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.
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?
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?
Arguing Libel Reform in the Solictiors Journal
I have an article in this week’s Solictiors Journal, calling for whole-scale reform of libel law. In making my case, I find common ground with Nigel Tait of Carter Ruck:
Speaking at an English PEN event on libel, he [Tait] admitted that some proposals for change filled him with “fear and dread”, but he welcomed the idea of a libel tribunal as an alternative to full trial.
“I actually like the idea of the tribunal, the fast track scheme,” said Tait. “If you’ve got it wrong, then… at least you can go to a tribunal and test it. And we would have lots and lots of cases going through our system, instead of the five or six a year which we have at present.” Tait’s firm is often criticised by free speech campaigners, but here we are in agreement: it is surely better to fight libel cases based on truth and meaning, rather than on which side has the most money.
Mine is the first half of a point-counterpoint editoral feature. Rod Dadak of Lewis Silkin LLP provides the alternative argument, saying that effective case management is a more effective route to reform.
The proposals made in the Index/PEN report, which include a radical change of our libel laws, are inappropriate and wholly unnecessary. They would seriously impact on the rights of a libel victim to seek vindication and compensation. Freedom of expression has to be balanced with their rights to have their reputation protected: a responsible media have nothing to fear from our existing libel laws. That said, there is iniquity and abuse in respect of costs and also jurisdiction shopping. It must be addressed. Neither the media nor the claimant should hold all the cards, but Index/PEN are over-egging the argument for reform.
Wholesale change is not the solution, effective case management is.
What is encouraging about this, is that at least Mr Dadak acknowledges the problem. ‘Jurisdiction shopping’ is what is also known as ‘Libel Tourism’, and the issue of spiralling costs is a major obstacle to journalists defending themselves, as the BBC proved earlier this week when it conceded defeat in its legal tussle with Trafigura, over a report on Newsnight about the company’s toxic waste dumping in the Ivory Coast.
I think my reponse to Mr Dadak would be: If effective case management is the answer, then why isn’t it being done already? It is not as if the problem with UK libel laws is a new one: I know Geoffrey Robertson and Anthony Lester, two human rights QC’s who work closely with PEN, have been complaining about the iniquities of libel for literally decades. I would say that it is precisely the failure of the courts to acknowledge the extent of the problem, that has inspired free speech campaigners are now turning to the politicians to sort out the problem.
