Sunday, 3 May 2015

Defamation

The defamation act is very clear that stating something that is substantially true is not defamation. This makes sense, as nobody should be in trouble for stating the truth in any civilised society.

I recently attended an industry conference, and one of the speakers presented a very interesting talk on the possible abuse of a grant process that could have wasted some £600k of public money. He was very very careful to state the facts, information he obtained from public records, and present them clearly. He was careful to not even express his own honest opinion on these facts (something that is also allowed by the defamation act).

I was rather surprised to find that the speaker has suppressed the video of his talk - well, that is his right, to some extent, but the talk was to a forum that pretty much allows any member of the public to register and attend, so was something of a public speech, I feel.

What concerns me if that he is somehow under some pressure to suppress what was said. That would be worrying.

What I also find rather worrying is that some of the comments on twitter are adamant that my understanding of the law (that the truth is allowed) is some how naive and not reality.

It seems to suggest some chilling effect - that people cannot rely on the fact that what they are saying is true as a basis for stating it, and that somehow it could cause "hassle" even if technically correct. I was even told "when do you show your defence? is that before or after you file for bankruptcy? i forget." which suggests some massive chilling effect on this.

This is not right!

In a civilised society nobody should be afraid of stating the truth. Whatever the law says, the fact that there is a perception that one cannot safely state the truth is a problem which needs addressing.

Am I wrong?

21 comments:

  1. Is this the talk that took place up north last month by any chance?

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  2. Well, you can see the whole act here:
    http://www.legislation.gov.uk/ukpga/2013/26/contents/enacted

    And to quote:
    "It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true."

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    1. Which, one might note, is effectively a reversal of the usual burden of proof. Normally, in a civil matter, it is for a claimant to prove on the balance of probabilities that they have made out their case: if they cannot do that, then the defendant has no case to answer. Here, the onus is on the defendant to prove that what s/he said was true.

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    2. Good point - and a shame it is that way around.

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    3. RevK, there is good reason the burden proof is like it is in defamation cases. Were the burden of proof as you seem to prefer it, anybody could make any kind of difficult to disprove statement about another without fear of repercussion. For example, A could publicly state that "B is an adulterer", which would leave B to prove that he is not, if the burden of proof was as you wish it to be.

      The reason the burden of proof is as it is in defamation cases is simple: If you speak publicly about someone else, you need to ensure that that the facts you state are substantially true. In the above example, if B sued, A would need to provide evidence for his assertion, e.g. evidence of an extramarital affair.

      The law is correct in principle. Whether it is being abused to put pressure on whistleblowers through fear of high legal cost is another matter.

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  3. You are not wrong and it would be nice but major corporation use threats of defamation laws regularly. Sometimes David don't back down and beat Goliath, look for (the excellent) McLibel documentary. But yes even if the law is the law it can be tortuous and expensive (in time and effort) to get justice....

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  4. Speaking the truth is the ultimate defence against defamation. Maybe the speaker received new information which caused him to doubt the truth of what he formerly stated. Just because he based his assertions mainly on public records doesn't mean it was true. He should have checked first, the defamation lawyers will say in court.

    I've come to appreciate the freedoms that US citizens enjoy against being sued for defamation. The freedom to speak out is protected by the constitution. You are right that the defamation milchkuhe which is the UK legal system has a chilling effect on those seeking to uncover wrong-doing.

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  5. TL;DR: you a both right, in part, in my view.

    Perhaps there is a parallel situation to consider: a breach of contract issue.

    From an academic legal perspective, in the event of a breach of contract, it is clear that the party who has suffered loss is entitled to be put in the position which s/he would have been in had the contract been properly performed, subject to a duty to mitigate loss.

    And, generally, having considered the various factors and worked out the nature of the breach, and whether the claimant had mitigated appropriately and so on, the law student would probably conclude her answer with the figure representing the damages to be recovered. Pen goes down (why one earth exams still need to be hand-written, but a matter for another day...) and the student moves on to the next question.

    In practice, however, it is probably not so easy. The defendant may disagree, and end up in correspondence over the precise nature of the breach, and culpability for it, and the exact measure of damages. The claimant then goes out off to find out the appropriate procedure for recovery, and sends a formal notice before action. They wait for the defendant's response, and time continues to pass. The claimant continues to invest time and effort in responding, as does — or perhaps might do — the defendant. They try to resolve the dispute through ADR, attending a phone call. No luck. So the claimant tries providing papers to a court, which loses the papers, despite clearly having had them. Eventually, everyone has the papers, and a hearing is set. Miles away. The parties might be tempted to rely on their written submissions, but there is that niggling feeling that, unless they are actually there in person, the other party might make some claim which makes the judge question your position, and so you trek up to the court, spending more time and money. When you get there, the judge works through the documents, but picks up on something which you had not really expected, and takes an approach which, whilst seeming odd, isn't something you can really argue with, and ends up ruling against you. You pay the defendant's costs, on top of all the time and effort you have wasted.

    And that's just the small claims court. In a defamation case, chances are it is the high court, for an interim application, where each party is likely to look for recovery of fees. And chances are lawyers will be involved, racking up bills quickly. And the matter may drag on over months after the interim application.

    Here, it seems that you may be closer to the law student: you have the law, you understand it, and can apply it to the facts. The outcome is clear, and so justice should be swift, cheap and decisive. And in your favour. The other party seems less worried by the wording of the law, but by the costs and hassle of dealing with a defamation claim, and the risk associated with it. Better, they seem to say, not to be in that position in the first place.

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  6. Was there that much detail in the talk that isn't in the slides (that are freely viewable)?

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    1. Assuming you know which talk it is - I think not, and the speaker was surprisingly careful. He may have his own reasons for suppressing the slides, and if that is the case I really have no issue, but I am concerned that he us under pressure - which should simply not happen IMHO.

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  7. Slightly off topic (but I couldn't resist since it also touches hugely on another favourite subject of this blog) but I am fascinated to understand the relationship between false spam reporting and defamation, i.e. the opposite side of the coin from RevK's experiences with UCE.

    Specifically, if someone makes a spam report about an email that they did in fact opt in to receive, from a company they do have a relationship with, can their action be considered to be defamatory? Can I claim damages if my business is harmed by such a false allegation (or simply recover the costs I incur in dealing with such a false report)?

    We come up against this issue surprisingly frequently at work - with ever more sophisticated anti-spam systems we now find regularly that our users (who have signed up, opted to receive regular email from us etc) end up marking emails from us as spam. This not only impacts our mail deliverability with the major webmail operators but we're now also seeing systems that automatically send angry and legally worded boilerplate messages to the company who host our servers, to the registrar with whom our domain is held, etc etc.

    If I'm woken up at 3am because of a critical support ticket from our hosting company which alleges that our systems may have been compromised because someone has emailed their abuse address with a false allegation that we are sending spam, what are my rights?

    There is almost nothing written about this online, but I have to imagine that as people start to come up with more and more sophisticated methods of fighting spam that this will happen more and more often.

    Would love to hear people's thoughts.

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    1. Nice devil's advocate point, and a fair question really.

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    2. A fascinating question, which needs a bit of thought.

      My gut reaction would be that an individual's report of spam, unless done maliciously, would be an expression of that individual's "honest opinion" as to the nature of the message.

      Outside the law of defamation though, it might be interesting to consider whether companies providing spam blacklists might have responsibilities under the tort of negligence (in the UK, at least), owing a duty to those whose ranges they list as spam to have taken at least some steps to verify?

      My second gut feeling is that this sounds like a problem for technology, not for law, though. And not only because suing an individual for defamation or negligence in such a situation sounds to me like it would have "Streisand effect" all over it...

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    3. > can their action be considered to be defamatory?

      (IANAL, but...)
      I would presume that taking court action shouldn't be considered defamation. Being very public about it all could well be though - e.g. publishing a widely read blog article, or telling the national press that company $foo has spammed you and that you're suing them may be defamation if company $foo did in fact not spam you because you had opted in. Possibly cause to avoid publishing anything until the case is settled.

      The other reason for not publishing things too early is that the defendant may require you to delete said articles as part of the settlement.

      > Can I claim damages if my business is harmed by such a false allegation (or simply recover the costs I incur in dealing with such a false report)?

      As RevK found out recently, if the court rules in the defendant's favor, the court can certainly award some costs at the same time, although I'm not clear on exactly what the limits are there.

      > we now find regularly that our users (who have signed up, opted to receive regular email from us etc) end up marking emails from us as spam.

      This is largely down to whether the end-user remembers that they signed up to the mailing list... I suspect a lot of the time, if they can't remember this then you might question whether you've received *informed* consent in the first place.

      Sticking "you subscribed to this" on the bottom of the email isn't helpful either - most of the spam I get (which I definitely didn't opt into) says this. Providing specifics about how and when the user signed up would probably be helpful though. At the end of the day, if someone signed up for marketing emails 5 years ago, it's pretty unlikely they remember doing so, and possibly unlikely they are still interested in them. This is significantly different to emails relating to an ongoing service that they are still receiving (e.g. service status updates from their ISP).

      However, unless you are a whole lot better than most companies I've dealt with about tracking your data, I suspect you would struggle to prove to a court that someone had actually opted in - when I send subject access requests to spammers, the usual response boils down to "we don't know when you opted in", "we don't know where we got your data", "your data was migrated from our old database on $date but we don't have records of it from before then", etc.

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    4. The first specific case I am thinking of is of a user of our website who had installed a spam system from www.spambully.co.uk which they had configured to automatically indentify the company hosting the website of the from: domain, and the registrar of the domain itself, and to send a canned email to the abuse@ addresses of those businesses making threats of legal action, damages, violating of the PECR etc etc.

      This system incorrectly determined that one of our emails was spam, with the result that an urgent support ticket was raised by our hosting company telling us that we were at risk of having our account suspended. [independently I am not at all impressed that our hosting company took this action based on a single report since it effectively represents a trivial social engineering DoS vector]

      The user in question freely admits that they did sign up to our service, that they had opted to receive our emails, and indeed that they wanted to continue receiving them. Clearly there was no malicious intent, but I would suggest that their action was negligent and/or barratrous since they did not in any way attempt to check that the claim their anti-spam system was making was valid.

      A second and related issue which vexes us from time to time is the case of people who want to continue to receive our emails but want to file them in their junk folder (!!!). This comes up quite regularly - someone marks an email as junk, we get a return-path notification from the mail company and automatically process an unsubscribe, and then a few days later we get a support ticket from the user asking why their emails from us have stopped!!

      This one is ultimately quite a fascinating question about UX for email clients - it's clear that users want a single button in their mail UI which means "file this message in a place where it is given less priority than other emails, and send all other mails that look like this one to the same place as well". In 99% of mail clients the only button that does that is the "spam" button, so that's what they press.

      Anyway sorry we're way off the defamation topic now so I'll stop...

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    5. > This system incorrectly determined that one of our emails was spam

      Which perhaps leads to the question "who, if anyone, has defamed you?". Is it the person who operates the system? Or are they just an intermediary, and so shielded? Is the person on whose behalf the system is operated — even though they have a legitimate purpose in mind (dealing with spam) and have no specific intent with regard to your particular company? (Neither of which is a great defence to a claim of defamation, in my view, but might go to the question of whether they are responsible for the speech.) I wonder also whether this kind of thing is envisaged by the defamation framework — it is not injury to your *reputation* resulting from someone's publication of an unfair or untrue statement, so much as wasting your time because your hosting provider jumped on the basis of one email.

      > people who want to continue to receive our emails but want to file them in their junk folder

      Not defamation (!) but, as you say, a technology issue. You might suggest to the client that they use a separate email address, or else create a rule which tags email from you as low priority and diverts to a different folder accordingly?

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    6. In this case the "system" is a piece of software our user downloaded and installed on his laptop, which plugs in to outlook. The emails sent to the hosting provider and registrar falsely alleging that my company committed various offences come from the user's own email address (and I assume are stored in their outlook sent items).

      The issue of whether the lack of a "specific target" make a difference is an interesting one. What if I write a twitter bot that periodically picks the name of a celebrity by scraping the Daily Mail website and then tweets at them and the Metropolitan Police accusing them of being a paedophile? Am I defaming them even though I had no specific target in mind when I wrote the bot and could not have known who its target would be?

      I believe defamation only requires one other person to be told something about me that hurts my reputation. In this case that person is the hosting company (who as a result accused me of sending UCE using their servers).

      And regarding people who file us in their spam folder but want us to keep sending them mail, alas there really is nothing we can do. Invariably these people are using an AOL account set up for them by a well-meaning relative and it's not possible for us to help them. As it happens false spam reporting is a violation of Yahoo mail's T&Cs so some of these people are breaching their contract with their webmail provider, but it seems pretty rude for us to start bringing that up!

      Ah the joys of dealing with the population at large...

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    7. > The emails sent to the hosting provider and registrar falsely alleging that my company committed various offences come from the user's own email address

      Does it require any user interaction? I wonder if it is one of the odd situations where, if a user was prompted to answer "do you believe that this is spam?", they might have a defence, whereas if it is automated, it might be harder to make out that defence.

      Interesting question as to whether your reputation is hurt, or whether it just triggers a breach of contract type approach by your hosting provider, who doesn't see your company in any different way reputationally.

      Although suing a user for defamation still sounds like a bad idea :)

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    8. It may be worth pointing out that libel laws in England and Wales have been amended fairly recently after a lengthy campaign by scientists, journalists etc. The Defamation Act 2013 says this:

      (1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

      (2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

      It's not clear that this spam report and a trigger-happy hosting company's overreaction caused "serious financial loss"...

      I agree with Neil: sounds like a bad idea!

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  8. I have to disagree, to an extent, with the tone of this blog post. You've missed one important detail. The speaker very clearly stated that he wanted to HOLD OFF publishing the talk "for a few weeks". This comment of his clearly implies he was awaiting the dust to settle on something. You've simply stated "he speaker has suppressed the video of his talk" and I feel this mis-reports the true nature of the situation.

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    1. It may be that I am not making my point clearly. If this is the speaker wanting to hold off or suppress the video for his own reasons, that is fine. If, however, as it "feels" he is feeling pressured in to suppressing or delaying publishing the truth by third parties or fear, then something is wrong with the law and the environment that is creating a chilling effect, and that I think needs to change.

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