Are expensive libel cases on the way out?

CROSS POSTED ON BYLINE.COM

Some fascinating new  official figures  showing a startling decline in the number of new libel cases have been  revealed on the excellent media law blog Inforrm.

They show a 40 per cent drop in the number of new libel claims in the Royal Courts of Justice between 2014 and 2015 from 227 to 135. Admittedly 2014 had a large number of  new cases but the blog points out that there has been a steady decline in libel actions since 1992. You can read the blog and see the statistics  in full here.

The introduction of the new Defamation Act is the biggest change to libel in the last two years which aimed to reduce the number of claims by establishing ways of settling issues without coming to a full trial in court.

The jury is still out on how effective this new legislation is. But it appears that the huge cost of mounting a libel trial and a cap on damages that will be awarded to the person defamed has had a chilling effect.

As the blog said: ” Even with costs budgeting, both parties’ cost of a libel case taken to full trial are likely to be of the order of £700,000 (for example, Stocker £682,000; Yeo£716,000).

Damages are effectively capped at £275,000 for the most serious possible libel (see Barron v Vines [2016] EWHC 1226 (QB)) but, in practice, even after a contested trial awards rarely exceed £100,000.

It has also been suggested that the Reynolds qualified privilege defence (now “Publication on Matter of Public Interest” under section 4 of the Defamation Act 2013) has, by encouraging journalistic responsibility, reduced the number of egregious libels and so the number of actions.”

Frankly this is all good news for bloggers who are threatened with libel cases from big and powerful commercial interests and powerful figures. Are they going to spend up to £700,000 with all the attendant publicity of a trial to take on a blog when the most they could get back might be less than £100,000? And they would have no chance of recovering their money either.

What this doesn’t disclose is whether the rich and powerful are using other means to silence critics particularly bloggers. This big drop in cases has been accompanied by a big rise in the number of people using the ” right to be forgotten ” imposed by the European Court to get Google to remove serious criticism of individuals from its search engine on the net.

This is a far cheaper and effective way of silencing critics. As Inforrm  reported earlier :

” Large numbers of delisting requests are now being made under the Google Spain ruling. Google’s most recent transparency report indicates that it has received 400,564 removal requests and has removed 42.6% of URLs covered by them.  Google has received 48,979 requests from the United Kingdom and has removed 184,115 URLs (38.6% of those requested).”.

Given the internet is peppered with defamatory statements about people could this be a new and more secretive way of silencing criticism? It avoids the publicity of a libel trial and there appears to be no appeal and  no easy way of knowing this has happened.

Could this be the new way -arguing privacy – the rich and powerful stop legitimate criticism and damning disclosures about their past?

The European Court of Human Rights: A judgement that wrecks free speech

The European Court of Human Rights has done itself no favours with bloggers by upholding an absurd  and  outrageous judgement making websites liable for any comment published on their sites.

As  I reported over a year ago the court had already ruled  that judges have made the extraordinary decision to hold news sites and blogs legally responsible for all the comments put up on their site even if they take them down after a complaint.
Effectively it meant that any offended party can pursue a news organisation or blog for any defamatory comment made about them EVEN after it has been removed from the website.
The ruling follows a dispute after a said to be respected Estonian news organisation,Delfi,ran a piece about a ferry company making controversial changes to its routes. The changes to remote Estonian islands attracted widespread criticism including an attack on their owners from anonymous bloggers who put comments on the site. A major shareholder in the company took offence at the comments and decided to sue. The website took them down but the owner decided to pursue the site – not the commentators – saying it should be legally responsible for checking every single comment before it is published..

Now the grand chamber of the court has upheld this absurd decision – saying that it is up to professional bloggers to legally check any comment before it is public – effectively saying they should act like Mystic Meg in predicting whether any comment is offensive. Not surprisingly this has attracted a vehement response in the United States and Europe who see the ruling as dangerous and damaging to free speech. Both the respected Inforrm blog and a US website Techdirt have issued particularly harsh criticism.

Techdirt describes the decision as a disaster for free speech and the decision as ” absolutely crazy”.

The only exceptions to this ruling appear to  be internet forums and people who run their websites as non commercial ventures or as the judgement says ” as a hobby”. The only reason for this is evidently the judges thought people with hobbies shouldn’t be expected to have to employ lawyers to check their every move. But ” freedom of expression” should not be confined to those who have hobbies.

The main effect according to one of two dissenting judges would amount to :” an invitation to self-censorship at its worst.”

Luckily the UK has a Defamation Act that does the opposite – putting the onus on the people who post comments not the website and has procedures to sort out a dispute.

But it would only take one wealthy, vindictive person angered by a comment to go to the ECHR citing this judgement. And then we would in for a battle between British law and the European Court ruling.

Frankly if Michael Gove, the justice secretary, got hold of this judgement – he would have a good case to damn the court. And in this case he would be right.

Ministry of Justice:Flogging prison expertise to Saudi beheaders and floggers

Chris Grayling: Selling British prison expertise to Saudi beheaders and floggers

Chris Grayling: Selling British prison expertise to Saudi beheaders and floggers

The nasty and brutal punishment (1000 lashes) being meted out to Saudi blogger Raif Badawi is rightly being condemned by human rights groups across the world.

What may not be so well-known  is that the British government is currently negotiating to sell prison expertise to the  repressive Saudi judicial regime to make money in order to cut the deficit for the taxpayer.

The man championing this move is none other than Chris Grayling, the justice secretary, well-known for wanting to deny prisoners books and an enthusiastic backer of longer prison sentences and tough prison regimes.

Quietly he has set up a commercial arm of the Ministry of Justice called Just Solutions International. You can download a glossy brochure here.

Mr Grayling is passionate about this. At the launch of the social enterprise he said:

“We are leading the world in our management of offenders and the reforms we are introducing will push us even further ahead of the pack. I’m proud that countries look to us when they want to improve and develop their own systems.”

“This social enterprise will build on our global reputation for innovation while getting best value, as any profits made will be put directly back into improving our own justice system, making it a win-win for hardworking taxpayers.”

What we didn’t know then was where Britain was selling this expertise. However just before Christmas the Ministry of Justice released an interim report on its progress.

It revealed as I report in Tribune :

” JSi submitted a £5.9 million proposal to the Kingdom of Saudi Arabia, Ministry of Finance to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service.

Also in August, JSi submitted a large-scale bid to the Royal Oman Police (ROP) proposing assistance for the design of a new prison. Discussions are currently taking place with ROP about further learning and development training programmes.”

The document states that Chris Grayling visited Saudi Arabia last September to sign a memorandum of understanding on judicial co-operation with the regime and promote British legal services and Doha in Qatar to promote co-operation. A junior justice minister, Lord Faulks, visited Kazakhstan and Kyrgyzstan during October, both also seen to be repressive regimes, and signed a memorandum of understanding on judicial co-operation in Kazakhstan.”

I put this to the Ministry of Justice. This was their reply: ” “It is ridiculous to suggest that providing overseas governments with assistance in the development of their criminal justice systems demonstrates support for such atrocious acts. It has been government policy for many years to work with overseas governments and help them develop their criminal justice systems.”

Really! Some people might think the Saudis will be taking comfort from such British support and personal visits from Chris Grayling while continuing these barbaric acts. Also is there not an ethical matter whether the British taxpayer wants the deficit reduced by making profits from a regime that tortures,  publicly beheads ( some 59 in first nine months of last year) and flogs people? It could be said to amount to blood money.

Frankly it suggests that Mr Grayling’s main aim is making money and he couldn’t care about the regimes who pay us and how they treat their own citizens. It also hypocritical. we are condemning ISIS for the same practices. Would Mr Grayling – if ISIS win – be happy to flog them the same British help for running their justice system in the Islamic state?

Also just how wonderful is the British prison system that we are selling. If you look at reports from the Howard League for Penal Reform we have huge problems with overcrowding, suicides and a repressive attitude by Grayling himself. Do we want to export that?

I am wondering how ridiculous the blogger Raif will think it is that the  system that incarcerates and flogs him benefits from British expertise to make money. I also wonder whether Mr Grayling – a  cold hard right Tory – was or is  a supporter of hanging and flogging himself.

Since this blog was published The Justice Secretary, Chris Grayling, defended to the BBC the sale of British prisons expertise to Saudi Arabia.

Speaking to Andrew Neil one the Sunday Politics Mr Grayling said: “It is right and proper that we as a nation try to work with other nations to improve their systems.”

 Saudi Arabia has been widely criticised, including by the British Government, for sentencing the blogger Raif Badawi to 1,000 lashes and 10 years in jail.  Mr Grayling said he “completely condemns” the punishment.

He added: “This is something I am looking at very carefully.”

Amnesty International campaign poster for rasif Badawi

Amnesty International campaign poster for Raif Badawi

My blog in 2014 : Over 182,000 hits – now over 500,000 since it was launched

The WordPress.com stats helper monkeys prepared a 2014 annual report for this blog.

Here’s an excerpt:

The Louvre Museum has 8.5 million visitors per year. This blog was viewed about 180,000 times in 2014. If it were an exhibit at the Louvre Museum, it would take about 8 days for that many people to see it.

Click here to see the complete report.

Thanks to all who are following  and reading this blog . It both covers and comments on the stories I and others write for Exaro, particularly on child sexual abuse, and my regular pieces for Tribune magazine. I highlight my own investigative stories covering local government, the NHS, privatisation, the media and Whitehall. These focus on injustice, inequalities and a fair share of hypocrisy behind bland press releases and ” cover ups” by the government and private companies. More of these are now coming from people who contact me on the site.

It aims to be hard hitting and you’ll find I don’t hold back .You will also find the occasional travel piece as a bit of light relief – though I can’t resist investigating some of the travel firms.

European Union seeks ” the right to be forgotten” web ruling to apply world wide

An important development over the battle of the ” right to be forgotten ” is highlighted in a report on the influential Inforrm blog.

The row centres round the European Court of Justice’s decision to allow people to get search engines to  remove references to them in their past even if all the facts are true.

The decision arose after a Spanish worker wanted information deleted from searches showing he was connected to a property auction to pay off social security debts in 1997.

The court decided that his privacy was infringed by people being able search out such information and the decision immediately led to 41,000 people, including a paedophile and a former MP, asking search engines to do the same for them.

However as nearly all the major search engines are American, Google, the biggest search engine, decided to only remove it from its EU sites and people could  still search the same information by logging on to an American site.

Now an EU working party wants this banned. It has ruled as Inforrm reports:

limiting de-listing to EU domains on the grounds that users tend to access search engines via their national domains cannot be considered a sufficient means to satisfactorily guarantee the rights of data subjects according to the ruling. In practice, this means that in any case de-listing should also be effective on all relevant domains, including .com”.

In other words, the Working Party has confirmed that …the attempt of Google to exempt its search engine at Google.com from the “delisting procedures”is misconceived.

To add to this the EU working party has said there will no requirement to tell the person who provided the information that this has happened – so bloggers and media groups will just suddenly discover that the article has disappeared in any searches – worse than just going behind a pay wall.

The groups does give data protection controllers much needed guidance on whether such listings should disappear – including information on whether the person is a public figure or a criminal. And it does not appear to extend to companies either.

However I am afraid I have little sympathy with any removal if the facts are true. I still see this as an attempt by people to cover up their past. It might be right if the information is a pack of lies but there are other ways to deal with this. It seems to me another restriction on freedom of information.

Citizen bloggers to get new protection to investigate public scandals

The Information Commissioner is to put bloggers on the same footing as professional journalists allowing them to gather information on individuals and public services without fear of being challenged under the Data Protection Act.

 I am indebted to this article on the excellent Inforrm blog today which reveals that the Information Commissioner has put out new guidelines to the media for consultation.

The proposals are particularly important after a series of outrageous attempts notably by Barnet Council to force local bloggers to have to register with the Data Protection Act. The aim was to force people to register so council officials and councillors could demand to know what information was held on them. Luckily they failed. This change will make it impossible for councils like Barnet to even contemplate such action.

The relevant parts -outlined in the proposed guidelines- are to exempt journalists and bloggers from the requirement to provide such information if  they are pursuing a story in the public interest.This exemption allows journalists to mount a public interest defence to most apparent breaches of the Data Protection Act but it will be easier to rely on the exemption.  This states:

  • As long as the aim is to publish a story (or for someone else to publish it), all the background information collected, used or created as part of investigation can also be exempt,
  • The  proposed rules also allow bloggers as well as journalists – if they were forced to hand over information- to redact any information which could lead to the source being identified..
  • Information about someone’s health, sex life or criminal behaviour should only be collected if the journalist is very confident the public interest overrides their right to privacy.

These changes along with the new Defamation Act should be welcomed by everyone. It amounts to official recognition that the world is changing and that public bodies, whether it be your local council, hospital, or, as is increasingly the case, private companies running public services that they should expect to be heavily scrutinised. It also serves as a warning to directors of private companies, arrogant councillors, and insensitive public providers, that they will not be able to bully active citizens who want to probe their activities and they will not be able to force the disclosure of sources or information that led to their exposure. consultation on the new guidelines from the ICO ends on April 22nd.

Defamation Act 2013: A sensible balance or a step back? – Philip Steele

Bloggers – this is a very succinct guide to the new defamation act which can into force on January 1. He makes some interesting points – like nobody can bring a defamation action if they do not act within a year. Honest opinion also replaces fair comment – which will protect bloggers with strong views which they can justify and the definition of public interest is widened with the courts having wider discretion. There is new defence of truth rather than justification- giving bloggers the right to show why they believe their statements are truthful. Altogether this seems good news, though the lawyer who wrote this piece seems to be looking for more complications. But he is a lawyer after all!

Inforrm's Blog

Philip-Steele-websiteThe Defamation Act 2013, which came into force on 1 January 2014, is a missed opportunity to provide clarity over precisely which elements are required in order to establish a claim for defamation. The courts have, over the years, made numerous attempts to define what is defamatory.  But Parliament missed the opportunity this legislation provided to bring clarity to the issue.

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