WordCamp Ireland 2010: Avoiding libel when blogging
Law is dry. It’s impenetrable. But it’s vital for anyone considering publishing something to be aware of the key points.
The problem is there’s simple guide to the damn subject. That’s why the clever kids at school went on to spend years reading books about the subject, pouring over case notes in pursuit of their degrees and a well-paid job in litigation.
Ask any one of them. There are no certainties. That’s why people hire lawyers – so the lawyers can do all the clever stuff on their behalf. The lawyers advise. The lawyers steer you clear of any of that unpleasant and costly law suit stuff.
Don’t let your blog cost you your house
But what if you’re a blogger? If you’ve not got the money to pay for legal services after you published something defamatory? What can you do?
No surprises that @tupp_ed didn’t answer that question. What self-respecting legal expert would in a necessarily brush-stroke presentation?
Even so, @tupp_ed’s entertaining “Staying out of Libel: How to make sure your blog doesn’t cost you your house” session at Wordcamp Ireland provided some good advice. Advice which is – when you’ve read it and thought about it – pretty much common sense for anyone to bear in mind before he or she hits the publish button.
And of course, it goes without saying that what follows is derived from notes I took during the session I attended and extends only to Irish law. I’m not an expert. You should seek legal advice if you’re in a spot of bother. I am not to be held responsible. I’m just blogging what I think I learnt. So ner ner ner.
What’s ‘defamation’ mean?
In the Republic of Ireland the definition in the Defamation Act 2009, Section 2 defines defamation as: “A statement that tends to injure a person’s reputation in the eyes of reasonable members of society.”
This definition demands consideration. What is a person’s reputation? What was the person’s reputation before the claim of defamation was made? (If someone’s reputation is so appalling to begin with any cries of defamation may possibly be redundant on the basis that the individual’s reputation couldn’t be any worse than it was already).
What are the defences against defamation?
Merely saying “But it’s true!” doesn’t mean it is. It’s a bit like that line from Eddie Izzard’s Unrepeatable: “You smell, because you do!” You’ve got to be able to prove that it’s true if your defence is that it’s true.
“I have qualified privilege.”
Reporting (carefully) on things said in the Courts or in the course of your duty. You are simply repeating what someone else said.
If you’re acting in the course of duty and you’re reporting something in the course of that duty to someone who needs to know in the course of their duty and that core information is wrong, then there’s a defence against defamation. You would, of course, need to prove it was in the course of your duty.
“It’s a matter of opinion … and I was only expressing mine.”
This strikes me as a shaky defence – in my opinion. Artistic review is one thing, so too commenting on matters of public interest. I’m OK with that, I’m sure of it.
You’re going to have to prove that what you wrote was your own opinion and if you can’t you run the risk of someone else proving that it was. Best not use this as a defence.
The bottom line is that whatever you write you’re going to have make it clear what you are presenting as fact and what you’re presenting as opinion. Mixing the two is a bit bad.
Fair and reasonable publication in a matter of public interest
I’ll go back to my notes on this one. I’ll happily admit I don’t quite get this. I know it’s a new thing in the Defamation Act of 2009.
Too Late To Sue
In Irish law it seems, you’ve got a year to bring a defamation case against someone after the first point of publication. Anything after that and they’ve missed the boat, the losers.
The thorny issue of blog comments
This, admittedly, is where my knowledge of UK defamation isn’t as up to speed as it might be. Another reminder for me to go over what’s on the BBC College of Journalism site.
But what’s important (in Ireland) is how blog authors are as responsible for the stuff commenters write on their site just as they are for the posts they write.
- Publishers routinely get sued along with authors of defamatory statements
- As a blogger you are are the person who controls your blog and what’s on it
- You are the publisher of the comments on your blog whether you moderate them or not
- You are responsible for those comments, even if the authors of them are total idiots who can’t spell or string together a half-decent sentence.
Just to ram the point home I made earlier, these are not exhaustive notes. Nor are they based on my knowledge and experience. They’re merely notes I took during the Wordcamp Ireland session on libel for bloggers. It was also a session which extended to Irish legislation (even if it did on occasions refer to UK law). That’s my defence at least.
Even so, a first read through would result in a less than resilient blogger consigning anything they write to the ‘draft’ folder and moving away from the keyboard. If you are one those people then you might as well go and make a cup of tea or stroke a cat.
Or just look at defamation law as the worst case scenario where you’ve failed to exercise the bare minimum of common sense. It’s not that difficult to understand.