Nov 192012
 
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Michael Crick, Channel 4 journalist, reports the following tonight (on Twitter of all places – so it must be true!):

Ld McAlpine C4News: “I’m determined to make such an impact on the Twittering fraternity that they start thinking about what they’re saying”

Meanwhile, Business Insider provides some background to the above statement, as it tells us the aforementioned gentleman is planning to sue at least ten thousand Twitter users.

Now I’m pretty sure that he is utterly within his rights to do so.  I’m even half-convinced that I might attempt to do the same if someone wrongly accused me of being a paedophile, and – in the absence of Legal Aid services as a result of this government’s unnecessary cutbacks – I had the independent financial wherewithal to proceed with such a complex legal process.

But I bet my bottom dollar (of which I have very few) that none of the thousands of Twitter users in question who end up having to pay compensation will have tweeted from – or be resident in – the United States of America.  This, of course, is relevant in some small way.  As I posted in a previous article:

Given that the above-mentioned corporations are all nominally American in approach, mentality and ways of thinking, if nothing else this all goes to show us how difficult and challenging it can be to transplant at a global and online level behaviours which other legal jurisdictions take for granted.

“So what?” you might say.  So are Starbucks, Asda, Amazon and a whole host of other corporations which supply the English with a wide range of goods and services these days.  They adapt to our culture; they tweak their delivery; they use our own language out of a need to get evermore closer to what, for them, is that sometimes terribly elusive foreign customer.

If they can – and do – manage to achieve the above, why not Twitter, Facebook, Google & Co too?

Well.  That’s a very good question.  And here’s a kind of an answer.  The American SPEECH Act from 2010, signed by President Obama with I believe the unanimous agreement of both House of Representatives and Senate, provides the following guarantees:

The Securing the Protection of our Enduring and Established Constitutional Heritage Act, known as the SPEECH Act, makes libel judgments against US writers in foreign territories unenforceable if they are perceived to counter the First Amendment right to free speech.

What’s more, whilst we’re on the subject, and as a gently relevant reminder of where we find ourselves here in England:

The British-based Libel Reform Campaign has expressed concern that Britain’s reputation is being damaged internationally due to what it calls “our restrictive, archaic and costly libel laws, which cost 140 times the European equivalent.”

According to Wikipedia, at least at the moment, SPEECH was enacted in part as a result of what’s called libel tourism:

Libel tourism is a term first coined by Geoffrey Robertson to describe forum shopping for libel suits. It particularly refers to the practice of pursuing a case in England and Wales, in preference to other jurisdictions, such as the United States, which provide more extensive defences for those accused of making derogatory statements.[1]

A critic of English defamation law, journalist Geoffrey Wheatcroft, attributes the practice to the introduction of no win no fee agreements, the presumption that derogatory statements are false, the difficulty of establishing fair comment and “the caprice of juries and the malice of judges.”[2] Wheatcroft contrasts this with United States law since the New York Times Co. v. Sullivan case. “Any American public figure bringing an action now has to prove that what was written was not only untrue but published maliciously and recklessly.”[2]

The difference, then, between Starbucks, Asda and Amazon on the one hand and Twitter, Facebook and Google et al on the other?  Whilst the former have to use English ways of offering their goods and services, properly and heavily grounded in competition with local suppliers and legislation, the software that the latter use to construct their virtual environments has been built around the ideas that led up to the enactment of SPEECH: free speech and fair comment above all – and truth as the yardstick for publishing or not.  The very antithesis, in fact, of an English court’s way of understanding its legal business, scope and approach.

How so?  After all, a virtual environment must be the very easiest to tweak according to local legal jurisdictions.  That they haven’t obviously does beg the question why they’ve chosen to leave them as per US criteria.  And only they can say why this has become the case.  That their business models may depend on scandal and breaking news – perfectly legal in the US itself – does obviously occur to me as one factor which may have influenced such decisions.  But further observations on my part as to why they haven’t made it more difficult for their English users to commit libel and defamation would be no more than idle conjecture.  I don’t have access to anyone on the inside of such decision-making processes, and doubt anyone who does would ever say anything in public.

To summarise and conclude today: Lord McAlpine may manage to clean up that bit of Twitter which operates out of Britain – though I would respectfully suggest that the history of the web would indicate that the crowd generally wins out over a single intelligence – but even if he does, and even if his legal team is as well informed as they would have us believe is the case, I am also sure neither party truly thinks they will ever be able to get even close to any Twitter user operating out of the US.

And if this is the case, it will clearly be an example of a very English matter of libel.

Which leads me, tangentially, to wonder what use our democratically-elected officials will choose to make of the kind of precedent Lord McAlpine is looking to set.

Just as I wonder how they will use it in the future to muzzle legitimate debate and publicly-driven oversight of encroaching – and highly painful – government decisions.


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  One Response to “A very English matter of libel?”

  1. [...] 292012   I’ve written recently on how restrictive English and Welsh legislation (more here) really is, certainly to my gobsmacked surprise, in relation to what we have casually understood to [...]

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