The Wardman Wire

Another day, another libel action on the blogosphere. I seem to spend more time on these than anything else, so … here we go.

The bloggers Alex Hilton (who runs Labour Home and has made a comment) and Dave Osler are being sued following postings on their websites about Johanna Kaschke, who is now a Conservative Party member.

Dave also reports that legal action is also being taken against Trade Unionist John Gray, who writes John’s Labour Blog, and that an action against the Labour Party has failed. There may potentially be an action against Thomas Cobleigh from Devon, but I have not yet seen his article.

Dave Osler comments:

Being a journalist, I have had sufficient professional training to put forward a defence of justification and/or fair comment, and I furthermore contend that the doctrine of ‘bane and antidote’ applies, in that her side of the story was properly set out. I admit to breach of copyright in using a photograph from her website, and will shortly make an offer of settlement, based on National Union of Journalists rates for photographers.

(Read it all )

And this in a comment on Socialist Unity :

I can also tell you that one of the things she is complaining about in her statement of claim against me is a comment you left on my blog.

Interesting Times

There are several unusual features in this action:

• It involves a professional journalist (Dave Osler) as well as not-journalists Alex Hilton, and John Gray. That will give an opportunity to make comparisons.
• The material for which legal action is being taken includes Third-Party posting. The Labour Home posting was a cross-post from a third party blog - not written by Alex Hilton. That is how the site is structured - anyone can create a blog. I have posted there myself.
• Alex Hilton pulled the article immediately, and offered a full right of reply on Labour Home, which his lawyer is telling him is a strong defence.
• Johanna Kaschke is taking action as a litigant-in-person, which certainly puts a different type of cost-pressure on the opponent to that implied by the usual “millionaire’s day at the shoot” nature of libel actions.
• On Jon’s Labour blog, Johanna has engaged in a debate (of sorts) in the comments before taking legal action.

The Case

I’m not commenting in detail here, but Unity sums up the Hilton bit quite well, and you can find the details of Dave Osler’s view at the link above.

So Alex is being sued over an article he did not write, which was published on group blog/blog community which anyone can sign up to and post without advance editorial intervention or control, which Alex merely owned at the time, and the article only seems to have repeated information published by Private Eye which they got from a 30+ year old report in a German newspaper and despite the fact that Alex removed the  offending article as soon as he was contacted by Kaschke and offered her a right to reply - which would usually be enough to get a libel lawyer off his back - he is still being pursued for a reported 5 figure sum through the courts by Kaschke, who appears to be representing herself.

My Comment

The Context: Libel Law Reform

As usual, the need to is to continue educating the public about the problems caused by the English legal framework around defamation and libel.

All of us campaigning in the blogosphere on libel law are not after the abolition of these laws, but rather their reform so that free debate is protected from pre-censorship or bullying by people able to use the courts as a big stick to wave at people they want to silence.

Unfortunately this framework of law is a political problem and will be fixed in Parliament rather than in the Courts. Meanwhile, the game of poker continues.

The Case: My Position

In one sense it is refreshing to see a real court action rather than the endless shadow-boxing of allegations made in Cease and Desist letters.

I support Ms Kaschke’s absolute right to take legal action if she believes she has been defamed, even though I think - and have argued elsewhere - that the framework of English Law under which this case is being decided is an ass. I also - obviously - support the right of bloggers to defend themselves, regardless of political affiliation. Given that corrections have been offered or documented in the comments at the places where the allegedly defamatory material was posted, I cannot see the point of taking the action.

Details

I am concerned that one of the reasons why Alex Hilton is on the receiving end of a libel action is that he is the publisher of an article written by a third party on Labour Home. In this respect I think he has done exactly what he ought to have done in offering a right of reply. His legal advice is that he has acted in accordance with the expectations of even the current framework. None of this can interfere with Ms Kaschke’s right to take legal action

Another live issue is whether a link to defamatory material constitutes defamation, and that featured in my own commentary on the BNP Membership List leak/theft as the reason why I did not publish links to the list. There are Libel Lawyers out there arguing that this is the case in their Cease and Desists letters, for example this one sent to the New Statesman by the representatives of a wealthy businessman.

Wrapping Up

So - I do not see the point of the action, and I would like to see those sued win the case as a marker on the way to the right to comment freely - and the separate idea that offering a similarly prominent right of reply is a strong defence unless the original article is clearly malicious.