The state of UK libel law has what is often called a “chilling effect”; it restricts people’s freedom to communicate, to report on things, and to participate in public debate.
Writing the wrong thing risks a completely disproportionate response from the state. The impact on me, and the effective punishment, which I would expect to arise as a result of a libel action following an accusation of harming someone’s reputation would be far greater than the consequences I’d expect from causing someone physical harm for example by punching them. I think this is an area where our society has got the balance wrong.
It is safer, in terms of legal consequences, to throw an egg at your MP than to ask them certain questions about how they are spending public money. From the point of view of members of the establishment this probably makes perfect sense an egg thrower is much less of a risk to them than someone asking questions.
You can get sued for libel for pointing to libellous material elsewhere; or for repeating libellous material posted by others. That’s a problem when it comes to sharing and commenting on news stories.
This morning I found myself hovering over the retweet button and I decided the libel related risk of pressing it was too great – so I didn’t. The tweet in question linked to an article on a non-mainstream news website which I thought would be of interest to many of my readers/followers. The article had some, but not a large amount of, traction on twitter with only 10-20 tweets mentioning it since it was published a day or so before I saw it. I thought it covered a topic of significant public interest which warranted greater attention, particularly as it related to the behaviour of an elected representative. The brave article noted the elected representative in question was intending to sue for libel; the material he considers is defamatory wasn’t clearly specified and it wasn’t obvious to me that it hadn’t effectively been repeated in the article which is why I decided not to publicly share or comment on it.
Rather than simply not press the retweet button and have the chilling effect of UK libel law on me go unseen I thought I should write this article.
While not being prepared to re-tweet the article; I did privately share the link with professional journalists, suggesting the councillor’s reported behaviour warranted greater coverage.
What else am I not doing or writing due to my perception of libel risk?
While this is the first time I’ve explicitly written about how I’ve succumbed to the chilling effect of libel law I do regularly find myself self-censoring what I write, and what I write about.
Some of the things I would like to write about are in the public interest; the aim of my writing ultimately would be to save lives, improve people’s health, make people happier, to hold those in public office to account and get better value for public money.
I don’t ever intend to, or want to, write anything malicious, or untrue, but I do feel I have to be mindful of in the first instance trying to avoid writing anything potentially defamatory, and if making potentially defamatory statements is critical to what I want to report, I feel I need to consider how I might show that what I am writing is true, because when it comes to a libel case there’s no concept of innocent until proven guilty. I would have to defend what I’ve written. This isn’t always straightforward, for example consider reporting on personal experiences or one-on-one conversations of which there are no audio or video records and no witnesses. In my experience those in positions of power doing dodgy things are adept at being very careful about what is committed to writing or otherwise recorded.
Considering libel implications of writing raises the bar for participating in public debate and acting as “citizen journalist”, it makes such activities more stressful and time consuming. I think if we had a more proportionate libel law we would see more people involved in public discussions about how we run our society.
28 responses to “UK Libel Law Has Chilling Effect on my Retweeting”
There is a thin line perhaps between freedom of speech and libel. However, with the ability to throw your own opinions out to a wider audience so simple and easy now, too many people do so without considering the potential harm or consequences of their actions. That means people do not fact check, they do not make it clear that what they are saying is conjective opinion and instead present rumours and personal opinions as facts.
This situation is made worse in a world where social media can be used deliberately to spin ideas and create a world of alternative truths and half facts.
I think people should think carefully about the potential of being accused of libel and yes that may restrict them from unsubstantiated claims, but it need not restrict their right to hold and express an opinion, provided that they act in a sensible and even handed way.
Taking your example of undocumented one to one exchanges. No journalist would do that, they would document the conversation, making notes etc. to refer back to. That is not an onerous demand on the reporter and it is only fair to the person being reported upon. Just because someone is a criminal or a nasty person that doesn’t release society from treating them like a human being and offering them due process. Yes, sometimes the bad people get away when the good guys play fair, but that is the difference between a free and fair society and the lynch mob.
Just reading the article and the above comment. I think a distinction needs to be made between reporting something as fact and an opinion. If you accuse someone of a specific wrong doing then obviously you should have evidence to back that up. On the other hand if you express an opinion about an MP who has been found guilty of fiddling expenses, that is fine. A reputation cannot be damaged by something someone says about that MP because reputation is determined on the behaviour of the MP and how he/she has been seen to behave, rather than what others are saying about it.
An opinion is an opinion. You cannot have an opinion conditional on it being even handed or sensible. That would be silly.
Taking this a step further – another example concerning what may be a controversial opinion where you say someone has been incompetant. I believe that the decision in the Sally Bercow case was wrong in law and the judge ignored numerous precedants. My opinion is that the judge did not do his job probably. Many would disagree with that but I can prove that my opinion is based on facts by producing case law and comments from the same judge in previous cases. It is an honest opinion.
The problem is most people do not understand libel. Often the judges get it wrong as in Sally Bercow. The law has changed recently for the better but something needs to be done to stop vexatious claims (which form many cases) but assist those who have suffered serious damage. If you have not suffered damage, stay away from the courts.
Following that logic, even if you were prepared to for example make a witness statement to a court, under oath and under threat of the significant penalties for perjury if you were not telling the truth, you couldn’t safely publish such material if it could be considered defamatory.
But what if what you want to write about occurred, or was admitted, in private? There can, quite often, be cases where the evidence you have is that you, or someone else, heard, saw, or experienced something. In such cases contemporaneous notes and supporting evidence might help support a case, but the core of it comes down to one individual saying one thing about what happened, or was said, verses another.
I personally don’t feel free to publish what I’ve seen and heard without risk of libel action; at least not without very careful consideration.
The new defamation law MPs have given us requires opinions are presented along with an explanation of their basis and that basis is in fact in order for a defence of “honest opinion” to be used. Other opinions, or opinions not presented in this way, would not benefit from this defence.
Richard
I understand the difficulty in the first scenario above. I suppose the law is still weighted against the writer in these circumstances.
With opinions, when writing an article it is usually a good idea to say how you have reached that opinion. But in truth the judges more recently have been much more discretionary when dealing with cases where opinions are made. Defamation is all about context and there are many situations where someone has expressed an opinion without specifically supporting it but its context was obvious to the reader. This means that an opinion cannot really damage anyone if the facts being commented on are in the public domain or perhaps obvious within the context of an online discussion. Even if an opinion is exaggerated or wrong the defendant still has a defence as long as it was honest. It is up to the claimant to prove the opinion was dishonest which is very hard.
So the old law did offer protection. In 2010 81% of libel defendants won their cases and I think it is fair to say that judges have been better at interpreting and applying an unsatisfactory law more fairly and with common sense (bar one or two exceptions)
The best case to study about libel and all the defences available is Smith V ADVFN (see below). It is well written and full of common sense. The claimant tried to take comments and insults made in an online argument out of their context and draw on dictionary definitions. The judge said that this was not realistic and ruled for the defendants.
The other case worth looking at for the distinction between facts and opinions is Waterson V Lloyd. See this excellent media law site and coverage. The judge got it wrong initially but was then overuled and the defendant won:
http://inforrm.wordpress.com/2013/03/02/case-law-waterson-v-lloyd-honest-comment-and-political-discussion-edward-craven/#comments
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2008/1797.html&query=smith+and+v+and+advfn&method=boolean
You argue the courts can sometimes reach sensible decisions under the current (old) libel law. However if a case gets as far as court the person being sued has in many ways already lost, they’re required to put lots of time, effort and money into defending what they’ve written and there’s a risk of massively disproportionate damages.
My article is about public bodies suing for libel in the first place. I don’t think they should be able to, and cases brought in relation to comments about public bodies should be thrown out.
If we had a much cheaper, open and transparent, accessible and speedy courts system I would be happy to see it used more; but as it is we don’t.
Richard
Something which I should have mentioned more clearly is that if you have a good understanding of how libel law works in practice you can normally head off most libel threats in your response to the claimant’s solicitors. I have helped a few people and the solicitors were never heard of again. This was done by referring to various cases and making it very onerous on the solicitor to provide the correct information to proceed with the claim. Claimant solicitors rarely comply correctly with the proper protocol and many of the threats and claims and are simply nonsense. So while you are right in many cases that people will start paying for defence lawyers etc there is usually no need if you take the right approach and do some research.
So, you can talk about public bodies suing etc and the law being unsatisfactory and having a cheaper system but ultimately this will not achieve anything. You have to use the part of the law which is good and the cases like the ones mentioned above to achieve a speedy outcome. Anyway I hope I have offered some readers a different but effective insight into ways of dealing with threats etc within the current system.
There has recently been a case where someone has been asking for my opinion on allegations. Due to the state of libel law I’ve not felt able to comment. Ironically my own reputation has probably taken a hit as it appears I am simply refusing to share my views, or am ignoring questions directed at me.
I’ve just seen a tweet by an MP suggesting someone has libeled him by repeating something said in what looks like a reputable newspaper article.
I feel I can’t tweet drawing attention to the exchange and thereby the material the MP claims is libelous because pointing to libelous material can itsself be considered libellous.
Another MP has stepped in suggesting the MP alleging libel ought sue the newspaper in question rather than someone tweeting asking questions arising from its article; the latter MP mentioned the newspaper’s Twitter name so hopefully professional journalists will look into and report on the exchange.
If it’s in a newspaper (a decent one that is) does he have a leg to stand on? Don’t they check before printing anything contentious? Just wondering. Maybe in vain, but wondering, nonetheless.
I did not blog or tweet about a message an academic arranged to be distributed after their death due to concerns about libel which I’ve expanded on at:
http://www.rtaylor.co.uk/universities-can-sue-for-libel.html#comment-108720
I suspect, but don’t know, the academic may have arranged for the distribution of the material after their death due to the risk of libel action had they released it while they were alive.
A sector specific website which describes itself as a body which “delivers trade information” published a couple of articles about the apparent behaviour of an individual in a senior and influential role in our society.
I thought these articles and the revelations within them deserved wider publicity but I couldn’t independently verify them myself so I didn’t immediately re-tweet them or publicly comment on them.
Perhaps this is exactly what our libel laws intend; and I should set myself a high bar before publishing or pointing to information that could reduce people’s opinion of someone else (such as in this case a negative news story about an individual in a public role) but it creates a very high bar to entering public debate.
While writing this comment I thought perhaps I should jump the hurdle.
So I tweeted:
I also called Mr Cooke. The person I spoke to confirmed he was TfL board member Brian Cooke. When I asked him to confirm if the @BrianCookeBeck twitter account was his he replied:
and initially refused to say it was his twitter account.
I asked about the apparent removal/suspension of the Twitter account for a period. Mr Cooke responded:
I said nothing to provoke such an outburst, and I said nothing between the latter sentences. I had merely enquired as to if he operated the Twitter account.
I’m left trying to assess what Mr Cooke said to me. He didn’t explicitly confirm he operates the Twitter account in question, but he didn’t deny it either and appeared to accept he did have a Twitter account.
The question I’m left with now is if it’s reasonable to publish a report of my activities, given they may point readers to find the articles I was reading, and which point to the Twitter account which may, or may not be real.
I think I can though more confidently make the point I wished to – which was to question the quality and attitude of some of those we put in positions of power in our society and ask what are we getting wrong that results in such appointments being made. I think the lack of freedom to challenge, question and debate is a key part of the problem.
The author of the material published on the @BrianCookeBeck twitter account has warned someone commenting on the statements made that they are:
A local Labour city councillor tweeted a series of comments about a group of Conservative councillors / activists / candidates, saying one owed him money, another was in “trouble” over expenses and suggested another was or had been involved in housing benefit fraud.
The local Tory MP replied which would have given some extra prominence to the tweet and as of the time of writing two professional local journalists have also replied alluding to the potentially defamatory nature of the remarks (and by replying incidentally drawing more attention to the original tweet).
I tweeted, without replying, so without including a direct link to the source tweet, to say:
Councillors who owe each other money is something I would like to know about when observing a council meeting; I can imagine this could become a factor when they’re deciding how to vote, or whose views to support. A councillor might not want to upset someone who could demand they immediately repay a loan for example.
I have not retweeted or replied to the original tweet.
I’ve not directly identified it here; but perhaps I’ve made it easier that it would otherwise be for others to find it and that’s a risky course of action? It would be safer to just keep quiet so as I often do I’m picking out the fine line between trying to make a useful contribution to society while trying to minimise the risk of losing my home and ability to live independently as a consequence of doing so.
The councillor has deleted his original tweet, and reissued a differently worded version making it clearer which allegation is aimed at which individual.
Another tweeter has suggested the money owed is due to a lost bet; with the suggestion being that makes it not a real debt.
Once I’d tweeted:
I wondered if I was taking an excessive libel risk given universities can now sue for libel. I think it was a serious problem which I experienced going on, which I would like to see addressed. I’m making a true statement, in the public interest, but am worried that I might have made a mistake which might result in me losing everything I have. Have I been reckless? Perhaps I should delete the tweet. [That’s what I decided to do – I have already exceeded any reasonable duty one could expect me to consider I have in raising the problems – and I will continue to seek safe routes to push for reforms to our society].
There have been a couple of high-profile news stories about MPs threatening / taking libel action.
I’ve not commented on and tweeted as much about these stories as I’d like to out of fear of being targeted under libel law myself.
Perhaps MPs, and candidates, ought be a special case in relation to libel law; with the aim of making entering debates about who runs our country less financially risky.
There’s a strong case for a libel law to deter people publishing malicious lies about candidates in the run up to an election campaign; if you’re going to have a libel law at all then this kind of situation is surely when you need it most. My own preference though is for allegations to be rebutted and challenged in open and public debate. If there’s a need for a court’s intervention perhaps it should be to ensure any rebuttal / response reaches the same audience as the original claim to ensure a fair and balanced platform.
It’s hard to write updates about things I’m not tweeting, or otherwise discussing due to libel laws.
I recently read about an interesting documentary. I thought it deserved more attention and would have liked to publicise it but I can’t be sure the statements in it are not libellous and even if they were not I’d be concerned the organisation which is one of the subjects of the documentary might make legal claims anyway. I have decided not to write about it. I may do some more research, fact and reference checking before publishing anything. If I was free to publish a link though more people might do that fact checking and research and society as a whole would be better informed about an important matter of public policy.
Every day I think about my duty to the wider public, and the potential impact of our libel laws, and if I should write more about some of the things I’ve experienced. When I consider the potential impact on me I hope I’m not being selfish, but I think I do have to consider my own basic needs as if I don’t have food, warmth, shelter, time (and an internet connection!) I’m not in strong position to try and reduce needless suffering, make the world a safer more pleasant place, or pursue other endeavours.
If I speak out and lose everything following a libel action then the establishment wins, and no-one gains. That’s why I focus on lobbying elected representatives and trying to improve the way we use our democratic system.
Reports that Prime Minister David Cameron had described those opposing bombing in Syria as “terrorist sympathisers” at a private meeting of Conservative MPs were made on the 1st of December 2015. I didn’t re-tweet or comment because there was no source for the comments. They have now been extensively debated in Parliament.
This evening I’ve decided not to re-tweet an allegation made by one councillor against a number of other senior local political figures on the basis I don’t know if the allegations made are true or not.
There is a verifiable story behind the allegations, that the current edition of the St Ives Quay News promotes a number of local Conservatives, including by running two pieces by Conservative Police and Crime Commissioner Candidate Jason Ablewhite, one under the Huntingdonshire District Council banner. I’ve restricted my promotion of the occurrence to this comment and the below tweet:
Screenshots of a purported social media exchange involving a local election candidate in which they make comments which could be seen as showing negative prejudice against a group of people are currently being shared. They look genuine but I’ve decided not to share them as I can’t be sure.
I’ve urged those in a position to do so to try and establish if the comments were made by the candidate.
The candidate admitted the comments during a radio interview on BBC Radio Cambridgeshire and said they came after his business suffered crimes which were traced back to a traveller site:
A prominent media commentator tweeted an allegation that a taxi driver had made a statement following an interaction, the taxi driver was identified.
I don’t know if the taxi driver said the words they were alleged to have said, so I didn’t feel able to press the re-tweet button. Perhaps this is libel law working as intended; I’ve not propagated a potentially defamatory statement as I’m not able to verify it. Perhaps the relevant taxi regulators or the police will take action and there will eventually be some kind of judgement or regulatory decision which I am able to safely report.
An exchange followed the original tweet in which it was suggested the reporting of the event, even if true, could result in action in line with the CPS guidance on social media
http://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/
Which says the following is an offence:
I didn’t feel able to enter that discussion without pointing to the original potential defamation.
Having read the CPS guidance I am very concerned that the CPS consider that an offence is being committed when:
While I support positive campaigning in elections sometimes it is right to disparage a candidate if you think their policies will do harm, or not be best for the city/country/humanity. This guidance could seriously chill election debate on social media, and potentially more widely. Perhaps this wouldn’t apply in elections though as the candidates are generally publicly identified – though not always clearly – some candidates don’t have photographs or home addresses, twitter usernames, email addresses etc. published and those could be revealed via social media to enable debate.
I just retweeted and quoted from an article on a national news website:
I’m not sure doing so was entirely safe from a libel perspective as I don’t know how much to trust the article. Clearly the article is of local interest, and there’s a public interest in tackling violent crime and crime driven by race based hate which is furthered by publicising and discussing what occurs, or is reported to have occurred. The attitude of college leaders to discipline within their colleges and the line between what the colleges deal with internally and what’s dealt with by the police and courts is also an important one.
I just retweeted an MP’s tweet and provided a link to what I hope is useful background information:
I had to agonise carefully over retweeting the MP’s tweet, and in particular the statement by the MP that the Prime Minister had lied. It appears the letter is real as it has been reported that the Conservatives have commented on it, and while I think the statement from the Prime Minister is highly misleading based on the voting record, a vote requiring a series of undertakings prior to giving notice of the UK’s intention to leave the EU is a vote slightly against leaving, and could be interpreted as a vote against the Prime Minister’s plan.
I shouldn’t have to risk everything I have when writing a tweet like this. Clearly the risk-reward personally makes no sense and the rational thing to do is to avoid engaging personally with discussions like this about how our country is run. I hope overall my tweet is a positive contribution.
A suggestion has been made that a comment I made when retweeting a councillor was misleading. I thought I was doing something utterly safe and completely in the public interest when noting a minor problem with local public infrastructure; however even this simple civic action turned out to potentially risk my way of life. While there are many applicable defences in the Defamation Act 2013 even defending a case in court would be ruinous. These kinds of occurrences make me empathise with those who turn a blind-eye to problems in wider society and focus exclusively on themselves and those around them.
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