ChristopherWhite.info

Blimey. You go away for two weeks and the internet gets shat on (one more time).

To recap for anyone (else) who has been living under a rock: Uzbek billionaire and owner of a fat slice of the Arsenal pie Alisher Usmanov announces that he wants to increase his stake to 25%. Craig Murray, the UK’s former ambassador to Uzbekistan — who knows a thing or two about Usmanov — suggests on his blog that he’s a horrific, violent criminal. Usmanov takes exception to this, and has his lawyers Shillings send various threatening letters to Murray’s web host, Fasthosts, who duly pull down Murray’s site, Tim Ireland’s Bloggerheads site, which had repeated Murray’s allegations, and caused collateral damage to others sub-letting server space, notably Boris Johnson.

The blogosphere, unprecedentedly united, rightly agreed that this wasn’t on.

Probably nobody is entirely shocked at the actions of Usmanov or of Schillings. It is, after all, a fairly natural thing for both the oligarch and a firm of libel lawyers to do. Fasthosts on the other hand have capitulated far too easily — and yet who can blame them when the mainstream media act in exactly the same way?

The current Private Eye — a periodical all too familiar with libel writs — has two stories on Saudi billionaire Khalid bin Mahfouz. Two months ago Cambridge University Press pulped the book Alms for Jihad: Charity and Terrorism in the Islamic World, which repeats claims by the US treasury that his charity funded terrorism. Mahfouz insists this is a defamatory statement on the grounds that he wasn’t involved in running the charity.

The Eye reports that over the summer the Spectator was to run a piece about Mahfouz by Brendan O’Neill, which

‘…listed all the pulped titles and concluded that this Saudi billionaire is “almost single-handedly determining what we Brits may read and hear about contemporary terrorism”. One thing Brits may not read, alas, is O’Neill’s piece: it too was spiked at the last moment!’

And that two weeks ago Nick Cohen wrote his Observer column about Mahfouz, only to have it spiked after “a fit of legal collywobbles”.

It’s an editor’s job to report on people like Mahfouz — or like Usmanov. If they’re not defending their right to publish journalism in the public interest, it’s too much to expect Fasthosts to do so. (Though given the nature of the allegations it’s not a massive conceptual leap to imagine that the Observer and Spectator were more concerned about getting Jihaded in the face than being sued.)

The judges aren’t helping either. The other story in the Eye tells how Mahfouz has brought a defamation claim against Dr Rachel Ehrenfeld over her book Funding Evil: How Terrorism Is Financed and How To Stop It. Now, in British libel law, to bring an action in the UK there has to be a publication in the UK (this unfortunately includes websites hosted on US servers but viewable here). Funding Evil was published by an American house, with no British edition or promotion in this country, yet Mr Justice Eady ruled that the matter can be dealt with in London’s courts because 23 people imported the book via Amazon, and, because Ehrenfeld refused to acknowledge UK jurisdiction, then ruled in favour of Mahfouz by default. (It’s a shame that Ehrenfeld is trying to get this dealt with in an American court: on appeal in the UK it seems likely either that she’d get the case thrown out or probably win.)

The other questionable case law is one which is directly relevant to this business with Usmanov. Godfrey v Demon, in which it was established that web hosts are liable for defamatory material on their servers, is detailed by the Ministry of Truth. This is now used as a basis for most libel claims on the internet, even though it’s a very specific type of case and entirely different circumstances to Murray and Usmanov.

The defamatory material was an anonymous comment on a discussion board. The claimant had little choice but to go to Demon, as he couldn’t possibly have approached the individual responsible for the post directly. In this instance — and, arguably, where a blogger is using a service such as Wordpress, Typepad or Blogger — the ISP can reasonably be described as the “publisher”. But this manifestly isn’t the case with Murray, or with most bloggers (myself included), running a site that they are almost exclusively responsible for and in their own name — if not directly then easily available by sticking the domain name in WhoIs. In cases such as this, web hosts play a role more like that fulfilled by printers in traditional media, and while printers can be sued (along with the writer, editor, publisher, distributor and distributor’s cat) they almost never are. Ideally in such instances — where a writer is running his own site under his own name — the web hosts would be immune.

Among the other issues is that Schillings were simply using the threat of legal action to shut down debate without ever intending to use it. Many other bloggers pointed out that exactly the same allegations were made in Murray’s book, Murder in Samarkand, and its publishers have gone curiously unchallenged. And then:

Laura Tyler, of Schillings, said they did not intend to sue Murray directly because they did not want to give him a platform to express his views.

This is tantamount to admitting that they don’t really intend to sue anyone about Murray’s allegations at all, given that any attempt to prove them true would necessarily involve Murray testifying. By using threats in the way that they have, they’re forcing non-publication where a court wouldn’t — rulings against “prior restraint” mean that judges are extremely unlikely to grant an injunction preventing publication of defamatory material. (Interestingly, had it ever gone to court Murray might not have been ordered to take down his posts entirely either. After Loutchansky v Times Newspapers in 2001, newspapers were advised to attach a notice to potentially defamatory archive material on the internet, warning against treating it as the truth.) It might be an idea to prevent law firms contacting publishers, writers etc directly, making them go through a court instead, so that if they threaten to sue they have to go through with it — preventing the likes of Usmanov and Schillings using their power and money to scare people into not publishing.

The final major difference between blogs and the traditional media — largely even online — is that it’s the simplest thing in the world to make a correction to a defamatory blog post: via the comments. Since any false statements are so easily remedied, there may be a case for having material published on blogs dealt with as slander rather than libel. Libel suits automatically assume damage to the reputation of the claimant, whereas slander isn’t actionable per se and damage to reputation must be proven. (Hence we have a thoroughly stupid discord between published and spoken defamatory statements even in private communications. If I say to you in person that, for example, George Bush had sex with a goat, he would have to prove damage to his reputation. If I write it to you in a letter — or an email — damage is assumed.) Given the ease with which corrections can be made, it seems entirely reasonable that someone who feels he has been defamed should only be able to bring an action if he can show that he’s suffered damage to his reputation.

Probably unlike many of the other bloggers who have written about this, and certainly unlike Dr Ehrenfeld, I reckon English libel law — in print – strikes a good balance between press freedom and protection of reputation. Via the Reynolds Public Interest Defence, provided that the press practice practice “responsible journalism” and the story is the public interest, a newspaper will win a libel case even if the allegations prove to be untrue. Last year’s Jameel v Wall Street Journal (another Saudi accused of funding terrorism) case in the House of Lords liberalised this even further, so newspapers aren’t hamstrung by libel laws and can make honest mistakes without fear of being sued.

But on the net they’re a complete mess, a mass of made-up-on-the-spot rulings and bad case law, and need reforming badly. (Boris? Private Members’ Bill?) That’s likely to be at best a long time coming, and would be relying on others rather than helping ourselves. Perhaps the best thing that bloggers could do is institute some sort of Libel Insurance.

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