Some Friday food for thought on FoIs, which happens to coincide with David Higgerson’s similarly themed weekly post.
Francis Davey, an independent barrister who advises technology and media companies in computer and internet law, raised an interesting issue on his blog a couple of weeks ago.
What happens when a Freedom of Information response is libellous? He refers to the site WhatDoTheyKnow.com, which has built a system to publish WDTK users’ requests and resulting communication between the user and the public body in question.
Naturally, the site has to be careful about the requests and the additional annotations made by third party commenters, but what if a libel is contained within a report released under FoI? Davey writes:
The difficulty is the classic chilling effect. WDTK are in no position to decide whether the briefing report is libellous, or whether their publication of it is defensible under some general libel defence — for example under public interest “Reynolds” qualified privilege. Unlike the commercial news media, who can take a view that profit made from publication is offset by the occasional loss of a libel suit and have the funds to insure against defamation claims, WDTK is a charity funded, volunteer run site. They are in no position to take the risk which means they cannot as robustly defend the public interest in freedom of information as they would like.
He makes several other points which are definitely worth a read in full, and while Davey believes that common law might cover this situation, he proposes adding an exception for the publication of material released under FoI to part II of Schedule 1 of the Defamation Act 1996.
I’d be interested to hear from media lawyers with any thoughts on this issue.