A guest appearance from the law. Photo (cc) Jürgen Schiller García.
First a disclaimer: My legal qualifications go as far as an A-Level I did at nightclass.
Nonetheless I’ve been reading a few posts recently on English law by other bloggers and they all seem to be making the same mistake. The bloggers are intelligent, fair and reasonable and the make the assumption that English law would be too. So I’m throwing up some points for discussion, most of it applies to bloggers around the world, but there are one or two stings for bloggers based in England and Wales.
Tip One: Be a multi-millionaire
This is useful in any legal system, but especially in England when you realise where the law comes from. We don’t have a 20th century or 19th century legal system in the UK. It’s a multi-layered cake of cases which has been built up over the centuries. Old laws remain in effect because they’re often useful. For example until a few years ago the legal definition of murder in England dated from Lord Coke’s ruling in 1597.
Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party, or implied by law, so as the party wounded, or hurt, &c. die of the wound, or hurt, &c. within a year and a day after the same
It was only updated recently because life-support machines were making the year and a day clause questionable.
A lot of law is like this, it isn’t formally written down. It’s common law which means there’s a huge tradition of relying on precedent and finding the right precedent is where a lot of lawyers make their money. Unfortunately there wasn’t a medieval internet and English legislation is a bit slow. Laws developed for a time when few people had access to a press are being called into service for libel on the internet. There are few precedents, so having a very good lawyer to make your case is a massive help. Incidentally, the fact the law goes back many centuries in the UK is part of the contribution to the fact that Scottish law is not the same as English law. Changing one doesn’t necessarily have much effect on the other.
Parliament could codify the law, and every so often they do. There’s plenty of demand for new laws though so older laws tend to get tidied when the clamour gets loud enough. With my big cynical hat on, there’ll be an election soon and all the politicial parties will want funding from donors with deep pockets. These would also be the kind of donors who are best protected by a vague and purchased justice and will want to fund parties with other priorities, as parliamentary time is limited. It’s not going to change soon. Simply declaring swathes of common law outdated isn’t a practical option either. If you want a better libel law then you’ll need to pressure MPs to change it.
Tip Two: It doesn’t matter where your site is hosted or what language it’s in. If your site can be read in England, it’s subject to English law.
This comment by Councillor Russ Grant (fictional name — changed for reasons below) should make sense:
As this blog is hosted free by Google I think it comes under US jurisdiction, making it safe from the powers of the Leicester Mercury’s lawyers?
There’s places to quibble about that, because the act of uploading occurs in the UK, but it would make sense if servers hosted in America were subject to American law. Or how about servers in the Ukraine being subject to Ukrainian law?
I wouldn’t dream of libelling Ukrainian billionaire Rinat Akhmetov. Nor will anyone in the Ukraine. He’s successfully sued Ukrainian websites in English courts for libel, despite the servers being in the Ukraine and the articles being written in Ukrainian. The articles fell under English law because they could be read by Ukrainians in England and not just one or two, perhaps a dozen or more. I would suggest that to be safe from English libel law you could erect a firewall to keep out English IP addresses. That might not work. Saudi businessman Khalid bin Mahfouz successfuly sued American academic Rachel Ehrenfeld for libel in London for claims in a book which was not published in the UK. English law applied because someone imported a copy. The internet is very good at spreading words, and I suspect that opens you up to action.
Tip Three: If you’re blogging in England you should not use any names associated with real people in your posts.
If you’re from overseas and highly miffed that English law applies to you, you can laugh heartily at the next bit, because the situation is far worse if you live in England. You can also be subject to legal action if you blog accurately about living individuals. In fact the more accurate you are, the easier it is to take action. This is due to the wonders of the Data Protection Act. This was introduced on the entirely sane grounds that people should have the right to take action about misuse of information on computer databases. Unfortunately when the act was written and passed the result was that words take on magical new properties when they’re put on a computer.
What is personal data? Our guidelines at the University of Leicester read:
‘Personal data’ means any information relating to a living individual, and ‘processing’ means almost anything done with it, including, for example, storing it.Section 8
Ok, but they can’t literally mean that? You want more?
All Web pages containing personal data are affected if the information contains the name of a living person and any information about them. This is considered an instance of disclosure of information according to the Data Protection Act. To comply with the Act permission must be obtained from the individual concerned to enable this information to be disclosed, whether this disclosure is Campus Only or Whole World access. Please note that even disclosure of a name will, by reference to it’s context, be a disclosure of personal information.
Even disclosure of a name will by reference to its context be a disclosure of personal information. Any references to co-authors of research papers or other publications, must also be considered.
How would this work in practice? Well, suppose I wanted to write a research paper or write a blog post about someone’s work. Normally I’d want to do that using a word-processor, but that’s a form of data processing on a computer of personal information. You need permission first before the auto-save kicks in. You can’t email for permission, because that would also be unauthorised data processing, possibly involving sending data outside the EEA if you use a webmail account. You have to send a physical letter. If you forget to give the respondent permission to process your personal data on his email system you have to wait for a physical response.
Now hypothetically imagine there was a pair of highly secretive twins who owned a national newspaper. And let’s say they avoided tax and scrutiny by living on a Channel Island like, purely for the sake of argument, Brecqhou. So far it’s ok, but if I let slip anywhere that their were known as the LloydsTSB Brothers, to take another hypothetical example, then they could complain under the Data Protection Act. They would be personally identifiable. I doubt I’d be likely to get permission to blog about their antics. I especially doubt I’d get permission if they were known for exercising political pressure recently via a newspaper like The Sarc News (another fictional name) in the run-up to elections. I’m not sure how legally-safe munging names is, but it’s worth a go.
Tip Four: Assume you’re guilty
As far as publishing on the net, England has laws which bastions of free speech like China, Zimbabwe or Burma can only dream of. It’s not simply that large areas of speech are actionable on the internet. If you take the law at its word all journalism in England is likely to be illegal under one law or another. I think part of that is there’s a presumption of withholding information rather than openness in English law. That made sense when information was all physically stored, but not now digitisation and email has sliced costs
There’s justifiable anger over batty English laws regarding libel, but the system is so rotten there is no quick fix. Any defence of free speech still has to account for the rights of an individual to prevent the misuse of data. There are other associated issues like the lack of a fair use provision in English law and the ever extending copyright laws. There will be no fix at all until MPs feel pressure over it. That’s not sinister, it’s natural for them to be led to the topics the public care about. Until then legally-safe blogging in England is likely to be a matter of putting up material that no-one is willing to spend money on to take down.
Besides the politics blog (and politics gets extra protection as sensitive personal data), there’s these discussions on Friendfeed which may be of interest. There’s also a nice summary on the Grauniad that concludes the English legal system is a public menace.
Edited 22:07 because closing header tags is a Good Idea.Google+