The Institute hosts an online journal, the Internet Policy Review, which is exactly the type of open access publication I think universities should be cultivating, with an efficient and thorough peer review process.

They kindly published my article this week, which discusses the nuances of the chilling effect and presents some of the data from my surveys conducted during 2013, among bloggers and hyperlocal publishers.

I’m very grateful to all the participants in my survey who informed this article and my wider doctoral research. I am thinking about publishing the data in due course on this blog in a different format (perhaps separate from the analysis). I would welcome any thoughts and suggestions.

Thanks to the IPR and to Julian Staben, a fellow chilling effects researcher, for the original invitation to Berlin (one research highlight of that trip was discovering that there is no simple translation for the ‘chilling effect’ in German).

A few of the key points from the IPR article, which can be read in full here, are set out below:

The article presents findings from online surveys among over 200 journalists and ‘hyperlocal’ and community news bloggers in England and Wales, which explored their legal resources and support, the impact of libel and privacy on their work, direct legal experiences (such as receipt of a threatening letter), and their overall perception of the chilling effect over a five year period (2008-12).

• The surveys expose a spectrum of interpretations; at one end respondents appear unaffected by libel because of their ignorance and lack of awareness of the potential risks; at the other there is even evidence of excessive self-censorship because of their legal knowledge and experience

• In the general survey,  under 10% of respondents had access to legal advice for their own publication or website, compared to just under half of the journalists and online writers contributing to third party publications. Only a very small number have media law insurance for their own publication, either a personal blog or more substantial operation: 3% in both general and hyperlocal groups

• Broadly speaking, hyperlocals seemed less affected by legal issues than respondents in the general sample and were more likely to say that they don’t ever change or abandon stories because of libel and privacy

• The surveys suggest that the majority of encounters with defamation and privacy law take place outside the courts, with few formally recorded legal actions brought against publishers

• The hyperlocal sample indicated that unofficial claims were being resolved in ways that did not involve court. Of the small minority that reported libel threats, most were not pursued further by the complainant

• The data indicates that the number of journalists and bloggers changing or abandoning material is greater than the number actually receiving threats of legal action, with a small minority experiencing a formal claim issued in court

• There is no one ‘chilling effect’. Despite its generalised use in relation to libel in media and judicial discourse, it clearly means different things to different people. While the chilling effect is very real to some writers, they interpret it in different ways, offering definitions based on variable components, such as access to resources, legal knowledge and personal experience

The article offers suggestions for future research and policy initiatives. There is, for example, scope for further systematic and comparative research to develop this analysis of the chilling effect, especially in a globalised media environment. In regards to policy development, there is a need for innovative public legal education and training initiatives for members of the public and online writers; and the development of more proportionate and relevant libel and privacy dispute resolution methods for small and individual publishers.

Read article in full here (including a note on methodology)

When: Saturday 26 October 2013, 10:00 – 19:00

• Part 1 – Michaelmas Term 2012
• Part 2 – Hilary Term 2013
• Part 3 – Easter and Trinity Terms 2013

The Guardian is attempting to overturn the Attorney General’s veto of the publication of Prince Charles’ correspondence with seven Government departments. An application for judicial review was heard over two days last week by the Lord Chief Justice, Lord Judge, with Lord Justice Davis and Mr Justice Globe.

Full Law and Media Round Up – 13 May 2013 at Inforrm’s Blog.

Draft Royal Charter, Clauses 22-23, Schedule 3 (my emphasis):

22. The Board should provide an arbitral process for civil legal claims against subscribers which:

a) complies with the Arbitration Act 1996 (“the Act”);
b) provides suitable powers for the arbitrator to ensure the process operates fairly and quickly, and on an inquisitorial basis (so far as possible);
c) contains transparent arrangements for claims to be struck out, for legitimate reasons (including on frivolous or vexatious grounds);
d) directs appropriate pre-publication matters to the courts;
e)    operates under the principle that arbitration should be free for complainants to use;
f) ensures that the parties should each bear their own costs, subject to a successful complainant’s costs being recoverable (having regard to section 601 of the Act and any applicable caps on recoverable costs);
and g) overall, is inexpensive for all parties.

23. The membership of a regulatory body should be open to all publishers on fair, reasonable and non-discriminatory terms, including making membership potentially available on different terms for different types of publisher.

Additionally, the Crime and Courts Bill discusses the effect on costs as a result of participation – or non-participation – in an arbitration scheme.

The discussion among small publishers has mainly been around the compulsory membership aspect of the new legislation proposals, and the penalties for not participating.

But there are also important questions around opting-in and joining the regulator, in order to access the free arbitration services: who should be able to and what type of media output would be included? At what stage of a complaint could a publisher join a regulator*?

And if a publisher can’t access these services, what are the other ADR options, and what would incentivise Claimants, as well as Defendants, to participate?

Further reading on ADR and arbitration:

• Index on Censorship / English PEN Alternative Libel Project
• Early Resolution arbitration
• Lawyers for Media Standards: ‘Serious concerns about Royal Charter arbitration scheme’
• Leveson: Inquisitorial Arbitration – Ned Beale and Cara Gillingham
• Carl Gardner: ‘Why press regulation should cover blogs’
• Carl Gardner: ‘Costs protection for regulated publishers in the Crime and Courts Bill: a small analgesic’

*Also see this post on the LSE Media Policy Project blog, where commenter (and mediator) Simon Carne suggested: “there is no reason why it [membership] couldn’t be applied (or, if necessary, extended) to permit some classes of members to join when the need for arbitration arises“.

There will be a two week break over Easter, after which normal service will resume. If you have any additions or listings please do drop me a line.

The full project title is: “The Defamation of Companies: Free Speech, Public Protection and the Economic Consequences of False Statements upon the Value and Reputation of Companies”. Application details available here (deadline: 19 April 2013)

Applications are invited to a three-year PhD Studentship in Portsmouth Business School, starting 1 October 2013.

Defamation compensates injury to reputation through the spreading of false statements. The English common law has recognized that companies have a reputation to protect, and therefore standing to bring defamation claims. A false statement about a company such as claims about the safety of its product, its treatment of workers, or sourcing of goods, can have adverse impacts upon its share price, income and corporate image. Yet theorists have claimed that unlike individuals whose reputation is damaged, and who may seek defamation to protect their honour and dignity, corporate reputation is a property interest linked to such business concepts as ‘goodwill’ and company value.

Calculating such damages is likely to result in more substantial award of damages than that associated with individuals, and this poses a major problem for groups and individuals who wish to hold companies to account for poor ‘corporate practices’ who may be deterred by companies using defamation SLAPP suits to stop criticism. Such suits undermine the freedom of speech of campaigners and has led to the adoption of anti-SLAPP suits in many US states, whilst in Australia the right of corporations to sue has been removed completely.

Concerns over anti-SLAPP suits and the deterrent effect of large damages awards in cases of corporate libel have been raised in regards to the recent debate on defamation reform in England. The current version Defamation Bill addresses this issue only through the new general requirement that requires all defamation claimants to prove the ‘publication has caused or is likely to cause serious harm.’

The aim of this research is to evaluate whether corporations should have the right to sue, and if they are to do so how should damages, or “serious harm”, be calculated, and can this be done in a manner which does not deter civic society organisations and individuals from criticising or monitoring corporate activities.

The research is expected to adopt a number of methodologies to address these questions:

• Examination of case-law and commentary to understand why companies were permitted to sue for defamation in the first place and how this law has developed.
• Examine the underlying theories of defamation/reputation (such as Howarth 2011).
• Use empirical data collection relying upon a series of event studies of alleged libels of companies (such as Vick and Campbell 2001)) to assess the long-term economic and reputational interests upon companies, comparing these with event studies of corporations whose corporate misconduct have been proven.
• Undertake a comparative study with countries which have amended their libel laws to introduce SLAPP suits and prohibit corporations from suing to see if this has any impact upon the reporting of corporate malpractice.
• Review the adequacy of alternative mechanisms of protecting corporate reputation including other legal actions like malicious falsehood and methods employed by reputation management companies.

Full details at this link…

• Part 1: January – April
• Part 2: May – August
• Part 3: September – December

And if you fancy a challenge and have been an avid follower of all things libel, privacy and Leveson over the past 12 months, check out the Inforrm Media Law Quiz of the Year. The reigning champion (two years in a row), Benjamin Pell, is quiz master.

Happy new year.

Full Law and Media Round Up at Inforrm’s blog…