In the wake of Deep Climate’s shark-jumping post accusing Rapp of ghost-writing portions of the Wegman report, blog visitors are discussing libel law. Of course, everyone also remembers Simon giving us an earful about saying bad things about Phil Jones– some of which Simon considers libel, and others have been throwing the word “libel” around in regard to the whole Wang may have made something or other about stations in China business.
Clearly, given all the differences of opinion on what is or is not libel in the US, UK, Australia, Canada and other countries, we needed major newspaper to take up the baton and write an editorial. The editors of the Wall Street Journal must have been listening, because today’s Journal included an opinion piece discussing UK vs. American law (including some history.) You can read it here.
Interesting tidbits:
In 17th-century England, the Court of the Star Chamber targeted political speech, with criticism of the government viewed as an offense. Truth was no defense. Indeed, a maxim was that “the greater the truth, the greater the libel.”
Wow!
Clearly years before casting off the yoke of British tyranny, Americans saw things a bit differently:
Americans preferred free speech. In 1735, a New York City jury acquitted newspaper publisher John Peter Zenger, who’d been charged with seditious libel for criticizing the English governor. The jury established that in the colonies, truth was a defense against libel charges.
Truth is a defense of libel is a principle I sure as heck endorse. (Evidently, the Brits eventually came around to accepting this principle. Fancy that.)
Still, the burden of proof remains different in the US and the UK:
In the U.S., plaintiffs have to prove statements about them are false, and public figures must prove reckless disregard for the truth. In England, defendants have the burden of proof, with statements presumed to be false.
Well… UK law sure is ass-backward! But my impression is Australian law may be a bit better. David Gould commented that plaintiffs have to prove harm in Australia. This is also true in the US (though my impression is with libel, harm doesn’t have to be monetary).
It’s not clear that any real harm is required to win a libel case in the UK or at least the harm doesn’t have to happen in the UK:
Plaintiffs from around the world sue in England based on the fact that Web sites can be viewed anywhere, including there, even if few Brits read the alleged libel or care about the plaintiff’s reputation. One proposed reform is that 10% of the readers of an article must be in England to justify a lawsuit.
Are they saying, the UK will recognize your harm even if no one in the UK ever read the libel… huh? Examples of cases UK was recognized as within its jurisdiction:
An Icelandic businessman used London courts to sue an Icelandic academic for comments he’d posted on the University of Iceland’s Web site.
Okey…. dokey….
Ok, but I’m American. Should I worry? Maybe. Or maybe not. Get this:
Some high-profile cases have been brought by people accused of bankrolling terrorists. American author Rachel Ehrenfeld sold just 23 copies in England of a book called “Funding Evil,” which accused a Saudi banker of channeling money to al Qaeda. He sued. Ms. Ehrenfeld refused to acknowledge the court’s jurisdiction. The court entered a default judgment against her. New York state responded with a law making it hard to enforce English libel judgments.
Looks like that Saudi banker may have won a Pyrric victory! The UK might think Ms. Ehrenfeld needs to fork over big bucks, but it also looks like NY state ain’t gonna force her to do so!
I’m betting if other Americans lose similar libel cases in the UK, other American states would follow New York’s lead on this one. Of course, getting sued would still be inconvenient.
But… well… American’s notions about libel have differed from British notions for a long time. Plus, based on the WSJ article, it looks like the UK is going to swing toward our view, and not the other way around!
Now if only we can get the WSJ to tell us something about Canadian libel law! I’d post and let Deep Climate read up.
I would advise “Deep Climate” to pay no heed to Canadian libel laws. Just keep talking, deepster. We loves ya.
Actually, I’ll take Deep’s side on this. His conclusions were fast and he probably had the copying accusation in the wrong direction, but we should let no government determine what we can say or write. The UK law is clearly designed to censor opinion, so don’t worry deep, let your opinions fly.
From my limited understand of libel law in Canada, Deep Climate should be ok since he quickly and prominently posted his retraction and apology.
I think this is germane to the question of Canadian defamation law:
It is still the case in Canada btw that even telling the truth is not a defense, nor is proof of intent to defame a requirement (it is assumed from a legal stand point).
You can see why DC backpedaled a bit on this.
I wonder if Wegman cares or knows of the long-running string of attack articles on him by DeepClimate?
Let Deep Climate speak! Free the code! Free the mouth!
I believe truth is not an *absolute* defense in Canada. It is a defense though, at least if I remember my basic engineering law book from many years ago.
Maybe all this goes a direction Deep never has expected or wanted when he originally wrote that canard. That’s why he almost begged Rapp to admit that he ghostwrited for Wegman.
Remember, this is the first time in a decade that the Climatatii are really in the defense and just don’t know how to handle this situation and are grasping desperately for new arguments to neutralize the Climategate tsunami. I already made the comparison with a wall where water is seeping through ever increasing cracks.
Firstly, who exactly was allegedly libeled in this case? Wegman?
Secondly, I think the WSJ missed the real significance of the Ehrenfeld case: she was sued in the UK based on her book being available in the UK only on Amazon.com; that is to say, there never was UK distribution for the book. Part of the story is how easy it is to sue there, but the part that caused the NY state assembly to act was the way they asserted jurisdiction.
This is why this is coming to a head in the UK: they set a precedent where you can be sued even if neither party resides in the UK, and the allegedly libelous material wasn’t formally available in the UK, but becomes available through the nexus of the internet. That threatens to make anything on the internet subject to UK jurisdiction.
Calvin–
Given the example involving Icelanders posting on a blog in Iceland it sounds like it’s already happened and they are trying to fix it.
Calvin–
I forgot to answer this. Donald Rapp.
Canada’s law has probably gotten all fouled up with the proceedings before their human rights commissions. See the recent case involving Mark Steyn. Apparently, in those cases, truth is not a defense. They have the PC attitude that hurt feelings trump everything. And I have no idea how a standard libel case would be handled. I guess the lesson is to make sure never to say anything unkind about anyone except white male straight Christians who aren’t too old.
Stan, that was extrajudicial. Steyn’s (and Levant’s) whole strategy was to dare them to rule against them, just so that they would have standing to appeal to a real court. Canada’s real courts are nowhere near as fast and loose as the HRCs.
The HRCs, wisely, blinked.
Lucia, I think that Rapp would have a hard time proving injury. Is it really an injurious accusation? It may be a kooky conspiracy theory, but it’s a stretch to say that it caused tangible injury.
The question would be damages, which Canadian courts tend to deal with strictly. e.g. someone can “win” and be awarded only $1 in damages and no costs.
one of the most painful issues for UK libel cases is the issue of costs. The most you can win for libel is £200k. By contrast, the costs of fighting an action can exceed £1million. So who wins or loses normally determines who pays all the costs for both sides.
It is an interesting question about jurisdiction. If you say that e.g. a webserver/publisher not in the UK should be outside the jurisdiction from libel law, it would provide a strong incentive for UK publisher to emigrate. It would make a mockery of the law if you could say something on widely accessed media outside the UK, but be sued if you came inside, given the pervasiveness of the internet.
per
SteveMcIntyre–
I think the same same holds in the US. You could prove libel but be awarded nothing.
per–
I’m not sure exactly where the bright line for jurisdiction should be. That said, but UK jurisdiction including one Icelander suing another Icelander for comments on site hosted in Iceland seems like a bit of a stretch.
The right of petition as defense against libel was won by the Seven Bishops in their trial when thrown in jail by King James II for libel. Their courageous stand on the right to petition was codified in the English Bill of Rights (1689). Rights preserved in the Magna Carta should apply both to the UK, Canada, the USA.
UK libel law is indeed terrible. Truth is a defence to civil libel, but not to criminal libel, although criminal libel has been largely thrown out by the European courts.
The main difference is, as you say, the burden of proof, which in the UK rests with the accused not the accuser. There is also the issue of jurisdiction, with the UK taking a remarkably broad view (though one could point out that the US takes a remarkably similar broad view of its jurisdiction in certain criminal cases).
There is also the extraordinary phenomena of UK injunctions and super injunctions; see for example the discussion at http://order-order.com/2009/12/12/tiger-woods-nigel-griffiths-naked-abuse-of-the-law/ about the Tiger Woods example.
This makes all the more remarkable the recent accusations agaisnt Pachauri by Booker and North; see the EU Referendum blog.
There’s another example of the absurdity of UK libel laws in today’s Guardian, with a Danish radioloogist being sued by GE Healthcare over remarks he made in a presentation to a conference in Oxford a couple of years back.
http://www.guardian.co.uk/science/2009/dec/20/scientist-libel-law-henrik-thomsen
The UK v US thing is really a question of whose rights get protected. In the US it is the rights of media and accusing politicians that are important so the law protects those making claims rather than peoples reputations — aids the media in exposing corruption at the risk of allowing vexatious persecution. The UK the indiviuals reputation is more important than the publics right to know so it should be harder for the media etc to expose corruption altho anybody who reads Brit tabloids will realise rich media is quite prepared to take a hit in a libel action to expose even vexatiously. Also in Brit and Aust (and maybe Canada) this is balanced by parlimentary privelige i.e. a politician can’t face a libel action at all if what they say is in parliment (there are some conventions that are meant to restrict vexatious claims but in recent years these seem to have been forgotten) — so in some ways exposure and the public’s right to know is *more* in Brit etc than the US if you can convince a politician to speak up.
jeff id,
Don’t let DC off the hook too quickly. Not only did he rush to judgment, but his non-apology continues to make accusations completely unsupported by any facts. His update says: “It is clear that the circumstances and contents of both the Wegman report and Rapp’s text book deserve closer scrutiny.” However, he provides zero evidence for any misconduct by Wegman. His charges are reckless and irresponsible and rather telling as to the integrity of Mr. Deep Climate.
DC’s comments are probably actionable even under the high bar of US libel law.
AndrewKennett
Well… our senators can’t be arrested for any speech or questioned about any speech made in congress. I don’t know if this shields them from libel. Here’s the clause in the US constitution:
Questioned only covers the “questioned by the goverment, judge etc”. Obviously, voters can ask congressman whatever the heck they want!
The First Amendment does refer to the “press” specifically, and that has been interpreted by the courts as granting them special dispensation, but not wrt libel law. The distinction that the courts have drawn wrt libel law is between public figures (not limited to elected officials) and “private” citizens. This is why bloggers can call Obama just about anything with impunity. And you can get away with saying things about celebrities too, but the bar is a little lower. But if you call your neighbor a child molester (and he’s not) on a blog, you’re in serious trouble.
Lucia, I think that was to prevent one faction from arresting someone from another faction, and preventing him from attending congress. They can be arrested after the session if they’ve broken the law. Ask Larry Craig.
It’s a little like diplomatic immunity; the diplomat can’t be arrested, but he can be expelled. It’s not as if they can break the law with no consequences.
Calvin–
Yes. They can be arrested for crimes after congress is out of session. But I think this is a standalone clause “and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
The arresting bit is only on the way to congress. But the “can’t be questioned in any other place” is everywhere and for always– provided the speech is in congress. But… ask a lawyer to be sure.
I’m with Calvin. After all this talk, I still haven’t found out what is the alleged damaging libel.
Nick, my perspective is nobody heard of Donald Rapp before, lots more people know about him now. Probably this is an example of “any press is good press”. If he sues, even more would hear of him, and he would be seen by the denialist crowd as a bit of a folk hero for “resisting” the oppression of the AGWers, which means speaking engagements, more exposure, etc.
But that doesn’t mean he doesn’t have standing for a lawsuit. One would have to be an lawyer experienced with law in that country to make any real judgement, and I’m certainly not going to speculate from the position of ignorance.
Nick Stokes,
“I’m with Calvin. After all this talk, I still haven’t found out what is the alleged damaging libel.”
You didn’t think it was libelous that DC was accusing Rapp of COPYING large sections of text from the Wegman Report and/or some other reference??
DC tried to spin it as Rapp copying his own GHOST Writing from the Wegman report. A strange accusation with little to no factual support that WOULD indicate Plagiarism if true and if Rapp did NOT Ghost Write for Wegman.
So was Rapp guilty of:
1) not giving detailed attribution
2) accidentally writing definitions virtually identical to others
3) plagiarism
4) having a student write it and having no idea where it came from?? (as I call it the Wang defense)
“In the US it is the rights of media and accusing politicians that are important so the law protects those making claims rather than peoples reputations — aids the media in exposing corruption at the risk of allowing vexatious persecution.”
Actually you got that importantly backward. Compared to the UK, the US libel law discourages libel suits because the burden is on the accuser. The downside is that it thereby encourages potentially outrageous public speech, especially vs public figures. The UK law actually encourages “vexatious persecution”, and hence inhibits public accusatory speech.
Lucia, the US constitution phrase “and for any Speech or Debate in either House, they shall not be questioned in any other Place” would appear to be based on (plagiarised from?!?) the 1689 Bill of Rights Article 9 “freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. This was intended to reaffirm the immunity of Parliament to interference by the monarch through proceedings in Star Chamber, although Star Chamber was abolished in 1641 by the Habeas Corpus act of 1640.
If I publish an article claiming that Lucia is a cannibal, and Lucia sues me for libel, who should have to prove their case?
Should I have to prove Lucia is a cannibal? Or should Lucia be forced to prove she isn’t? Lucia believes she should be forced to prove she isn’t.
The American system, that Lucia supports, does support greater freedom to publish, but the opposite position is also quite defensible.
AreaMan–
In the US, I would have to prove I am not a cannibal when suing you for libelous cannibal accusations. In Canada, evidently, you would have to prove I am a cannibal.
Yes. I like this organization. I’m pretty sure the burden of proof is only “preponderance of the evidence” and not “beyond a reasonable doubt”. So, with respect to the cannibal accusation, I’m pretty sure I could convince a judge or jury that there is a better than 50% chance I am not a cannibal.
Canada’s libel laws just got re-written by the supreme court:
http://www.nationalpost.com/news/story.html?id=2370515
That should have read “Pyrrhic” victory, not “Phyrric”. Pyrrhus, King of Epirus, after being congradulated for a victory over the Romans, is supposed to have said,
“Another such victory will ruin me.”
In the common law provinces of Canada (note that Quebec, which has a civil code, is somewhat different), truth is an absolute defence to a defamation suit.
The plaintiff must show that the statements complained of would lower the reputation of the plaintiff in his or her community in the estimation of “reasonable†persons. This is a relatively low burden to discharge.
There are three defences: truth (justification); fair comment; and privilege.
Once the plaintiff has discharged his or her burden of showing that the comments are defamatory, the defendendant must prove the defence.
Damage awards are significantly smaller in Canada than in the US (for almost everything). And a plaintiff bringing a lawsuit unsuccessfully has to pay (a portion of) the defence’s court costs (whereas in most jurisdictions in the US, this is not the case).
You know its better to be thought a fool and remain silent than to speak and remove all doubt.
I just wonder if bugs can sue himself for self-defamation. Hmm maybe he doesnt have standing. But it would be funny to see him represent himself in a suit against himself, defended by himself.
Go ahead bugs, remove all doubt, and tell us again about LTP.
Canadian libel law was effectively changed today, by the supreme court. It liberalized libel law, to the extent that, as CTV states:
.
The responsible journalism defence allows for factual errors as long as journalists acted responsibly and in the public interest when reporting on a story.
.
This also applies to “communicators”, and not just journalists.
.
As I understand it, as long as the “communicator” practices due diligence, they will not be liable for any damages due to any errors in the story.
.
Lawyer Peter Jacobsen, who intervened in the case on behalf of CTVglobemedia, called it “a seminal decision that is going to greatly advance the cause of freedom of speech.”
“Basically what the court did is they said where the media or a communicator has acted responsibly and reported on a matter in the public interest, they will have a strong defence against a libel claim,” he explained to CTV News Channel on Tuesday morning.
.
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20091222/responsible_journalism_091222/20091222?hub=TopStoriesV2
Ben Goldacre of badscience has a post on british libel law —
Libel Reform
— Yesterday morning I helped to launch the libel reform campaign in parliament with Index on Censorship, English PEN and Sense About Science. To be fair, the best line came the day before at the celeb launch from Alexei Sayle, who explained that he was once sued for libel by someone, and it cost over £100,000 to defend: “it would have been cheaperâ€, he explained, “if I’d just stabbed the f*cker.â€
The report is extremely good and I encourage you to read it here:
http://libelreform.org/our-report
Libel is an issue close to my heart. […]”
http://www.badscience.net/2009/12/libel-reform/
One good thing about this Deep Climate screwup … I think I’ll buy myself a copy of Rapp’s book now …
http://www.theaustralian.com.au/news/opinion/law-is-an-ass-to-media-defendants/story-e6frg6zo-1225813287953
This is an article on Australian defamation law.
Re: Jonathan (Comment#28936) December 21st, 2009 at 3:28 pm
“This makes all the more remarkable the recent accusations against Pachauri by Booker and North; see the EU Referendum blog.”
Well, it seems that Pachauri and co-conspirators have now struck. Richard North describes himself as bound by a vow of silence and then goes on to conjecture a bit.
Lets hope that this is the Streisand effect at work. Spread the word!
Actually, as a practical matter in the USA, the defendant also has the burden of proof.
The plaintiff must establish that a libel or slander has occurred.
Once it is established that a defamatory statement has been made the defendant then has the burden of establishing that the statement was either priveledged speech and therefore not subject to suit or that the statment was true which is in all or nearly all jurisdictions an affirmative defense.
On the matter of damages it is quite common for zero or one dollar damage to be assessed. However in some jurisdictions even if no economic damage can be proved, exemplary or punitive damages can still be assessed to punish or discourage particulary egregious behvaior.
As I said in another thread the doctrine of slander per se encompaases the concept that some statements are so harmful on their face that damage can be presumed by the court without a demonstration of actual or enumerated damages.This doctrine of presumptive damage is slowly being eroded.