Press regulation on a sinking ship
28 March 2012
Cairns v Modi [2012] EWHC 756 – read judgment
It was coincidental that this cricket libel case and Lady Justice Arden’s speech on media intrusion and human rights “Striking the Balance” came out on the same day.
Non-followers of cricket and non-followers of Twitter are equally bemused by the vastly frothed story about match-fixing allegations, but this was the first social networking libel to hit the law reports in this country. Despite this, the case has all the trappings of an old fashioned defamation case – strong public figures, ready to come forward to defend their reputation/publication; a long lead time between publication and identification of the libel, protracted cross examination, sheaves of evidence going to both justification and claimant. The claimant is a famous New Zealand cricketer with a reputation to defend. Nothing new there. The novelty was that the defendant, one time chairman of the hugely popular Indian Premier cricket league, posted a line on his Twitter profile implying that the claimant had cheated by fixing matches. It was serendipitous that the author of the tweet, Mr Modi, is both a well known figure, resident in England, and ready to come forward. The justification defence fell apart and the claimant was awarded £75,000, with another £15K for aggravated damages. End of story. Or is it?
Mr Modi’s defamation of Mr Cairns is the tip of a very large iceberg, most of which is beyond the reach of the law. All our libel reforms and multitudinous proposals to instil better behaviour in the press, are, to continue the ocean metaphor, insignificant sea defences, as the columnist Matthew Parris puts it. Considering his position on the board of the free-speech organisation Index on Censorship, Parris muses –
we gave a considered submission to the parliamentary committee considering these draft reforms, and I stand by it. But I do begin to wonder whether the careful little sea walls that lawyers and legislators are hoping to construct are all doomed to be swept away in a tsunami of cultural and technical change.
The point of the web is its near-instantaneous nature. Choruses of voices, barrages of approval, disapproval, complaint, support or dislike sweep across the internet in waves of tweets and blogs and readers’ posts. Most voices are to all intents and purposes anonymous; few can be held to account. The sheer volume and the speed of this traffic makes its impossible for any editor or mediator to make proper checks before comments are posted….I submit that this is intrinsically impossible to supervise or regulate. (“The writing is on the wall for restrictions on free speech”, Spectator 10 March 2012)
As Arden LJ mentions in her speech, the industry regulator in this country, the Press Complaints Commission annouced earlier this month that it was moving “into a transitional phase, transferring its assets, liabilities and staff to a new regulatory body”. Moving the deckchairs on the Titanic, more like. But this obsession with small manoeuvres in the face of imminent catastrophe is widespread; there is ” considerable activity” in other parts of the world as well in relation to media intrusion. The European Commission has established a high level group on media freedom and pluralism. This will be making recommendations for the protection of the media in the autumn. In Australia, the Finkelstein inquiry published earlier this month has recommended the establishment of a government-funded “News Media Council” to set and enforce journalistic standards. In New Zealand, the Law Commission has issued a consultation paper seeking views on the extension of media regulation and the reform of civil wrongs.
The truths about press regulation are trite. Do we need yet another recitation in the form of this latest judicial lecture? The common law protects responsible journalism in some respects, but not others [15 & 18]. Journalists must behave responsibly [17]. Human rights law protects both privacy and freedom of speech [19-23] . Common law controls, such as defamation, are essential prerequisites of a responsible press. Public figures should expect more intrusion from the media than private individuals [36]. Controls on speech should not be content driven. What is in the public interest is not necessarily what interests the public. The press is a vital watchdog. There are cultural differences to free speech in Europe [25, 27 – 29, 64]. So on, and so forth.
Unfortunately, like all prayers, this incantation serves no greater purpose than a rousing recital on a sinking ship. It makes the performers and immediate listeners feel better but does nothing to provide them with the tools for survival in the imminent catastrophe. All the instances of Strasbourg intervention on behalf of responsible journalism [36 – 56] are very praiseworthy, but they belong to an archaic world of quaint reportage, where authors are identifiable, the printing process glacial, publishers accountable, and the courts can move at a leisurely pace of weighty fact examination and equally weighty reprehension of all sides, present and correct. A world in which all players can feel better by delivering to each other fine lists of guiding principles [55]
Arden LJ predicts that
It is not beyond the realms of imagination to see that in years to come the Strasbourg court will regard it as a necessary step by a state to have some procedures in place to monitor the activities of the media. In that case, however, a state should be able to choose how far to go beyond the basics of a regulatory scheme [78]
With respect, the realms of imagination are already in the past. The moment for Strasbourg or any other institution to step up to the mark and properly monitor the activities of the media has fled. We are left with the impossible situation where the print media continues to be governed by this leisurely collection of heirlooms from the pre-internet days, whilst blogs and social networks and unforeseeable future methods of communication run amok. Examples can be picked almost at random from any day’s news but a recent chilling reminder of what this is all about is the post-mortem threat of the Toulouse killer to release his film, taken with a Go-Pro camera, of the school massacre – brave threats by the French government to “jam stations” and the agreement by the broadcaster Al-Jazeera to abide by the ban mean nothing in the face of the very high likelihood that this footage will find its way onto the net in a few days’ time.
Perhaps there is nothing that the law can do about this; perhaps it is for the best. Parris suggests that this may be the best hope for the quality press – in an era of uncontrolled and uncontrollable media, where the law has almost no place, will offer new opportunities to identifiable publications which are responsibly run,
In a virtual anarchy, reputation becomes an enormously valuable asset. With nonsense and calumny swirling around everywhere – and when the notion that something must be true or someone would have sued, is obsolete – we will more than ever look for publications we can trust.
So, bring it on, says Parris, let it rip. Let us hope he is right.
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Having thoroughly reviewed these judgments, it appears that there is a ‘Get Out Of Jail Free’ Card for any web host, so long as they:
a) remove the allegedly defamatory material promptly and do not allow it to be negligently republished and
b) were not informed that the material was ‘unlawful’ as described in Reg. 19 of the 2002 E-Commerce Directive.
If this regulation had been in place at the time of the Godfrey v Demon Internet Ltd [2001] QB 201 decision, then Godfrey could not have won.
The problem lies in the fact that the burden of proof is placed on the Claimant to prove to the ISP that the information was unlawful and also to show that there is no reasonable defence to any claim. After all, just because something is defamatory does not mean that it is ‘unlawful’ per se, because there might be a viable defence that makes it ‘lawful’.
The rulings in Bunt v Tilley [2007] 1 WLR 1243 and Kaschke v Gray [2011] 1 WLR 452 put the Claimant in the impossible position of having to think of every viable defence to the primary defamation claim and to notify this to the ISP before they initiate any claim against the ISP for republication of defamatory material.
The ISP only has to remove the material promptly (and by that I mean within a reasonable period of time = a week or so) to escape liability.
Google explained to Leveson that they receive a considerable number of complaints. They would have to employ a huge legal department if they were to vet everyone of the complaints. The E-Commerce Directive appears to be placing the cost of proving the complaints onto the Claimant. However, this may infringe the Art 8 rights of the Claimant, because all the time the defamatory material is visible, the Claimant’s reputation is being damaged and it could take a great deal of time to put together sufficient proof to verify that the defamation is unlawful, that there is no viable defence and that the material must be removed.
Personally I am very concerned that the E-Commerce regulations could allow irresponsible ISPs to escape liability for obvious defamations. The judgments say that Google’s blogger database is expanding at the rate of 250,000 words per minute. It is inevitable that some of those are defamatory. It seems to me that the E-Commerce Directive is allowing the ISPs to benefit from the material they ‘publish’ through advertising revenue, but not putting them under the obligation to ensure that the material is removed unless it is proven ‘unlawful’.
Suppose that someone makes an allegation of criminality or dishonesty, as mentioned in the cases cited, then it would be necessary for the Claimant to prove to the ISP that the allegation is false and unlawful, by either obtaining a report from the Police to prove innocence, or by making a statement of truth to the court which is accepted.
In most defamation cases, the Claimant will go after the author. As most blogs are anonymous, the Claimant would have to apply for a Norwich Pharmacal to discover the identity of the author. To obtain the Pharmacal, the Claimant would have to provide the court with a statement of truth and as much information as is necessary to verify that the allegation was arguably defamatory of them. So it would seem to me that so long as the Claimant went after the author first, they would be providing the ISP with enough information to show that the allegation was unlawful and that there was no arguable defence.
Testing all the defences would only be possible if the claim against the author had been fully investigated at trial. So it seems to me that the E-Commerce Directive coupled with a limitation period of 1 year and the current delay in libel claims means that it would be impossible to provide sufficient proof to the ISP before the limitation expired.
As I said at the start, it is basically a ‘Get Out Of Jail Free’ card, because it is impossible for the Claimant to provide sufficient information to prove the information is unlawful before the limitation expires and this means that the Claimant’s Art 8 rights have been denied.
The right to publish anything must also come with the duty to publish responsibly and not to injure anyone else’s rights. Be it to privacy or reputation. Far too many libel reformers scream about protecting the Article 10 rights of free speech, but pay no attention to the Article 8 rights of the victims of irresponsible posting.
It was interesting that you quoted Davison v Habeed, primarily because Judge Parkes presided and scored an enormous own goal against the judiciary in a matter presently before Strasbourg. You see, whilst acting as counsel for a publisher, he admitted that a Claimant had a ‘prima facie case’ against his client, because they had been notified of allegedly defamatory posts and whilst that publisher removed most of them (allegations of criminality and dishonesty), they did not remove them entirely from the publishers database, from which they were accessed and republished all over again. This leads back to the Demon Internet authority quoted by Parkes in Davison v Habeed.
The upshot of this goof by Judge Parkes is that a well know High Court Justice could not categorise this claim as without merit, even though he classified numerous others that were connected with it as such merely to enforce an unlawful CRO. They were fruit of the same tree, so to speak. That Justice then had to (humiliatingly) admit that his CRO was a mistake, in order to prevent a successful appeal of his entire judgment.
A Court of Appeal judge recognised the Justice’s error, mischaracterising the claims as without merit when admitting that one of them did have merit (because counsel/Parkes had admitted as such) and allowed PTA. The CofA agreed that the (Parkes) claim should continue, but referred the other claims back to another justice for him to strike them out and save the first Justice from embarrassment. The second Justice ignored the inconsistencies and anomalies of the first Justice’s mistake and even enforced another CRO, one that has not even been recorded in the CRO database, even though it was just as unlawful as the first attempted one and a complete denial of Article 6 rights.
The result of all these bad judgments is the impression that defamation on bulletin boards and blogging are akin to slander, not libel and that even though a publisher could be liable if they did not take down the defamatory material, they would be able to escape liability if the original defamations had a sprinkling of vulgar abuse in them to ‘taint’ them as without merit.
I’m hoping that the Leveson inquiry will agree that publishers are responsible for removing defamatory material and that the libel reforms agree that the right to privacy and reputation must be given equal consideration to the rights of free speech.
I agree entirely with your views. Thank you for the Interesting Background to Judge Parkes this certainly adds colour and goes some way to explaining his appalling judgment in Davison v Habeeb.
Of course Ms Davison was a disabled litigant in person ranged against the might of Google’s Global Empire and its Legal team from Reynolds Porter Chamberlain headed by MR White QC. Never the less Judge Parkes ruled Ms Davison had proven Google were Publishers and yet then went on to rule that because Google was an American Company, whilst clearly they are a multinational Organisation, Google were protected by the American First Amendment. Extraordinary.!
This Judgment should be reviewed by the Court of Appeal and it is to be hoped the leave applied for will be granted.
It’s strange indeed that Google represent themselves as so responsible in their testimony to the Leveson inquiry and then hide behind the skirts of the Judge in this case.
Maybe you ought to examine Google’s testimony, compare it with their actions in your case and then write to Lord Justice Leveson. Because if Google has been misrepresenting their corporate responsibility, then maybe you should highlight this so something can be done about it. After all, Piers Morgan misled Leveson and he will pay for it, so maybe Google needs to added to that list, so they can explain why they mistreated you.
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Daphne-Keller.pdf
http://www.levesoninquiry.org.uk/evidence/?witness=daphne-keller
Taking down defamatory material from Blogs is simple make the hosts responsible for all defamatory material once notified. They already are I hear a chorus of replies the e-commerce act makes them responsible. . Actually no that is not the case see 1) Davison v Habeeb and “) Tamiz v Google. In both cases it was ruled in the Host was not responsible.
In Davison V Habeed although the host was judged as a publisher and even though they were (and still are) publishing that Ms Davison is involved in a conspiracy the destroy the economy of the United Kingdom and involved with David Cameron in the illegal purchase of nuclear weapons it was judged by Judge Parkes that the host was unable to tell if these allegations are true or false. So they continue to publish with impunity.
In Tamiz v Google even though the posters were anonymous the Host was judged to be not responsible for the libel.
The host in both these cases was the vastly powerful Google.Inc and these judgments mean that anyone can write anything they like on any of Google Inc’s platforms and it will not be taken down if Google does not feel like it
Make the Hosts responsible it is as simple as that.