WITN?: In sort-of defence of Britain's ridiculous libel laws

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justiceI’m writing this from the ‘club section’ (whatever that is) of San Francisco’s AT&T Park where, if I understand the scoring correctly (I don’t), the Cubs are leading the Giants 4-1. I’ve just eaten my second hot dog and I’m debating whether to buy a baseball cap emblazoned with the words ‘Go Giants’. I also just turned to my British friend Andrew to make an amusing American pop culture reference, prefacing my observation with the word “dude…”.

I mention all of this for two reasons. First, I hope it will make you understand why my column this week reads like it’s been written by a man distracted by the fear of at any minute being beaned by a baseball, and second so you’ll appreciate all of the efforts I’m making to Love America.

You see, over the past weeks I’ve realised how sensitive you former colonials are to foreigners opining on any aspect of your country, particularly if we compare it to our own. Almost two weeks after Techcrunch 50, I’m still getting hate mail over my post suggesting that your flag be moved two feet from the stage to the main floor. Much of the abuse glosses over the issue at hand and focusses instead on the indisputable fact that I am a freedom-hating socialist who would gladly see the American flag used to mop up the blood of terrorist martyrs. (Weirdly this is an accusation that I’ve heard far more frequently since joining TechCrunch than when I worked at the Manchester Socialist Guardian of Kabul.)

So again, then, let me clarify that I love America. If there were a baseball game between the Terrorists and America, I would be as crestfallen as the next man were the Terrorists to win. Ok? Are we cool, America? Good. Now hopefully I can safely and rationally talk about the differences between the British and American systems of libel law. In particular the fact that, whatever Michael Arrington might say, Yours might not be better than Ours.

More than enough has been written about Techcrunch’s – and Arrington’s – run in with UK defamation law, but I’ll sum it up in a nut for newbies. Back in July a former TechCrunch UK editor called Sam Sethi sued TechCrunch, and Arrington, over a Crunchnotes post titled ‘The Fact And Fiction Of Sam Sethi‘. In the post, Arrington recounted the sorry tale of Sam’s departure from TechCrunch and subsequent founding of a rival blog network called BlogNation. It’s a story of lies, money, spectacular mismanagement and ultimately abysmal failure – a story eerily close to my own, but without the scorned women and prison cells.

But whereas my story ended with pseudo redemption, and an – ahem – bestselling book, Sam’s ended with denial, rage and him bringing a ridiculous libel suit – brought in the English courts – against TechCrunch. Advised by lawyers that it would cost upwards of half a million pounds ($750,000) to defend the case in the UK, Arrington and Techcrunch declined to participate, leading – ridiculously – to a default judgment in Sethi’s favour.

You can understand then, why, Michael might have issue with the libel system in the country of my birth. And it gets worse: shortly after the judgment, documents came to light which showed that Sethi should never have been running BlogNation in the first place. Following the collapse of a previous business, he had been barred from being a director in England and Wales but due to an administrative fuck-up, this ban hadn’t been entered onto the statutory database. The situation has now been remedied and yet, despite the ban and the fact that Sam has apologised to Arrington and admitted fault, the judgment stands, effectively preventing Michael from visiting the UK.

And yet, and yet…

Reading Arrington’s post on the subject – entitled ‘UK Libel Law Is Out Of Control. We Know From Experience‘ – I can’t quite bring myself to entirely agree with him. Not about the Sethi stuff – Sam lied repeatedly to me and everyone else about being struck off as a director, and so deserves every bad word Michael says about him – but rather with the wider argument that libel law in the UK is in complete disarray because it allowed a UK litigant to sue an American citizen and website over something published online from the US.

Libel tourism gone mad! Wither freedom of speech?!

Hmmmm.

Like most legal issues, it’s actually a bit more complicated than that. Sethi is a British citizen who was – in his deluded mind at least – libeled by a website published in the US, but available to read – obviously – in the UK. For that reason there is, prima facie, absolutely nothing wrong with his bringing his ridiculous and pointless action in the UK courts.

After all, thanks to the Internet, he was defamed (in his mind), on British soil where he has a (I’m trying here to channel my laughter through my keyboard as I write these words) reputation to defend. Libel tourism – where a foreign litigant can sue a foreign publication on British soil because one copy of the publications was sold there – is evil, but that’s not what’s happened here.

This is an unpopular point of view, even amongst my own countrymen, but I actually quite like the harshness of British libel law. For a start it puts the burden of proof on the person making the libelous statement. If you accuse me of being a bad guy then it’s up to you to prove it’s true. If you can’t, you lose. And the penalties for losing are harsh: really harsh, which is how it probably should be. Unlike me, most Brits care about their reputation and standing in the community, and it’s hard to put a value on its loss.

Really, when it comes to freedom of speech, it’s America that has the more ridiculous system. Thanks to the First Amendment and a presumption in the US that public figures are fair game, I am free to make up almost any bullshit I like about an American in the public eye without him being able to sue. “Michael Arrington fucks swans!” See, there you go. It’s actually kinda fun! And thanks to the Internet, Arrington’s fictitious swan-molesting ways will soon be known to the world. Hell, if TechCrunch is a credible source, they might even make it to Wikipedia. God Bless America.

Really the Sethi vs Techcrunch case has nothing to do with freedom of speech and everything to do with how ridiculously cheap and easy it is for a delusional litigant to bring a nuisance lawsuit in the UK against a journalist who is telling the truth. A journalist who then has to spend a small fortune defending the action. If the defendant is from outside the UK then their only real choice in these circumstances is to decline to participate, leading to a criminally unfair judgment against them. If they’re from the UK, their best hope is to settle and hope to keep their house. Either way, the delusional litigant wins, and the truth loses.

Again, though, we’d struggle to look to America and find a better system. It was you people, after all, who gave the world the idea of no-win-no-fee lawyers: bloodsucking ambulance chasers who will gladly help me sue McDonalds for making their coffee with boiling water, rendering it unsafe for me to pour over my baby’s head. In most cases outside of libel, defending a nuisance lawsuit in the US is just as expensive, and just as pointless as it is in the UK. If our system is a mess then so is yours.

Also, it’s all too easy for Americans to criticise our system without suggesting a better one. It’s like those people who stand on street corners yelling “stop the war” or “free healthcare for all” or “swans don’t put out” without demonstrating how they would solve the problem if they were in charge. Those who suggest that Britain would be better off with a US First Amendment style system are just plain wrong. Particularly in the Internet age, lies can get halfway around the world before the truth has found a decent WiFi connection. For that reason we need a system whereby liars are scared shitless from posting untruths in the UK, lest they find themselves in front of a bewigged judge capable of handing down an almost unlimited fine. It’s the only language these people understand.

So what is the solution to improving the UK libel system? As always, I have the answers…

First, we needs an immediate ban on no win no fee lawyers in all but means-tested personal injury claims. If a litigant really thinks they have a claim against a publication – foreign or domestic – then they need to put their money where their reputations is. If they can’t do that then you might ask what value they put on their reputation in the first place.

Second, it’s ridiculous that litigants can sue individual journalists when their work appears in professionally edited publications. In Arrington’s post, he referred to the case of Simon Singh, a British journalist who was sued personally by the British Chiropractic Association for an article he wrote in the Guardian. The BCA chose to sue Singh personally rather than the Guardian, thus exposing the reporter to personal ruin no matter whether he successfully defends the action or not. Only a mentally retarded chimp would think that’s fair.

Third, libel tourism could be wiped out at a stroke if there was a requirement for litigants bringing action under English law to actually be British citizens. This wouldn’t have helped in Sethi vs Arrington, but it would certainly deal with the vast majority of outrageous abuses of jurisdiction.

But by far the most important change that needs to be made to English libel law is to scrap the so-called ‘multiple publication rule‘. This is the decision, made by the English courts in 1849, that every time a publisher makes a new copy of a libelous article, they are considered to have republished – and repeated – the libel. Which is important because English law imposes a statutory limitation of one year after publication for someone to bring a defamation action.

With the advent of the Internet, the multiple publication rule has caused havoc. In the eyes of the law, every time a user accesses a copy of an article published online, the act of the publisher’s web server delivering it is considered to be a republication. In other words, as long as something remains in an online archive, it is constantly being republished and there is no time restriction on someone suing over it.

This is how Sethi was able to dither for well over a year after Arrington’s ‘Fact and Fiction’ post was first published before taking action, and it’s why the UK remains such an attractive place to bring a libel suit. Without the multiple publication rule, his suit against TechCrunch would have come too late, and been thrown out before it even started.

The good news is that the English justice system is already – forgive the pun – on the case. Earlier this month, the Ministry of Justice began a consultation over scrapping the multiple publication rule. In its place they are considering a single publication rule – where the clock begins ticking when the libel is first published, and stops either one or three years (they haven’t decide yet) later. After that, publishers who keep articles archived electronically would have what’s called a ‘qualified privilege’ defence where they couldn’t be sued for leaving what they believe to be accurate statements online after that time.

If the consultation results in a change of law then it won’t solve the problem entirely – the UK still needs to get rid of no-win, no-fee lawyers and to clamp down on no-British litigants and the suing of individual journalists – but it would be a major leap forward. One which would have stopped Sethi in its tracks and move the British libel system closer to being The Best In The World.

And this, America, is where you come in. If like Arrington, you think the English system is screwed, I urge you to get involved in repairing it. The Ministry of Justice has published a list of questions that it wants your answers on here. Go answer them; pretend you’re British if you have to.

I’ve already sent in my answers and I’m going to do my best to convince Arrington to do the same when he gets back from vacation in Hawaii.

Or at least he claims he’s on vacation. Do they have swans in Hawaii?

Just saying.

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