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Wednesday, 12 May 2010

Dave Osler Libel Decision Due Tomorrow

Let me introduce you to Dave Osler.


You will like him.

He is a professional journalist and author, and his blog is perhaps the best and wittiest left wing blog in the UK.

It is extremely well-written and engaging.

It is a favourite of mine, and of hundreds of others.

But for the last two years Dave Osler has been living under the threat of a libel suit for a blogpost, which I now re-publish in full below.

This threat will continue, depending on what the High Court says tomorrow.

If he loses at trial, he will be bankrupt.

This is serious.


So what is it about?

As you will see, Dave's blogpost was prompted by an earlier blogpost by Johanna Kaschke, who was - and is - active in local politics.

She was then in Respect, and she is now a Conservative.

Dave summarises her blogpost and links to it at least twice. It is a sympathetic piece. The linking is in accordance with best blogging practice: anything he says can be checked and sourced against what she wrote about herself.


However, Ms Kaschke took exception to this blogpost.

Dave offered a right of reply and, as a courtesy, he took down the blogpost.


Then, at some point and for reasons which remain unclear, the earlier blogpost of Ms Kaschke is somehow deleted.

And then, over a year after Dave's original blogpost was published, Ms Kaschke sued Dave for libel.

She sued him not only for his blogpost, but also in respect of comments on the blogpost.

And, of course, Dave cannot refer back to her original blogpost, of which his blogpost was a gloss, because it was deleted.

Ms Kaschke maintains that she has no copy of that original blogpost.

In these circumstances, of course, it is almost impossible for Dave to properly defend himself.

The deletion of the original blogpost is really like a carpet being pulled.


For the last six months, Robert Dougans (also solicitor for Simon Singh) and myself have been assisting Dave with his defence on a completely pro bono basis. More recently we were supported by William McCormick, now a QC and one of Simon Singh's barristers.

And last month Robert Dougans spent a day on his feet in Court 13 before Mr Justice Eady.

Robert argued that her claim should be struck out (1) as an abuse of process, (2) as being outside the year limitation period, and (3) because the right of reply offered should have been the end of the matter.

He had an uphill battle.

Strike outs are rare in English libel litigation.

He is likely to have been unsuccessful.

If so, the full jury trial will be in autumn.

In the alternative, he argued that the defence should be completely amended and that Ms Kaschke should be ordered to provide a copy of the original blogpost.

This is more likely, but still not certain.


Judgment on these applications will be handed down at 10am tomorrow.

Any decision may have significance for all bloggers, not least on the circumstances where summarising and linking to material can expose one to legal liability, and the liability for blogposts and comments which are over a year old.

I will post the judgment as soon as I can.

I will tweet the result from outside Court 13.


I now set out Dave's original blogpost below not as an endorsement or adoption of any alleged defamatory meaning, but as an aid to understanding the significance of the judgment tomorrow.

Readers of this blog will, of course, understand that.

[Dave's original links are in bold italics.]


Respect member's "Baader-Meinhoff link"

Johanna Kaschke – recent defector from New Labour to Respect – was in the 1970s held in custody in her native Germany, charged with support for the ultraleftist Baader-Meinhof terrorist group.

Ms Kaschke – pictured left – denies any wrongdoing, although she admits to having organised some sort of benefit gig:

‘All I ever did was organise a music concert in the University of Würzburg Mensa. This got me sacked from my job in the University bookshop Schöning and I also then lost my home.’

She has recently launched a complaint against leading German news magazine Der Spiegel for an article it wrote three decades ago, naming her in this connection. Rather than trying to hide any of this, Ms Kaschke has commendably chosen instead to post a copy of the story on her own website. She goes on to write:

‘I can safely say I never met any of the other persons mentioned in the article and got released after three months of prison on remand and was paid compensation for wrongful arrest and imprisonment two years later.’

If we take this account at face value – and I have no reason not to – the worst she stands accused of is youthful folly. After all, many young attracted to far left politics in the 1970s were passively sympathetic to groups such as the Baader-Meinhof gang. Most have subsequently been rehabilitated.

Former Angry Brigade suspect Angela Mason these days boasts an Order of the British Empire gong and sits on quangos. Even I used to wear a Brigate Rosse T-shirt, as modelled by Joe Strummer. Ms Kaschke appears to have come to political terms with all this:

‘Frankly I cannot understand how such educated university graduates like the Baader Meinhof people fell for this illusion that the state is only a paper tiger and they can win an urban guerrilla war against them.

‘Now with al Qaeda again we have people believing they go to paradise after they blew themselves up and that they are good Muslims if they cause a lot of destruction.

‘Terrorism is the enemy of all Socialism as it creates exactly the opposite reaction, it makes the state more right wing and is likely to destroy all Socialist advances made by peaceful negotiation.

‘If I knew of someone planning a terrorist atrocity I would definitely report them to the authorities because it’s not right. I believe that people being put up to those guerrilla activities are being used by some people for exactly the purpose to create a right-wing movement.’


The thing is, she may find that not all of her new colleagues in Respect share her stance. Respect MP George Galloway, for instance, believes it would be morally justified for a suicide bomber to kill Tony Blair.”


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