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Saturday, 22 May 2010

Down and Out in Slander and Libel

This is an edited version of this week's Bad Law column.


Many would perhaps not think of legal blogging as political blogging.

However, in my view, legal blogging can be incredibly political; indeed, more political than the endless and usually derivative partisan political blogs.

Law in action is, of course, very small ‘p’ political.

Choices are made about how to use – and misuse - the coercive power of the state and the courts: for example, whether to issue a libel claim form, or to bring a prosecution.

As a result of these choices there can be a real impact on public order or public debate, and adverse real effects on the day-to-day liberty and freedoms of citizens.

Politics simply does not end with the high-level policy and rule making of politicians and civil servants.

And so political blogging should not end with monitoring the comings and goings of the political class, who are in any case often indistinguishable from each other in any substantive policy terms.

Indeed, it can be argued that some of the more interesting political blogging starts where involvement of the political class ends: that is, with how policies and rules are implemented, and the effect of such policies and rules in concrete human situations.

George Orwell rarely wrote about Westminster and Whitehall.

His most brilliant political writing was about the effects on the ground: in the Spike, or at a hanging, or in the trench, or shooting an elephant, or just sitting uncomfortably inside either Victory Mentions or the Ministry of Truth.

One wonders what Orwell would have thought of defamation actions; but I hope he would have approved of the followers of this blog looking at how they actually work in practice, and the effects of those actions on free speech and public discourse.

And so I hope he would have joined us spending our time down and out in slander and libel.



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4 comments:

Dr. Brian Blood said...

From

http://www.orwell.ru/library/novels/Burmese_Days/gallery/html/003

regarding Burmese Days, we read that:

Richard Rees, the long-term editor-proprietor of The Adelphi, subsequently declared that Orwell's judgments “are clear cut black and white”; Orwell has demonstrated forcefully that the “British Empire is brutal and corrupt...” Gollancz, who not long before had to withdraw a book and pay damages, and who worried that publishing Burmese Days might again result in legal action, hesitated to bring out the book ... An English edition was brought out by Gollancz in June 1935. Subsequently, an unhappy Orwell called the Gollancz edition “garbled”.

Orwell, unlike his UK publisher, was quite prepared to ignore the possibility of actions for libel.

Other publishers were not so sanguine.

Wikipedia tells us:

Heinemann and Cape also turned it down for the same reasons [fear of actions for libel]. After demanding alterations, Harpers were prepared to publish it in the United States, where it made its debut in 1934. In the spring of 1935 Gollancz declared that he was prepared to publish Burmese Days provided Orwell was able to demonstrate it was not based on real people. Extensive checks were made in colonial lists that no British individuals could be confused with the characters. Many of the main European names have since been identified in the Rangoon Gazette and U Po Kyin was the name of a Burmese officer with him at the Police Training School in Mandalay. Gollancz published the work in July 1935.

As we see above, Orwell was not happy with the result which appears to have been unsympathetically edited.

Lallands Peat Worrier said...

Very much agree with your remarks on the politics of law and the very substantial and interesting contribution which blawging can make to meaningful and substantial political discussions. In my own small way, in the Scottish context I also try to make these connections in a way that the press and "purely" political folk rarely attempt.

Most of my favourite blogs are those which go beyond the repetitive niceties of press quotation and avoid solely becoming an echo-chamber for the news-cycle, largely concerned with the heroics and tragedies of personality politics, associated tittle-tattle and Westminster (or Holyrood) bellybutton fluff.

However, there are difficulties here. In particular, blawging for a political audience involves striking a difficult balance. When a dispute or a story becomes a "legal matter", even intelligent people frequently freeze in their tracks, caught in dumb deference to law's mysteries. For the irritable lawyer, this is at least preferable to the ignorant confidence we so often see in the press - who not only simplify but regularly distort legal understanding to make for a brisk headline. The weighty boredom of law - never to be underestimated - can also hit the snooze button before the politics of the thing can be fully articulated and appreciated.

It is also not unknown for lawyerish blogs to be or become rather isolated from the rest of political blogging community. Terribly fun for those who enjoy pouring over and producing exegetical legal comment, they might be, but remain islands isolated from the political main. This always struck me as a pity, but an understandable response to divergent interests.

I've manfully attempted to reconcile both themes - somewhat aided by clear party political commitments on my part, that mean I can sneak in the odd crumb of law into the dish, when my visitors' heads are turned. It isn't easy, however.

I wonder if the Americans manage this integration better, in part on account of the strong politicisation of constitutional adjudication. In this respect, however, the U.S. blogosphere may well simply be following the mainstream media's more acute legal sensibilities.

Nevertheless, I'd strongly argue that blogging lawyers like yourself - with political fingertips and the nimbleness to avoid writing like a dusty pettifogger - contribute something quite compelling, informative and informed through their participation in (I should say, membership of) the political blogosphere.

Dr. Brian Blood said...

Might I add this to my earler posting?

Originally published in 1936, before Orwell achieved fame, Keep the Aspidistra Flying takes Money as its theme. Gordon Comstock gives up a good job in an advertising agency to become part-time bookshop assistant at a meagre wage, thereby gaining leisure for writing. However, after some modest success in the world of letters he eventually slides into the abyss, to be rescued by the faithful Rosemary. Ironically, Gordon's voyage of discovery leads him back to commercial security, marriage, and the unexpected pleasures of domesticity. But above all he learns of the courage of keeping up appearances despite hardships. The symbol of this is the potted aspidistras: the ugly, stubborn, organic emblem of social and biological survival. This new edition restores most of the material censored on first publication due to fears of action for libel, defamation and obscenity Of particular interest are the previously suppressed advertising slogans of the 1930s and, in light of the censorship he experienced, Orwell's ironic choice of surname for Gordon: Comstock.

The source is:

http://www.randomhouse.com.au/Books/Default.aspx?Page=Book&ID=9780436231377

Howard Fredrics said...

Libel law is but one way to silence free speech in the UK. In the case of R v Fredrics [2009], the Magistrates' Court ruled that Dr Fredrics's publication of a website constituted harassment of Sir Peter Scott, in breach of the Protection from Harassment Act 1997. This was notwithstanding the fact that the Police investigation showed that the site contained no evidence of material that could support a charge of harassment. The decision was set aside in a ruling by a District Judge on 23 April 2010 on grounds that Dr Fredrics was unable to be present at trial and was also unrepresented in his absence. The case is presently listed for retrial in July 2010 before a District Judge. Dr Fredrics is now represented by Anthony Julius of Mishcon de Reya.