Posts about libel

The risk of reporting

Guardian editor Alan Rusbridger (disclosure: I work for him) recounts at length an expensive libel action against the paper by giant retailer Tesco over highly complex reports that included errors on the company’s alleged attempts to avoid taxes. Rusbridger calls for a reform of British libel laws (“Do not be lulled into a false security by the word ‘British’: in the Internet age the British laws can bite you, no matter where you live”) – particularly in the midst of a economic crisis, when we need more reporting about companies’ activities. He writes:

Whether we are dealing with banks, taxation, security, religion, or climate change, we need more than ever to find ways of encouraging, not penalizing, news organizations that try to report matters of the greatest complexity and significance. The financial crisis currently facing newspapers in America and Europe is grave and comes at a time when they are more needed than ever. In years to come people may not question why newspapers got things wrong about such complicated matters as corporate tax structures or the behavior of investment banks; they may express wonder that they even tried.

In my various scenarios for the future of news that relies more heavily on independent practitioners and networks, libel suits remain a huge question for which I can’t find an answer. It’s enough to ask, as Rusbridger does, why a (financially struggling) news organization would go ahead in reporting on large companies with the chance of errors and crippling punishment for them or of legal harassment. It’s another matter for an individual reporter – a Josh Marshall (even if his wife and business manager is a high-level attorney who used to work for Dow Jones) or a HuffingtonPost blogger – to take on the risk of financial ruin for the sake of reporting. The Media Bloggers Association has arranged libel insurance for bloggers, but in the face of prosecution of the level Rusbridger describes, that would be just spitting in a volcano.

We need a frank discussion about the good, need, and risk for society of reporting. I think we also need to investigate new ways to make even the subjects of investigation part of the process of investigation, so it is clear they have the opportunity for correction and clarification earlier on – and if they forego that opportunity, they share risk. The more transparent they are, the more they mitigate that risk. To do this, we must acknowledge the public good of having watchdogs look over corporate activity, especially as governments fail to do so.

: LATER: John Naughton sees some hope:

There is, however, a chink of light in the gathering darkness. Rusbridger spells out in great detail the huge cost of retaining the specialist accounting and legal expertise needed to understand the Tesco transactions. But one rule of the new ecology is that there is wonderful expertise out there on the Net, and there might be ways of harnessing all that collective knowledge — rather as Linux harnessed the distributed skills of great programmers across the world to build a ferociously complex operating system; or as Larry Lessig and Charlie Nesson have crowdsourced the task of preparing legal briefs for pro bono cases.

The lowest common denominator of speech

Martin Stabe points to another legal story that is getting too little coverage here, with links to a news story and a FindLaw analysis about a New York court refusing to protect an American author from a UK “libel tourism” judgment over a book that sold a mere 23 copies in England.

What’s profoundly frightening about this is that we in America could find ourselves subject to the UK’s libel and privacy laws, which throw free speech to the wolves in defense of privacy.

In other words, thanks to the internet, we could be subject to the lowest-common-denominator of protection of speech against libel actions.

One could imagine it would get even worse: Couldn’t we be subject to Islamic theocracies’ prohibitions against criticizing Muhammad or dictators’ laws against criticizing them. If other legal systems can reach out to us and our speech here then corporations — publishers, networks, service providers — chilling us.