Discussing defamation in The Bookseller

If publishers are spending money on libel, they’re not spending on new stuff

The Scottish Law Commission’s consultation on the law of defamation closes this week.  If you want take a stand for free speech in Scotland, then an easy but important thing you can do is co-sign the Libel Reform Campaign’s letter to Lord Pentland, the chair of the commission.

Last month I spoke to the Bookseller about defamation reform, after the incoming president of the Publishers’ Association, Simon Barr, said that it was important that it was important to close the “loophole” caused by the different defamation regimes in England & Wales, Scotland, and Northern Ireland.  Long-time readers of this blog will recall that while the Westminster parliament has legislated, the parliaments at Holyrood and Stormont have not yet done so.

There are many reasons to reform defamation, but to my mind the one that should motivate publishers in particular is this:

Another consequence is the possibility legal costs will dent budgets for breaking new authors. “If publishers are spending money on libel, they’re not spending on new stuff,” Sharp said. And the books that get binned, it won’t be the mainstream commercial titles, it’s going to be the experimental stuff – the first time authors, the challenging and the quirky things that are a bit of a risk.”

You can read Katherine Cowdrey’s full report on the Bookseller website.

Discussing the Limits of Free Speech with The Londonist

Do extremists continue to preach underground when they get banned?

Earlier this week I sat down with the author N Quentin Woolf, host of the Londonist Out Loud podcast, to talk about free speech, its value and its limits.

The audio of our discussion has just been published.  You can listen via the Acast player below, and there are download and iTunes links on the Londonist website. Continue reading “Discussing the Limits of Free Speech with The Londonist”

Scotland has an opportunity to create a model defamation law

Free speech enables a healthy polity and Parliamentarians in Scotland should wright a law that expands the space for free speech.

Edinburgh Castle
Edinburgh Castle

The Scottish Law Commission has said it will include a review of the defamation law in its ninth programme of reform.  That’s fantastic news for those of us in the Libel Reform Campaign who want to ensure that the space for free speech is just as wide in every corner of the United Kingdom.

David Leask at the Daily Herald reported the story and his article puts the review in context.  Yrstrly is actually quoted briefly in the piece, but I prefer this quote from my colleagues at Scottish PEN:

We’re not just campaigning on this to plug a loophole – we’re trying to put in place a structure that supports a healthier media landscape in Scotland.

Continue reading “Scotland has an opportunity to create a model defamation law”

Urging Libel Reform in 'The Herald'

Incredibly, the cradle of the Enlightenment offers fewer free speech protections than England and Wales. This state of affairs cannot be allowed to continue.

Today The Herald has published an opinion piece by me, urging reform of the libel law in Scotland.

Incredibly, the cradle of the Enlightenment offers fewer free speech protections than England and Wales. This state of affairs cannot be allowed to continue.

Read the whole thing in the paper, or at HeraldScotland.com.


Canaries down the free speech mine

On Tuesday I was quoted in a Belfast Telegraph report on the rise of super-injunctions in Northern Ireland.  Super-injunctions, you will recall, are those special types of gagging-order where the judge not only stops you from reporting certain facts, but also bars you from even telling anyone you’ve been censored.  As a rule of thumb, this tends to be a bad thing. Continue reading “Canaries down the free speech mine”

Support the Lesley Kemp Libel Fighting Fund

Here’s something I put together for the Libel Reform Campaign.

As we prepare for the Defamation Bill debate in the House of Commons on Tuesday 16 April, another libel case has emerged that demonstrates the urgent need for libel reform.

The Libel Reform Campaign is urging its supporters to support a legal fighting fund for Lesley Kemp. Lesley is a professional transcriber living in Milton Keynes. In August last year she took on some work for a film production company based overseas. After the late payment of an invoice for just £146, and the deduction of a £25 fee for the international bank transfer, Lesley tweeted her frustration. When the account was finally paid in full, she followed up with a positive tweet noting that fact.

Lesley is now being sued by the director of the production company! The claimant’s solicitors are asking for damages, a permanent injunction and legal costs.

These proceedings have had a serious impact on Lesley’s well-being. She writes:

I am unable to afford legal representation and I’m ineligible for legal aid. The costs and other expenses associated with the legal process are prohibitive to me. I am almost 56 years of age, close to retirement but it looks very likely that this action … will result in the loss of my home and business and pretty much destroy my life.

Thankfully, Robert Dougans of legal firm Bryan Cave and barrister Jonathan Price have just agreed to represent Lesley on a no-win, no-fee basis. However, she must still pay court fees, other expenses, and an interim payment of costs to be able to take the case to trial. A fighting fund for Lesley Kemp as been set up at www.kapipal.com/lesley-kemp. A few supporters of the Libel Reform Campaign have already donated, but we need more people to chip-in to help her defend the case. We only need to raise about £800 to pay the fees ordered by the court. Another £1,000 will be needed to take the case to trial.

These disproportionate libel threats are precisely the kind of actions that the Libel Reform Campaign hopes will be resolved by the Defamation Bill. The toughened defences of serious harm and truth in the Bill would discourage such claims in the future.

However, the Defamation Bill is not yet law. The new defences we have campaigned for cannot help Lesley. Please visit www.kapipal.com/lesley-kemp today and make a small donation to Lesley’s fighting fund.

Niall Ferguson threatens to sue Mishra

Oh dear. We now hear that Ferguson is threatening legal action, which rather undermines my point about the classiness of ‘counter-speech’ over legal threats.

Author Niall Ferguson, who says he has been smeared by Pankaj Mishra. Photo by he Aspen Institute - Creative Commons Licence.
Author Niall Ferguson, who says he has been smeared by Pankaj Mishra. Photo by the Aspen Institute - Creative Commons Licence.

Oh dear.

A couple of weeks ago this blog praised the historian Niall Ferguson for keeping his acrimonius war of words with Pankaj Mishra on the letters page of the London Review of Books, and not in the High Court.

But yesterday we hear that Ferguson is threatening legal action, which rather undermines my point about the classiness of ‘counter-speech’ over legal threats.

I can see how Ferguson would want to pursue this issue to its conclusion.  I imagine there are few things more shocking for a historian and political commentator than to be accused of racism.  To demand satisfaction is a natural reaction.  However, reading Mishra’s review of Ferguson’s book again, the words written do seem to sit very much within the realm of opinion. It seems to me that a successful defamation claim by Ferguson would set a very worrying precedent for the future.

A Tale of Two Authors

Compare how two authors deal with book reviews that they believe to be defamatory.

Compare how two authors deal with book reviews that they believe to be defamatory.

First, Chris McGrath, author of “The Attempted Murder of God: Hidden Science You Really Need to Know” took blogger Vaughan Jones to the High Court over a review that Jones posted on the Amazon website, of all places.  The judgement on whether this case can proceed is expected today.

Historian Niall Ferguson was similarly upset by a negative review.  His book Civilisation was eviscerated by Pankaj Mishra in the London Review of Books (a much more credible and prominent platform than Amazon’s product review pages).  Ferguson felt he had been defamed as a racist.  However, in contrast to Chris McGrath, Ferguson chose a different forum to express his grievance and demand satisfaction – the letters page.

This approach – fighting words with more words – is precisely the kind of counter-speech I advocated in my ‘Way of The Blogs‘ piece for the Guardian a couple of years ago.  It offers a form of redress to the aggrieved person, while avoiding censorship, and it is also much cheaper.  I think it is a much classier way of dealing with critics, than hauling them down to the Royal Courts of Justice.

Can Publishing Be a Form of Fact-Checking?

For citizen bloggers, publishing a claim online carries the implicit (and often explicit) request – “please help me verify”.

And now for some Inside Baseball.

Last week, I managed to irritate legal blogger Jack of Kent (a.k.a. David Allen Green) by suggesting he was being stingy with his links, and then not telling him about it.  This was not entirely true on either count – He was not being as unlinky as I had thought; and I had tried to let him know.

Since David and I have worked together on the Libel Reform Campaign, I assume that he is not going to sue me for trashing his reputation in the Guardian.  However, elements of our exchange got me thinking about issues of ‘responsibility’ in blogging.

Here’s the thing:  When David asked me “why didn’t you check?” I felt strangely short-changed, despitre the fact that I certainly had not checked with him beforehand.  This is because when I typed the original post, I fully expected David to become aware of it. Incoming links and twitter recommendations usually alert people to the fact they are being discussed.  Moreover, I think some part of my subconsicious decided that to cite him was, in effect, an invitation to respond.  The invitation was not explicit, but to me it feels like an integral part of the blogging conversation.

I write this not to try and get myself off the hook for the pint I know I must pay to David, but instead to ask how responsible blogging might be different from responsible journalism. A key pillar of the existing Reynolds Defence (a public interest defence for libellous statements) is the idea of verification before publishing.  But should this hold for bloggers?  What of the idea (which I had internalised until David complained) that the early publishing of comment or allegations on a blog or twitter, is in itself part of the verification and fact-checking process?  For citizen bloggers, publishing a claim online carries the implicit (and often explicit) request – “please help me verify”.

Mainstream media critics of blogging, and the politicians, certainly disagree, and see the publication of anything unchecked as being irresponsible.  I would appreciate thoughts on this from The Man Himself – Could this form of early publication online be considered ‘responsible’, due to the very nature of the medium?

An Idea to Improve Newspaper Corrections

Emotions play a big part in many complaints against the press. Invasions of privacy undoubtedly hurt a person’s feelings, and often a person’s sense of their damaged reputation is related to how they think other people perceive them. In many cases, all the wronged party seeks is a correction in the newspaper. They would happily forgo substantial financial damages if only the newspaper would apologise and publish a correction.  The BBC’s current series See You In Court makes this point very clearly in the case of Sheryl Gascoigne, smeared by three tabloid papers.

Unfortunately, “equal prominence” corrections cause problems for the press. Newspaper editors are often reluctant to publish corrections, because it weakens their credibility, and damages the editorial control they feel they have a right to retain. Very often, news companies would prefer to pay damages and keep quiet about a mistake, rather than print an apology. When the corrections do come, they often seem unsatisfactory to the claimant, buried within the paper.

I have been experimenting with Flipboard and Instapaper this week, two iPad applications which pull content from sources on the web, and repackage it in their own typographic design. This is only possible because web designers have realised that their content must be “platform agnostic”. Design and Content are now kept totally separate in the digital world.  These are the fruits of a battle fought and won against <table> layouts and text embedded in JPEGs (see my Creative Review letter of 2005 for more on this).

It occurred to me that in 2011, news organisations can afford to make all their content similarly agnostic, at very little extra cost. Currently, when they publish a correction, they routinely do so somewhere obscure in the paper, and on an equally obscure page on the website. But Flipboard reminds us that the newspapers are not bound by how their content is displayed online.  Modern technology and cheap digital printing means this same flexibility applies offline, too. Just as I can enlarge the font on a web-browser so everything appears in 40pt Arial, so content printed in the middle pages can be brought to prominence too. I think a few well placed instructions in this area, from the PCC to the newspapers they regulate, could reap psychological dividends for the complainants at no extra cost.

My idea: when the PCC rules against a paper and orders an apology, the paper will print that apology as usual. However, it also publishes, online in PDF form, a redesigned version of then same article. The alternative design template carries the style sheet of the front page of the paper, complete with masthead and a big bold typeface. This PDF is formally ‘published’ by the newspaper, with it’s own ISSN – derivatives of the papers main ISSN are available for electronic editions and supplements.

I’ve mocked up an example, using a recent clarification English PEN secured from The Sun, following a complaint to the PCC.  The first image is the actual clarification as it appeared in the newspaper.  The second is the same text, redesigned by me.

What this means is that the redesigned apology can be reprinted, reproduced and distributed by the claimant and anyone else who wishes to comment on the story. This satisfies the crucial psychological itch at the heart of many complaints to the libel courts and the PCC. Meanwhile, the editors and publishers retain control over the design of the main printed product they put on sale, and the cost of creating a supplementary version of their article is zero (you would just type in a reference to an article and click ‘generate’). In previous times, designing and printing an alternative design was prohibitively expensive. Now the cost is trivial, meaning publishers would have no grounds to refuse to perform such a repackaging.  This idea isn’t perfect, but it would offer more redress than the current process.

Question:  Does compelling a publisher to re-issue something they have published, but with a different design, constitute an infringement of free expression?