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.