One of the defining features of the comments section of political blogs is the propensity for reasoned debate to slide into hysterical abuse. Frequently the comments can be better than the original blog posts as commentators relieve their frustration that other commentators hold views equally as virulent as their own, just as entrenched, and flatly refuse to back down for one second from the outer reaches of the opposite political spectrum…

The anxious moderator sits hovering over the ‘moderate’ button, trying to fathom the moment when ‘acrimonious debate’ turns into a ‘defamatory time bomb’ ready to explode under the web site owner. Or prays that their social position in life, based under their Mum’s back stairs, unemployed and unloved, leaves them free of the tender attentions of Mssrs Carter and Ruck.

Free Speech has been a minefield ever since blogs were invented. The judiciary has appeared unsure whether blogland defamatory abuse is a virtual extension of neighbourhood pub conversations, and should be treated as slander, or whether it is truly libel to be punished as seriously as defamatory words published in the permanence of the printed book. (I’m not getting into the finer points of legal definition here, kindly un-jerk knees lawyers; this is addressed to all bloggers, not just you).

On Wednesday last, (only a faxed copy is available to date, permanent link when available) Mr Justice Peter Annis, sitting in the Canadian Superior Court of Justice in Ontario, waded into this philosopher’s bourn and emerged bearing words of wisdom.

Whilst the Canadian decision is obviously not binding on the London High Court, it will be read with interest and may inform future judgments. It suggests that there may be a difference between defamatory words ‘printed’ in a comments section and those hurled with gay abandon into print during a lively exchange where the ‘injured party’ has had both the opportunity to respond to them – and refute them, and has also been part and parcel of such lively debate.

In short, you may not be entitled to stomp away from a lively virtual pub exchange of insults and then later pointed to printed words in hurt tones and claim ‘libel’.

That is an interesting ‘fag paper’ slid between the world of slander and that of libel.

Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame.

 This distinguishes the context of blogging from other forms of publication of defamatory statements. One exception could be the live debate, of which blogging constitutes the modern written form.

That is not to suggest that if you find yourself libelled on the internet that you must step into the fray and respond to defamatory comments if the opportunity exists, just that it is no use slugging it out with the best of them and then retire from the ring muttering ‘anywhere but the face darling’ and later point your lawyer in the direction of the parting shots from your previous combatants.

The case of Baglow v. Smith, taken out of its legal context and turned into blogging terms, was between ‘Dr Dawg’, owner of Dawg’s Blog, aka John Baglow, a left wing commentator of some renown, and three defendants – ‘Peter O’ Donnell’, in fact the user name of Roger Smith, and the two owners of the ‘conservative’ – perhaps code for right wing – Free Dominion web site.

Left/Right, seconds away. Let battle commence. More popcorn.

The subject at issue was the treatment of a Guantanamo Bay detainee, Omar Khadr, a Canadian captured by American forces when he was 15 years old and thus covered by the UN Convention of the Rights of the Child.

In the course of the on-line argument, the left wing Dr Dawg referred to supporters of the conservative government as ‘yokels with pitchforks’, indeed he publishes on his blog a piece entitled ‘Off with his head’ in which he refers to the incumbent government as a ‘horrific gang of sub literate hoodlums’. He thinks Omar Khadr should be released as a matter of International Law. You get the picture.

Other right wing blogs join in the fray and tempers rise to boiling point. Commentators swing between the various blogs hurling abuse at each other. One such comment runs:

In the moral sphere, you seek complicity with the recent murders of American aid workers under the spurious (if outrageous) charge of spreading Christianity, when you sign up to support Omar Khadr. I think such public declarations of support of Al Qaeda and the Taliban amount to treason, given that we are engaged in a war against them. It’s really only because the war is contained and not likely to be lost on our soil that these normal laws do not apply, or shall I say, are not being applied. But the government of Canada would be quite within its legal rights to arrest the lot of you for treason.

Dr Dawg had by this time returned to his blogging haven of Dawg’s Blog and failed to respond to a comment that branded him ‘one of the Taliban’s more vocal supporters’. It was in respect of this comment that he claimed he had been libelled.

The case was summarily dismissed, but not before Mr Justice Peter Annis had made some obiter remarks.

“a statement is not derogatory when made in a context that provides an opportunity to challenge the comment and the rules of the debate anticipate a rejoinder, unless the statement is wholly outside the scope of the debate or otherwise so outrageous as to prevent meaningful argument from continuing.”

Bringing an action on the comment in mid-debate runs contrary to the rules and has the effect of chilling discussion. If allowed, it places the opposing party in a defensive mode, rather than an offensive one, strategically putting that party at a disadvantage. 

The judiciary are beginning to grapple with the challenge of defamatory words that the utteror may part with under the impression that they are the same as lightly spoken words, (Robin Hood airport anyone?) but which hitherto the law has been forced to treat with all the respect previously accorded to the published word – commissioned, edited, and duly reflected upon.

h/t to Matthew Nied

honestbroker
September 6, 2011 at 11:18

I’ve been thinking about this, and I hope Anna will forgive me, but I’m
going to return, to a certain extent, to definitions again.

I think, that even with libel laws as onerous and restrictive as those that
apply in the UK, free speech is quite possible.

In fact, I’ll go further and cite an example that (I believe) makes my
point. I think *free speech*, distinct from libel, is encouraged and enabled
by UK libel laws.

Here’s the caveat, though. To pull it off, you must be a skilled word
smith. UK libel laws allow libellous statements to be made, so long as the
defence of ‘qualified privilege’ pertains. That is why, for example, the BBC
and several other media outlets were able to publish the 48 questions Kate
didn’t answer in her arguido interviews. Unlike Tony Bennett in his you-tube
video, the provided context to their articles that made plain the McCanns’
arguido status had been lifted and that no stain of suspicion remained against
them.

Now read this article by, actually, one of my favourite journalists,
Matthew Parris, about Robert Murat. In it, he repeats just about every libel
perpetrated against Mr Murat. We know Murat took action against many media
outlets, but not against Parris, or his paper, for this article.

http://www.timesonline.co.uk/tol/comment/columnists/matthew_parris/article2324200.ece

Among bloggers, I would single out JayElles as one who also, often, repeats
libels, but who would be able to claim qualified privilege as her defence
because of the way she goes about it.

Sometines, perhaps, the balance does go a little too far the other way. The
Daily Telegraph correspondent David Blair (or his paper) was successfully sued
for an article he wrote about George Galloway, in which Blair produced
documents independently verified as authentic from a burnt out Iraqi building
after the collapse of the Saddam regime, showing that Galloway was entitled to
money from the former regime. The sticking point was that there was no proof
he took it …

So maybe there might be some tinkering required.

But on the whole, I think our libel laws work well

honestbroker
September 5, 2011 at 12:43

Hmmmm!

I know Anna wasn’t seeking to focus on legal definitions, here, but I think
the point is relevant.

American legal law (for example) is much more liberal than UK, which is the
strictest in the world. I don’t know about Canadian libel law, but as the
country has our Queen as its head of state, I would guess that Canadian law is
more analogous with ours than America’s?

A recent “kindle” book by the self-styled “criminal profiler Pat Brown
about the McCanns, by American libel law, I gather, would not be regarded as
libellous if the McCanns fit the American definition of “celebrity figures’,
even though the book is strewn with outright falsehoods that patently lower
the reputation of the McCanns and their friends.

Returning to the topic under discussion, this seems to be the key part of
Justice Annis’ ruling:

““a statement is not derogatory when made in a context that provides an
opportunity to challenge the comment and the rules of the debate anticipate a
rejoinder, unless the statement is wholly outside the scope of the debate or
otherwise so outrageous as to prevent meaningful argument from
continuing.”

Bringing an action on the comment in mid-debate runs contrary to the rules
and has the effect of chilling discussion. If allowed, it places the opposing
party in a defensive mode, rather than an offensive one, strategically putting
that party at a disadvantage.”

It is a ruling in favour of free speech which departs from the strict line
that anything lkely to lower a reputation, published to a third party, and not
manifestly demonstrated true can be thought libellous.

There is the qualification that a derogatory comment non-sequitur to the
conversation or not amenable to sensible reply might fall outside the
rules.

But how do you respond to something like this?

___________________

‘one of the Taliban’s more vocal supporters’

_________________________________

You can’t, other than with a straight denial. You can’t disprove it.

Similarly with Pat Brown’s book. She states who (named) found Madeleine’s
body and disposed of it.

How are the accused supposed to defend themselves?

I confess to unease about this ruling.

.

Anna
Raccoon September 5, 2011 at
13:24

Canadian and Australian are common law countries and as such quite a bit
of their law makes its way into our jurisdiction.

Châtelaine
September 5, 2011 at 15:16

Their usual defense: the McCanns sent in their Carter Ruck lawyers and
Amazon withdrew the book.

derfe September 5, 2011 at 10:25

When men/women/things/aliens/ intelligent slime/ whatever they wished to be
called , of different opinions , cannot be civil , and resort to Abuse and
insults, then it is not the law from which we need the help to sort the
problem . the education of these people is the source of the problem and
likewise will be the solution . If these people are not educated in civil
discourse , then there is a question to the real value of the person’s
education and likewise their opinion. Perhaps some-one should produce a
mandatory civility class, for the most bile-filled , virulant stains on the
blogosphere cloth ( like a vanish oxyaction stain remover {dislaimer , there
are other brands of stain remover} but for the blogosphere ) . I do hope that
i haven’t offended Aliens or intelligent slime by putting them on the same
pegging as us mere mortal humans, or indeed anyone else by these remarks .

backwoodsman
September 5, 2011 at 11:34

Up to a point , derfe, up to a point. Until littlejohn had the good sense
to point out the utter hypocrisy of la Toynbee and her faux socialist ilk on
tv, the msm had knowingly failed to reveal these facts to the public
.
The blogosphere has not been constrained by the same ties and has
rightly shot down and ridiculed the guardianistas in the vernacular whenever
they dare to stick their heads above the parapet.
Pointedly profane
bloggers have done more to destroy the credibility of the beeboid /
gaurdianista axis in the last 12 months than the rest of the media did in 20
years of sycophancy .

derfe September 5, 2011 at 11:51

well a river of man-eating fish , will kill you more quickly than a
star crossed lover .

GildasTheMonk
September 5, 2011 at 08:34

Common sense from a judge! Where are my smelling salts….!

philip walling
September 5, 2011 at 08:17

Very wise and humane judgment.
Time was when our own judiciary would
have had the wit to express the distinction.