One of the fears of bloggers and libel is defamation and frankly the fear of this arising. The issue is being considered in this post in Legal Blog Watch.
Furthermore, Glenn Harlan Reynolds of University of Tennessee College of Law has written a useful and scholarly article entitled Libel in the Blogosphere, Some Preliminary Thoughts.
Of course, this article takes a US perspective on the issue of libel but within England & Wales, what are the key issues facing bloggers?
1 Unlike the US`which has constitutional protection afforded by the First Amendment, England & Wales, has much stricter rules. Just consider the fact that London is known as the "libel capital of the world."
2 A potential risk for bloggers is that we have a press which is not unknown for making untrue statements - How many times have we seen a tabloid use the words "world exclusive?" which is clearly patently false? This does not exactly set the greatest example for publishers. In my view, many bloggers have been conditioned by the media to bend the truth.
3 The nature of blogging encourages people to express an opinion. Indeed, recently I read that one PR Company with expertise within blogging advising would be publishers "...taunt your reader with your opinion...." All well and good but in so doing you do need to respect to libel and/or defamation laws otherwise you may face a lawsuit.
With respect to the legal position, English & Welsh law has evolved in case law with regard to reporting on matters of public concern or public interest. It is possible that an article could attract the protection of the defence of qualified privilege. A useful starting point for considering the law is Reynolds v The Times Newspapers Ltd.
Points to consider:
- The seriousness of the allegation – the more serious the charge, the more weighty the reporter’s responsibility to be correct.
- The nature of the information , and the extent of which the subject matter is a public concern. The more important the story is to the public’s welfare, the more leeway for error will be granted.
- The source of the information – The credibility of the source and the reporters/webmasters efforts to check that credibility will be considered.
- The status of the information – The allegations may already have been subject to an investigation which commands respect.
- The steps taken to verify the information – Fact finding, research, interviews, and investigation all combine to convince a judge that qualified privilege should apply
- The urgency of the matter – Courts are not so likely to be influenced by urgency arising from press/blog pressure to publish but rather by the public’s need for information.
- Whether comment was sought from the claimant - An approach to the claimant may not be necessary but is in my view desirable. The leading libel lawyer Mark Stephens has observed “As a practical tip, because much litigation now centres on this area, it is often useful to have proof of contact and the matter put to the target, as well as showing that the target had a reasonable opportunity to inform himself, respond meaningfully, and that the response should be fairly included in the article.”
- Whether the article contained the gist of the claimant’s side of the story- Stories that edit a denial of wrongdoing may be found libellous.
- The tone of the article – A newspaper can raise questions or call for an investigation. It need not adopt allegations as statements of fact.
- The circumstances of the publication including the timing.