Lawyer Mark Stephens says not. Stephens, who is a partner at Finers Stephens Innocent, and sits on the board of Index on Censorship, says that the libel values of yore “don’t apply in the modern era”.
Speaking on a panel at last night’s Online News Association / Index on Censorship ‘Bloggers in the Dock’ event, Stephens argued for the “innate good sense of crowds”. If a forum or site hosts all forms of opinion “we are then able to make up our minds about the issues of the day”.
He used the example of the Gina Ford / MumsNet fall out as an example of where forums could provide different points of view (Stephens’ firm represented the parenting site in the dispute: MumsNet apologised and paid out a five figure sum to Ford but did not accept liability). There was nothing that was libellous in there, he claimed. “I felt at that point libel laws had fallen into disrepute,” said Stephens.
“Human beings are basically decent.” Ultimately self-censorship wins, he said: “[T]he voices of reason will say that’s wrong, don’t say that”.
“I think what we should be saying is speech meet speech,” he argued.
Looking ahead, Lord Lester’s bill was likely to meet its fate and be “killed”, when this government take it forward, Stephens continued. He would place £50 on Lord Lester’s bill being “parked”, and a more “astringent” Conservative version replacing it, he said.
Sile Lane, from Sense About Science (pictured right), was more confident and said “it’s all to play for”. She talked about the organisation’s research into the legal threats for bloggers.
“They back down and withdraw material more often than not when faced with a threat.”
Lane is planning to present her material to the Ministry of Justice and urged other online writers to get in touch via LibelReform.org.
Dave Osler, who underwent a three year legal battle when he was sued by the political activist Johanna Kaschke, provided a walking case study of the lengthy libel process.
His partner, in the audience, argued that the process itself needs to be addressed: “once you’re sued, you can’t get out of it,” she said.
Dr Evan Harris, former MP and libel reform campaigner, mooted the idea of ‘early strike out’ when there was a public interest defence but said the lawyers he talked to about the issue were divided and sometimes even changed their own minds.
The idea of a libel tribunal was shouted down by Mark Stephens, who said that claimant lawyers claiming to back this idea were making “strawman” arguments and that such a system wouldn’t really be in their interest.
Lawyer and blogger David Allen Green, while challenging Stephens on a number of his other points, agreed that tribunals would be a “bad” thing.
Green pointed out that BCA v Singh, the case that brought the libel reform campaign to the fore, started with a tribunal type meeting and it resolved nothing because the parties disagreed on meaning.
More useful, he said, would be the possibility of keeping libel cases out the High Court and pursuing them in County Courts, for example.
While the evening’s discussion provided a lively libel reform debate, the basic concept of ‘Blogger in the Dock’ wasn’t really directly addressed.
During the debate David Allen Green raised the issue of the blogger’s defence and mass online publication. Perhaps for Bloggers in the Dock round 2 (in the pub, or virtually) we could address these aspects specifically:
- What would strengthen a blogger’s defence in a libel case, or privacy breach?
- How does a blogger perform a quick check to assess the basis of legal threats they receive?
- Should there be some mechanism by which bloggers can seek cheap and fast legal advice?
- Do the courts need to view forums, individual blogs and newspaper sites in different lights? Or is the medium of publication irrelevant?
- How far should we shoot the messenger? (ie. the ISP / search engine) For example, how should a court treat ‘suggested search terms’ that can repeat defamatory statements, or statements that breach an injunction?
- Mark Stephens talked about meeting speech with speech: should a publisher take it upon him or herself to introduce balancing views in a forum discussion?
- What about harrassment online? How have the police dealt with internet harrassment crimes? Is enough done in this area?
- Is there any point in issuing injunctions when they can be so easily broken online? Or have already been broken online? If one is issued to one media house, who should know about it?
- Does Contempt of Court law need reform, considering bloggers might be writing about, or moderating comments, for cases in which they have not seen court orders?