Libel laws do not work in an online world: Will the draft Defamation Bill provide the solution?

Libel laws do not work in an online world: Will the draft Defamation Bill provide the solution?


Author: Jo Joyce

Recent cases have further highlighted the arguments in favour of libel reform for England and Wales.

Critics of the law as it stands claim it persecutes those publishing controversial opinions, particularly in scientific fields and, more insidiously, that the law frightens many off publishing at all.

Worryingly, for many website operators it appears from a recent judgment that a mere link to offending content on another site may be sufficient to render you liable for its contents.

New case, familiar facts

In the recent case of McGrath v Dawkins and Others, McGrath, a self-published author, brought claims of defamation against well known scientist and atheist campaigner Professor Richard Dawkins, as well as Dawkins' Foundation for Reason and Science, online retailer Amazon and an individual, Vaughn Jones. Jones had made critical postings about McGrath on Amazon and, a site registered to the US sister organisation of Dawkins' UK foundation.

The claimant argued that he had been defamed by Jones and that Dawkins, his foundation's website and Amazon were responsible for allowing defamatory publications and so were liable for defamation themselves.

After a lengthy pre-trial process in which hundreds of thousands of pounds worth of costs were incurred by the various parties, the judge ultimately agreed with the defendants that the claims failed on a number of counts and should be struck out almost in their entirety.

Although the McGrath case was unusual in some respects, not least because the claimant pursued it himself as a litigant in person, in many respects it will sound familiar to readers.

A number of prominent cases have been fought in which defendants - often members of the scientific community - have struggled to defend their right to pass comment on organisations, individuals or practices of which they disapprove on the basis of their scientific opinion.

The case of British Chiropractic Association v Singh saw the defendant scientist forced to pursue a lengthy battle all the way to the Court of Appeal to establish his right to publically criticise the claimant's practices.

Hidden risks in hyperlinks

The McGrath case highlighted the fact that the law is extremely unclear when it comes to linking to defamatory material and whether this constitutes a 'publication' of it or not.

The claimant argued that there was a link from the Dawkins' Foundation's UK site to the US site where the postings in question were made. The existence of the link was disputed, but the claimant argued that if it existed, the Foundation would be publishing the postings on the US site simply by linking to them.

In this case, the matter was not ultimately decided, but the judge stated in his findings that in certain circumstances, inserting a hyperlink could amount to publication of the page linked to, particularly where the transition is fairly seamless and the reader might not be aware that they are moving to a different website.

The untold damage

There appears to have been a proliferation of high profile libel cases in recent years, although in reality the prominence of these cases is largely down to an effective and vigorous campaign being pursued by a number of organisations and public figures.

A serious concern is that the true nature of the problem and the need for reform is obscured from view because of the chilling effect that the current law has on writers and publishers.

Campaign groups argue that the real effect of the current libel laws is the reluctance of publishers to take a chance on controversial material. It is claimed that scientists and authors are being intimidated into withdrawing articles and blog pieces, often by large organisations using the law as an elaborate form of PR.

What about the Defamation Bill?

With all three main political parties committing to libel reform in their 2010 manifestos, it is perhaps not surprising that England's largely uncodified libel laws are set to be changed by a new Act of Parliament.

Currently working its way through Parliament, the draft Defamation Bill goes some way to satisfying campaigners and provides added protection for academic publications.

The Bill will also introduce stricter tests for foreign litigants in an attempt to reduce Britain's reputation as a centre for libel tourism.

However, campaigners have criticised the Bill for offering no real protection for website operators or defendants faced with claims brought by large organisations.

Under the law as currently drafted, corporate entities will still be able to bring defamation claims with relative ease.
The main argument against the current form of the Bill is that it offers no defence of publication in the public interest. Although at present there is a defence which can be employed by journalists who can show reasonable efforts were taken to ensure the publication was responsible, this does little for bloggers or columnists, and fails to reflect the democratisation of publication brought about by the internet.

Caution advised

The Bill is likely to receive further amendments before it becomes law, so its reach is still unclear.

In the meantime, website owners are advised to be careful what they link to and to seek legal advice if they are concerned about incurring liability for someone else's statements.