Have bloggers libelled Jackie's alleged "attacker"?

As Press Complaints Commission director Tim Toulmin thinks out loud about the need for a voluntary code of conduct for bloggers, I have continued to reflect on the way largely well-meaning commentators have picked up on Jackie Danicki's post about an alleged incident on a Tube train...

I began by asking whether it was ethical for other bloggers who know Jackie only through online reputation to repeat her allegations without making further checks; I was trying to contrast the implications of taking a friend's word in conversation with the responsibilities felt by a writer who may command a global audience, and began to suggest that polemical bloggers need to think like reposnsible journalists.

My concern is ethics. My University of Sunderland colleague David Banks is rather more down to earth. He concentrates on the law and is, among other things, co-editor of McNae's Essential Law for Journalists. Be assured, there is a copy of his book in every newsroom in the UK; this is indeed essential reading.

Here's what he says about those who comment on Jackie's post:

Bloggers who repeat these sort of allegations ought to keep a wary eye on the laws of libel in the UK. Laws that are so favourable to a claimant that many a foreign litigant has beat a path to our shores to sue in the potentially very lucrative environment of the High Court.

Should the young man pictured become aware of what is being blogged  about him and choose to consult a no-win, no-fee solicitor - it is no longer only personal injury lawyers who operate in this way - then all
he has to show a libel court is that:

• the words published are capable of having a defamatory meaning
• he is identified
• they've been published to a third party
  
  Note that he does not have to prove the words printed about him were untrue, quite the reverse, the court will assume the words printed were untrue, and then it will be up to the bloggers to prove the truth of what they have published.
  
  Remember it is no defence to claim you are simply repeating what someone else has said - everyone who repeats a libel is as liable for it as the person who originated it.
  
  The likelihood of any of this happening in this particular case may be very small. But as long as bloggers publish material like this it is only a matter of time before someone thinks it is worth their while taking one of them, or a lot of them, to court.

Food for thought. To say someone is a sex attacker is clearly defamatory - unless of course you can prove it to be true; as David explains in UK law the onus is on the publisher (the blogger) to provide this proof.

It may be unlikely that the man will take action against Jackie but unless and until he is found guilty by a court it might be very difficult indeed for those other people who have published his photograph to prove their allegations. Even then, it maybe that those who have chosen to comment without fully understanding the facts may have strayed beyond what was established in court to be true.

Comments

[alan patrick]

This is indeed a fascinating case....now, 2 points:

(i) are you at risk of being sued for libel because you are blogging about bloggers taling about this and thus spreading the content?

(ii) Is linking to a story and the same as repeating it in print?

[Serge Cornelus]

I agree: very intresting stuff. I guess a lot of bloggers never think twice about some of the consequences of their publications. I admit I probably belong to that category too. A good thing there are some watchdogs awake out there.

[OmegaMom]

In the U.S., the California state supreme court ruled last week that websites that publish "inflammatory information" written by other parties can't be sued for libel. I expect it'll go to the U.S. Supreme Court.

Anyway, I thought it was an interesting juxtaposition to your post...

[David Banks]

Alan, with regard to your first query, it depends how much of the libellous allegations you carry in discussing the matter. The litigant if he chooses to sue someone discussing the case would have to show the court the same things - defamation, identification, publication - and if those three requirements were satisfied in a 'discussion' of the issue then it could leave one open to a libel action.

As for point two, that would depend on whether a court decided that a link was 'publication'. A claimant might argue that by providing a link you are providing a means of access and therefore publishing.

I haven't seen a case that involves this question yet - can you be sued for a weblink - so I'm only guessing what a claimant might try.

[Linda]

Yes all very interesting. For me, having provided a link to the original post, I considered it "safe" to do so from thinking along the same lines as:

The likelihood of any of this happening in this particular case may be very small.

Fast forward to if this individual is apprehended and I would say then the picture needs to come off in case his legal team say "identity is an issue." But that's playing safe against contempt rather than defamation isn't it?

But having read Jackie's original post and bearing in mind the 'small likelihood' aspect, I have to say none of this took precedence over expressing my support and empathy for her.

When I worked on a publication based not a million miles from you, the then editor would pace around the newsroom saying: "Let them sue!" This was from an informed position.

[Martin]

But would this individual want to bring suit and risk having Danicki testify against him on behalf of the defendant blogger, as she inevitably would?

[David Banks]

Martin,

That's a resonable point of view for those who know Jackie personally.

However, making allegations without having the proof of them to hand is very risky. If you are going to claim justification (truth) as your defence to a libel action you've basically got 28 days to show the court you have a realistic proposition of mounting such a defence.

If you can't do that, the claimant can ask for summary judgement and then it's purely a question of how much the judge is going to award against you in damages.

[Marc]

This is a very interesting discussion. I just happened to have read about "Holla Back" where women who are being verbally harassed can post their frustrations, including pictures of the harassers.

Of course those sites fall under U.S. jurisdiction, but it is the same concept nonetheless. I wonder if they will face legal problems in the future, as its content grows.