Friday 10 August 2012

Free Speech is Protected and Encouraged by the Courts in England, Provided you don’t Defame People

Let us not beat around the bush, London does have the label of being the number one city for bringing libel proceedings, this has in turn earned it the reputation of being the capital of ‘libel tourism’.   
However, in my opinion, many pundits has failed to mention the fact that many individuals and small companies are defamed on a daily basis and cannot afford not to defend themselves against these defamatory attacks. For such companies and individuals, their reputation is their biggest asset: it is their trust factor that helps them bring in and retain their client base.

Small companies and individuals are at the heart of defamation cases. In my experience, I have seen far more individuals and small companies suffer at the hands of an unscrupulous acquaintance, a disgruntled employee or a ruthless pirate type competitor, rather than a “David v Goliath” scenario where the lonely reporter is unable to write an article because a behemoth corporation does not want a piece to be aired. So the real issue that the Government has to deal with is where the balance should lie between an individual’s right to free speech and another’s right not to be defamed. The Government in my view has set the right balance and already has many existing laws to protect reporters and businesses alike. One such example is called the “Reynolds Privilege” which in simplistic terms gives reporters a defence against cases of alleged defamation, if the piece is in the public interest and they have acted responsibly in testing the merits of their information. This principle was recently upheld by the Supreme Court’s panel of five judges in Flood v Times Newspapers [2012] UKSC 11.

There are many reasons why claims of defamation are brought in London’s High Court. It is not by chance, not by luck, and not because it is deemed Plaintiff (Claimant) friendly. In my opinion, the main reason for this label, is because London can boasts the most robust legal system and the most knowledgeable Judges, who are able to deal with complex defamation proceedings, which are now more often than not, fought over material that is published online, to billions of internet users, rather than just in the printed word.

Some pundits have stated that our legal system, in respect of defamation cases, gives the Claimant substantive protections – well try telling that to the many Claimants who have had their cases struck out at the first instance by an intellectual and specialist libel Judge of the High Court because the Judge has quickly identified that the claim has no merit, or lacks substantive publication and therefore cannot be deemed to have sufficiently damaged one’s reputation. Or, even those who fight libel trials, before a jury of their peers, only to lose at the end.  The Court is not stupid, and does not generally waste its time dealing with cases that have no merit.

The Claimant is not given an inordinate amount of protection: the playing field is at best level, or if anything sloped towards the Defendant, for various reasons i.e. under the Civil Procedure Rules the Defendant can apply to the Court for the Claimant to make an advance payment into Court in respect of their legal costs. This immediately places the burden on the Claimant to essentially “put up or shut up”. If they can’t pay the relevant cost sums, the case stops there and then.  This is a widely used tactic by Defendants and one that the Claimant does not have the benefit of.

However, the fact of the matter is simple, if you accuse someone of something you must be able to prove it, or at the very least rely on a defence in law.  This mantra is what underpins every aspect of the British legal system. If you are accused of a crime, the Police and Crown Prosecution Service must be able to prove this to the Court’s satisfaction before they are adjudged as guilty; if you accuse someone of breaching a contract in a civil case, you must be able to prove this to the Court’s satisfaction before you are awarded damages, and in turn if you accuse someone of something that in turn damages their reputation, you must be able to show that it is true (or rely on one of the other defences). This is what the entire British justice system was founded upon, innocent until proven guilty.

There is no doubt that the freedom of speech laws vary significantly in Britain and in the USA. The USA derives its laws from its Constitution. Even now, with the development of the internet and the fact that more libel cases are fought over material posted online, third party publishers, such as Google, You Tube and Facebook, who I often interact with as part of my day to day work, are protected from libel action under federal legislation. 

The fact of the matter is that when an author or journalist writes something that could be considered defamatory, and therefore damaging to one’s reputation, these comments should be permitted to be heard and challenged in the correct forum, that being a Court of law, something the Leveson Enquiry has proven to the public. To say that it is expensive and people are bullied by those with wealth is frankly a cop out. The Courts are now seeing more and more litigants in person, who are given a degree of flexibility when it comes to procedural matters, so to rely on the old adage of ‘I cannot afford a solicitor’ is poppycock. If your allegation is questionable, either don’t say it, be able to prove it, or rely on another defence afforded to you by the law. Very simple.

The proposed new Defamation Bill will change the goalposts. I do not feel that commentators give it enough credit. For example, the single publication rule will prevent action against comments made online that are over one year old, therefore trying to equalise the position between the printed word and the virtual word. As such, cases involving archived content or cached content on the internet may well become a thing of the past.

The development of British libel law has not come just from a statute enacted over 100 years ago, but has developed by means of substantive case law, this is why we have defences such as the ‘Reynolds’ defence.  London may be considered the libel capital of the world, but that said, the Court does not always accept jurisdiction to deal with matters, and there are specific legal tests that must be satisfied to achieve this. So yes London may be the ‘libel tourism’ capital of the world, but to become a libel tourist here you must have the right VISA for entry i.e. the Court must be convinced as to the merits, and jurisdictional aspects of your claim, before it will allow you to enjoy the sights and sounds of this much sought after ‘tourist resort’.

John Spyrou
Head of Media and Internet Law
Bains Cohen Solicitors LLP

A Curious Response by Twitter following a Request from ‘Iron’ Mike Tyson

National Media in the United States has today reported about Twitter’s initial refusal to abide by a request for information relating to an account used by an anonymous user, who threatened to blow up the theatre where Mr Tyson was performing a one man show.

The position taken by Twitter was that the threatening Tweets were not sufficient enough to invoke their emergency disclosure procedures, which forced the Police to obtain a formal subpoena from a Manhattan DA, to force Twitter’s hand. This response is strange, and not in keeping with the general modus operandi of Twitter, as such I cannot really fathom the reason for this.

Here at Bains Cohen, in our experience of dealing with Twitter, be it for the provision of identifying information via a Norwich Pharmacal Order, the service of an emergency injunction to prevent private material from being tweeted, or the immediate shutdown of an account used to harass, bully and intimidate a client, we have always found them robust and expeditious with their assistance.  Our relationship with Twitter is one that we heavily use when dealing with issues emanating from the micro blogging site, hence my unease at the time taken by them to deal with the Mike Tyson issue.
Let us hope that this is not a sign of things to come.

John Spyrou
Media Law Expert
Bains Cohen Solicitors LLP

The New Defamation Bill – Will ISP’s really be required to give up a trolls details voluntarily??

Much has been made in the press this about the new proposals in the Defamation Bill and the fact that ISP’s, under new government proposals, will be required to provide victims with the identity of offenders who post abusive and defamatory online messages about them. This in itself is not technically true.

The draft defamation bill makes a big deal about the new procedure that ISP’s will have to follow before alleged online material is to be taken down. The bill describes the differentiation between identifiable material, by means of authorship and unidentifiable material i.e. an ISP, following a complaint made on ‘identifiable material’ must immediately place a notice against the material stating that it is subject to challenge. Under the new procedure an ISP must immediately remove alleged defamatory material from an unidentifiable author. This may seem great on paper, but let’s think about it practically. A person goes online as ‘John Spyrou’, ‘Rupinder Bains, ‘Lord Alan Sugar’ or ‘Donald Trump’, they are likely not the real person, however does this could as identifiable material – merely because there is a name next to it? The draft defamation bill does not make this clear. And therefore if it is unclear how can it be enforced. Answer – it cannot be.

Also any requirement on ISP’s to identify internet trolls or offending posters by giving details of their electronic signature, without a specific Court Order, is questionable. Any such requirement is arguably incompatible with the Data Protection Act, Electronic Commerce (EC Directive) Regulations 2002 not to mention basic human rights such as right to privacy and freedom of speech.

Furthermore, internet trolling does not always amount to defamation and the term is usually reserved for those perpetrating harassment on innocent internet users. The government appears to have been caught up in the media hype surrounding trolling and so is using the word for all and sundry.  So how the government plans to deal with the similarities/discrepancies between the trolls and outright defamers is again unclear. 

I will save the jurisdictional issues concerning US corporations like Google and Facebook for another time.

In summary, the material bandied in the press is slightly premature and should be treated with caution. For now, to identify online offenders the Court is who we should ask for help. 

John Spyrou

Bains Cohen Solicitors

Friday 11 May 2012

The Queen’s Speech 2012 – What will it mean for the law of Defamation – Reform? Overhaul? Or Same Old Same Old?

Her Majesty Queen Elizabeth II’s most gracious speech to both Houses of Parliament took place on 9 May 2012, with focus being placed on getting the country out of the economic mire we find ourselves in. However, if you listened very hard and used your microscope on the transcript, you would have noticed 15 words that could change the defamation playing field substantially.

For those of you who may have missed them, I repeat these 15 words below:

“Legislation will be introduced to protect freedom of speech and reform the law of defamation”

15 little words, which together indicate the beginning of a complete overhaul of English defamation law.

The new Defamation Bill still has some way to go before becoming good law, but if it is introduced, then it is likely that London will lose its mantra of ‘Libel Capital of the World’ and put pay to ‘Libel Tourism’, (which brings Her Majesty’s Courts and Tribunal Services substantial sums in Court fees every year).

It is a foregone conclusion that the libel laws need reform, purely for the fact that at times they appear incompatible with current technology. However, to move away from being Claimant friendly and spin towards protecting apparent absolute freedom of speech is not, I consider, the right way to go.

Granted, freedom of speech is important, as is the protection of one’s reputation but we have the best Judges and the best legal system in the world, to handle this complex area of law. This is why London is the capital of ‘Libel Tourism’.

A huge overhaul of the law is not required; just a little bit of a reform and an update should suffice.

The idea of the single publication rule, one of the proposed changes, is also an absolute scandal in the making, given the scope and size of the internet. If by some curse the single publication rule is included in the new Defamation Bill, I bet my house that we will have a spate of applications to the High Court applying to extend the period of limitation, which will in turn, simply increase the administrative burden on our Judges and Courts, something which I am sure the new Bill is trying to avoid, not increase. However, I will delve into this subject in depth at a later date, as it really deserves its own posting.

Internet Law Solicitor John Spyrou of Bains Cohen LLP

Check out my interview on Internet Trolling - page 95 of FHM’s June 2012 addition.

Thursday 16 February 2012

Bains Cohen Win Injunction Against Google Inc

On Monday 23 January 2012, a High Court Judge in London ordered Google Inc. to disclose to a UK claimant, data and personal details which it holds in relation to a user who utilised Google’s Blogger to spread defamation against a UK based businessman.

Google was told to have information, which includes the blog owner’s user name, email address and IP address disclosed to Bains Cohen, lawyers acting for the claimant, who is fighting for defamatory content about him to be removed from the American based Blog.

Bains Cohen applied for a court injunction against Google and Google has consented to the order.
Read More on Google Injunction

Tuesday 24 January 2012

Can Defamation Content Be Removed From Google?

Yes. It is possible to remove defamatory content from Google results and Google Blogger and here is how to do it.

Keep in mind though the recent data which was published by Google and which demonstrates the type of requests to remove web content that Google is likely to accept. In the alternative, it is possible to compel Google to disclose user's personal information by acquiring an order to this effect from the High Court in London.
Read More about removing web content from Google

Friday 25 November 2011

What Hope Do Victims Of Online Defamation, Online Reputation Attacks And Online Harassment Have In Rebuilding Their Lives? - London Lawyers

What Hope Do Victims Of Online Defamation, Online Reputation Attacks And Online Harassment Have In Rebuilding Their Lives? - Internet Lawyers:

The fact that almost everything on the internet is changeable and movable should be somewhat comforting to victims of online defamation, online reputation attacks and online harassment. Having the knowledge that nothing on the internet is set in stone gives people a real hope that their reputational issues could one day be resolved.

And if you are a victim of online defamation, then...Read more on how to deal with internet defamation

Tuesday 15 November 2011

New Stalking Bill To Stop Internet Stalking, Online Harassment and Social Networking Bullying « Internet Law Expert

Will New Stalking Bill Stop Internet Stalking, Online Harassment and Social Networking Bullying? « Internet Law Expert:

The state of the internet is one of complete anarchy. Social networking sites, blogs, forums and discussion groups are attracting ‘online rioters’ of the worst kind who (quite rightly) believe that there are no consequences to their actions.They hide behind a veil of anonymity knowing that it will be almost impossible (especially to a vulnerable victim) to ever smoke them out. Anarchy spreads fast, so it is not surprising that we are now seeing an increase in the number of victims of internet stalking , harassment and bullying.

The Stalking Bill should help to create a system for obtaining Identification Orders which will help victims resolve their matters through the civil courts without the need to pay expensive legal fees and without taking valuable resources away from the police.
Read more about the Stalking Bill

Sunday 23 October 2011

Bains Cohen Win Injunction Against Money Saving Expert

By Kit Chellel
Bloomberg News

People who use fake names to post critical comments about companies on websites may not be as anonymous as they think, as firms use the courts to unmask online accusers.

While Internet users have traditionally enjoyed the freedom to air controversial views without using real names, courts can order websites to hand over e-mail and Internet-protocol addresses, and other personal details, if anonymous comments go too far
Read full post Bains Cohen Win Injunction Against Money Saving Expert

Thursday 1 September 2011

Internet Reputation Tip Of The Day

Online Defamation Blog « Internet Law Expert:

The internet works in a strange way. Each time your reply to an online comment, you are fuelling its popularity. This is because you are introducing new material on the same topic.
The search engines, and in particular Google give priority to ‘live’ issues which means that each time a comment is being added to a thread, it helps the thread to climb up the search engines’ ladder, which ironically is exactly the opposite of the result that you would want to achieve.
Furthermore, (and this is from my experience as a soldier)