online publishers as print publishers, there is one particular part of Lord Lester’s defamation bill 2010, currently going through Parliament, that has particular significance for bloggers and social media users: the proposed change to the multiple publication rule.

As the law stands, each time a page is downloaded from the internet (ie. read), it would count as a new publication, which gives rise to a new cause of action. But, if the bill’s Section 10 proposal is accepted, a claimant could only sue for defamation once, within a limitation period of one year. This part of the bill seemed ‘to be a proposal which merits serious consideration,’ commented the Inforrm blog, but it also raised concerns about the detail here.

The BBC College of Journalism executive editor, Kevin Marsh, has called for ‘fair play’ on the multiple publication rule and looked at both sides of the coin at the Media Standards Trust/Inforrm/Gray’s Inn libel reform event on Tuesday evening. He notes: ‘It’s true that in the internet age, this 150 year old rule is an invitation to gold diggers. But again, from the innocent victim’s point of view, the web also means that once a person had been libelled, he or she stays libelled, more or less forever.’

Lester’s proposal would be a change welcomed by bloggers with limited legal resources and it would standardise the rules for publishers. But, like Marsh says, we should consider the effect on the victim too. Writer and blogger Zoe Margolis, also speaking at the MST/Inforrm event, drew attention to the Google trail, laid speedily by RSS publication, and explained how she sought to limit the damage online when she was libelled by the Independent on Sunday last year. She pursued the case to make sure the defamatory headline was pushed down the Google rankings by accurate stories about her work.

It’s a question of balance: making sure our laws are updated for the online age, while also ensuring that mechanisms are in place to restore the reputations of claimants, when they are the victim of libel. When it comes to researching libel law and its relationship with online publishing, it’s easier to find questions than answers. New forms of digital media are born rapidly as people develop new ways of communicating, bringing with them new problems for libel courts to deal with. Lester’s bill goes some way to address the question of digital publishing, in regards to multiple publication and libel tourism. But troublesome issues around online libel are not going to be solved any time soon. In fact, the debate has only just begun.

This is a guest post by Judith Townend. Judith Townend is a freelance journalist and MPhil/PhD research student at the Centre for Law, Justice and Journalism, City University London. She blogs at http://meejalaw.com/ and is @jtownend on Twitter.