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Sunday, 16 May 2010

What the Osler Decision Means

The Osler decision is a refreshingly liberal judgment, though one which is in the context of an ongoing overall failure of English libel law.

The Claimant's case was struck out by Sir David Eady, and it was struck out on two bases.

The first basis was that the claim was an "Abuse of Process".

The second basis was that the claim was brought in breach of the limitation period.

Both bases are interesting for understanding the current state of English libel law in general, and for understanding its application to blogs and material on the internet in particular.

(Please note that I was part of the pro bono legal team for Dave Osler in this case.)


Background

The material facts are these.

The Claimant published information on her website (the "Original Blogpost").

At the time the Claimant was highly active in local politics.

Dave Osler, a professional journalist and leading blogger, saw this information.

Linking to the Original Blogpost at least twice, he did a balanced and sympathetic blogpost (the "Osler Blogpost") summarising and commenting on what the Claimant had said.

The Osler Blogpost was as follows:

"Respect member's 'Baader-Meinhof link

"[The Claimant] – 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.

[The Claimant] – 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 Schöningh 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, [the Claimant] 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. [The Claimant] 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.

Posted at 23:58, 7 April 2007.



The Claimant took exception to this.

So, after some correspondence, Dave removes the Osler Blogpost and offers a right of reply, which is then published.

At some unknown point, the Original Blogpost is deleted and, just over a year after the Osler Blogpost was first published, the Claimant issues a lengthy and complex claim for libel against Dave.

At no point does the Claimant disclose the Original Blogpost.


Abuse of Process

The modern law on Abuse of Process in libel cases derives from the 2005 Jameel case; see paragraph 14 of the judgment:

"It is suggested by Mr Dougans [Robert Dougans, Dave's solicitor advocate] that there is nothing of substance to be gained from these proceedings by way of giving [The Claimant] any greater vindication of her reputation, if such was needed, than that already obtained three years ago by the publication of her response on 26 May 2007. He submits that, in all the circumstances, the case falls within the doctrine explained by the Court of Appeal in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946. It is said that there is no realistic prospect of a trial of these issues yielding any tangible or legitimate advantage, such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources, and that "the game is not worth the candle"."

In that decision the Court of Appeal held:

"It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake...We accept that in the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary for the protection of the claimant's reputation."


The only pity about this rule is the use of the word "rare".

Many defamation cases, especially those routinely threatened and sometimes brought by so-called "reputation management" solicitors (that is, those attempting to do Public Relations with the clumsy and illiberal use of libel threats), seem to fit this definition quite well.

In the Osler case, it was argued that as all the Osler Blogpost did was summarise and link to the original Blogpost.

However, as the Original Blogpost was not available, this was a difficult submission for Dave's solicitor advocate Robert Dougans to make.

Robert was able to submit the following as being beyond dispute about the content of the Original Blogpost:

a) The Claimant suffered prejudice because she had played a minor role in organising a benefit concert in aid of "Red Help", which provided legal assistance to left-wing radicals in Germany at that time.

b) The Claimant was arrested in Germany in July 1975 and suspected of links to left-wing extremists.

c) This was mentioned in the Spiegel article.

d) The Claimant was released without any finding of guilt and compensated for wrongful arrest and imprisonment.

e) The Claimant was never involved in violence and did not meet any of the supposed extremists mentioned in the article.

f) The Claimant is firmly opposed to terrorism.

Having established this, the question became how far the Osler Blogpost went beyond what could be established about the Original Blogpost.

On this Mr Justice Eady states at paragraph 18 of the judgment:

"It is clear from Mr Osler's wording in the offending post that he was quite prepared to accept [the Claimant]'s denial of any wrongdoing and the fact that she had been compensated for wrongful imprisonment. I am quite satisfied that the posting does not link her to terrorism, in the sense of suggesting in any way that she was directly linked with it or that she approved of the extremist activities. He was merely choosing to highlight an unusual event in the history of someone who was at the material time active in politics in London. He was, in effect, taking her own assessment of the situation at face value. He went on, as a matter of comment, to point up the irony that she was now linking herself with another political grouping, the Respect Party, which contained members who thought (at least according to Mr Osler) that terrorism or assassination could in certain circumstances be morally justifiable."

He continues at paragraph 20:

"The question arises, therefore, whether in the light of what actually appeared on Mr Osler's posting, in April 2007, and in the light of the right of reply published on 26 May 2007, there is anything to be gained from the continuation of these proceedings by way of the legitimate objectives of any defamation action, namely the vindication or restoration of the claimant's reputation. Is there anything requiring vindication? Needless to say, that question has to be judged by reference to any marginal damage that may have been done to [the Claimant]'s reputation by Mr Osler's posting over and above the impact on it of her own posting coupled with the republication of the 1975 Spiegel article."

Referring to Jameel, Mr Justice Eady summarises Robert's submissions:

i) Mr Osler made it clear that he saw no reason to reject [the Claimant]'s protestations as to her innocence of any implication in violence or terrorist activity.

ii) Accordingly, the only possible defamatory imputation of any substance is that, at one point in the distant past, she came under suspicion by the German police in the troubled climate of the mid 1970s (albeit subsequently vindicated by the recognition of wrongful imprisonment). To that extent, and to that extent only, the defamatory imputation would, on her own admission, be true.

iii) The only new material introduced by Mr Osler would appear to be the reference to Baader-Meinhof. Most reasonable readers would know, however, of the active involvement of that group, rather loosely defined, in political extremism at the time. It is a name which would, accordingly, spring to mind purely from the context – as it seems to have done in Mr Osler's case. It has to be remembered that it is not suggested that [the Claimant] had any direct involvement with Baader-Meinhof. The specific reference to that group, therefore, can in practical terms add virtually nothing to the suggestion that for a period she came under suspicion of involvement with extremist activities. It merely identifies one particular group within that broad category.

iv) It is true that Mr Osler added the comment that "the worst she stands accused of is youthful folly". That is not a particularly serious allegation in any event, but in context it plainly relates to the activities (whatever they were) which led her to be arrested and (albeit wrongfully) imprisoned. He refers to "many young people attracted to far left politics", which he assumes is an apt description of Ms [The Claimant]'s standpoint at that time, but he is not even suggesting that she was "passively sympathetic to groups such as the Baader-Meinhof gang". It is a general comment about young people of the period who have become subsequently "rehabilitated".

v) If there had been any sting in the original 7 April posting, it would surely have been drawn for practical purposes by the "right of reply" published three weeks later,


Mr Justice Eady then concludes:

"It is necessary, therefore, to try and assess what a jury would make of the alleged injury to [the Claimant]'s reputation against the background I have described. If the jury came to the conclusion that none of the defences raised could succeed, I cannot imagine that the damages would be other than very modest. I would take the view that any such award would be out of all proportion to the time and money spent on this litigation and, in particular, to the cost of a two-week jury trial.

In the circumstances, I have come to the conclusion that this is indeed one of those unusual cases in which the doctrine of abuse of process, as discussed by the Court of Appeal in Jameel, should be applied."



What this means is that when a claimant cannot establish that a publication goes further in its defamatory "sting" than what the claimant published themselves, especially when complemented with a right of reply, then the court will be minded to strike the claim out as an abuse.

This must be correct.

And, as linking, fair summaries, and rights of reply are good blogging practice in any case, then this may not be a difficult defence to raise in appropriate circumstances.

But more interesting for bloggers, and indeed other publishers on the internet, is the liberal approach Mr Justice Eady then adopts to the application of the statutory limitation period.


Limitation Act

A claim for defamation has to take place within a year of publication.

However, in this case the Claimant brought the case just over a year later. Undoubtedly, the Claimant was relying on the notion that the material continued to be "published" until Dave had taken it down.

Here Mr Justice Eady states:

"...as to limitation, it is clearly right in principle that [the Claimant] should be confined to any publication(s) within the 12 month period preceding the date of issue. That being so, it becomes yet more apparent how disproportionate the claim is."

One of my criticisms of English libel law is that requires so little for a claimant to show before threatening or issuing a claim.

It is thereby pleasing that the Claimant in this case was required to show publication.

And she could not:

"It would be for [the Claimant] to demonstrate that Mr Osler was responsible for some repeated or continued publication during the relevant 12 month period. She cannot rely on any presumption to that effect. His evidence (which I see no reason to reject) is that the posting was by 28 April 2007 off the front page and only accessible to an active searcher looking for it in the archive. Furthermore, as he put it, the article was "unpublished" by the time of the reply on 26 May 2007. In those circumstances, it seems to be clear that the law would require [The Claimant] to identify any specific examples of publication: see e.g. Al Amoudi v Brisard [2007] 1 WLR 113. Mr Dougans submits that there was only one comment on the post subsequent to 28 April 2007 (by someone using the name 'Alex'), and this in itself does not demonstrate that the person concerned actually dug out the original posting after that date. It is at least possible, for example, that he relied on memory or, alternatively, was making a comment on earlier comments."

Mr Justice Eady then adds:

"[The Claimant] has put forward a 'Bundle C' to seek to show that the post of 7 April 2007 was read after 28 April. Assuming she is right about that, for the purposes of the present application, the number of publications after that date would be very small and would still fall within the Jameel doctrine. To pursue the claim in the hope of achieving additional vindication in the eyes of that small group would not be "worth the candle"."

This means that bloggers and other internet publishers are less exposed to a libel claim in respect of stale material.

After a year from publication it will be for the claimant to prove there has been a substantial fresh publication.


Disclosure

Mr Justice Eady also dealt with the disclosure question. The most worrying issue in this case was the failure by the Claimant to disclose the Original Blogpost.

(Please be assured that Robert and I have everything which can be recovered in this respect.)

But even this would have provided no protection for the Claimant had the claim not been struck out:

"Likewise, it becomes unnecessary to make an order for further disclosure of documents. I would otherwise order that [The Claimant] should give disclosure of her own posting, as to which Mr Osler has given evidence and on which he based the words complained of. If she no longer has it, she would have to provide a witness statement indicating her best recollection of what happened to it."



Conclusions

Now that the case has been struck out, it is difficult to believe it continued for two years and was about to be put to a full jury trial.

However, the complications and technical nature of libel law means that once claims are launched they are excruciatingly expensive in terms of time and money to close down, even when - as in this case - the claim was not clearly not actionable in the first place.

In the upcoming debate over libel reform, it will not be enough to look only at discrete and particular proposals for reform.

There needs to be a fundamental consideration of the role of private right to a reputation in a modern society that requires free discourse on public matters.

Here it is significant that the Osler Blogpost was a non-actionable publication relevant to the political activities of a Claimant, and it was a publication based on publications freely made by the Claimant.

For this to lead to two years of litigation, resolvable only by the pro bono intervention of specialised lawyers, cannot be characterised in any other way than as a fail.

It is by examples such as these that we can see how libel disfigures our polity and our public debates.

And the challenge for those of us who urge libel reform is to ensure such failures do in fact become the rarity that Court of Appeal loftily and wrongly believed them to be in Jameel.


NOMENCLATURE

The Claimant has been very greatly upset by this judgment and the attendant publicity.

I really have no wish to cause her further upset and distress. Accordingly, I have used "The Claimant" instead of her name, and I have also sought to minimise any criticism of her.

There is one outstanding case, against Alex Hilton and John Gray. Robert and I are seeking to close that case down too and then apply for an order restraining the Claimant from commencing other such claims. That is all, I think, which needs to be done in respect of the Claimant.


COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

**No comments directly critical of the Claimant, or naming her, will be published**

4 comments:

John Collins said...

Not wishing to carp at your excellent analysis of the judgment, I did wonder if your comment about getting a restriction of proceedings order applied. By my reading of the Senior (renamed from Supreme) Court Act 1981 Section 42 you have to persuade the Attorney-General to do it.

As meaningless as the libel cases issued by the Claimant are or were, I don't see that they (yet) qualify for the description "habitually and persistently" given in the Act.

Hopefully a few adverse costs orders may assist in persuading this Claimant that libel suits may not be the answer to her problems.

Schroedinger99 said...

Clearly the defendant in this case, Dave Osler, was very ill-served by our libel laws; and Dave, and all bloggers, obviously owe JackofKent and his colleagues a huge debt of gratitude for their sterling pro bono work on this case.

One cannot help feeling (without, for obvious reasons, fully spelling out what I wish to say) that the claimant has also been rather ill-served by those same laws and the associated institutions which allowed this case to go as far as it did.

Dave Cole said...

Jack,

Would I be right in thinking that the burden in Jameel is up there with Wednesbury in terms of being difficult to achieve?

Dave.

Mike from Ottawa said...

I do hope someone is carefully archiving The Claimant's latest blog postings, which are quite interesting.