Blogging and the English Law

May 31, 2009 Alun Digital Academia 1 Comment Blogging, Journalism, Law, Libel, Scepticism

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.

…and more from the same page:

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.