Mike Butcher - mbites - Journalism, Blogging, Events, Strategy

Libel and Defamation law for Bloggers

Mike Butcher — Fri, 18 Apr 2008 06:54:19 -0500

Being a traditionally trained journalist (prior to entering the blogging world a few years ago) I have always had a healthy respect for the libel law in the UK, which is, in the main, anti-media, anti-journalism, and now out of date in the new online world. However, a recent conversation with an extremely helpful lawyer, Victoria McEvedy of McEvedy & Associates (www.mcevedy.eu), has resulted in her sending me a "Primer on Defamation for Bloggers" which (gasp!) actually points to a defence you could use in your blogging, were a libel action mounted against you and your content. It's not literally 'new news', but it's the best explanation I've come across yet about this subject.

It turns out that bloggers - along with the rest of the media - are also now able to make use of a special form of privilege, known as "The Reynolds defense of Responsible Journalism." This requires a Defendant (that's you the blogger) to show that the publication was:

(1) in the public interest

(2) that the you met the standard of Responsible Journalism on the date the blog post went live

Key to this is that the defence is not dependant on proving Truth, which is usually the defense a media outfit relies on and is often really hard to get at. That is a big deal. In other words, you don't have to prove what you are blogging about someone is true, but you have to prove you met the standard of "Responsible Journalism" before you pressed the Publish button.

So if you publish material of public interest "in any medium" then bloggers, by definition, can use this defense.

Most critical to your defense is the requirement that the subject of the blog post must be:

1. Given the precise allegations that are to be published
2. A meaningful opportunity to respond to them
3. The gist of that response should be published in a balanced way

I am re-printing below what was sent to me in a word document. Let's spread this knowledge...

Primer on Defamation for Bloggers
--------------------------------------------

The elements of a cause of action for defamation are:

1. A defamatory (pejorative) statement.
2. Published by the Defendant.
3. Reasonably understood to refer to the Claimant.

Be aware that repeating a statement makes you liable for it. It is no defense to libel that one was merely repeating the statements of another—this is the repetition rule. In addition, the republication rule means you can be liable for damages for all foreseeable republications by others who repeat it. This stems from the fact that every of a libel is a new libel, and each publisher is answerable for his act to the same extent as if it originated with him.

Once the Claimant has proved the above, the burden shifts to the Defendant to establish one of 3 primary defenses:

• Truth (justification)
• Fair Comment (honest opinion based on true facts)
• Privilege.

If the Defendant cannot make out a defense, the Claimant will succeed and the defamatory statement, if written becomes a Libel, and if oral, a Slander. The Claimant is then entitled as of right, to an award of general damages without need for proof of damage because it is presumed that some damage will flow from the invasion of the right to reputation.

The real defense is privilege. The others are too onerous.

The media now has a special form of privilege, the Reynolds defense of Responsible Journalism. This Reynolds defense requires a Defendant to show that the publication was (1) in the public interest; and (2) that the Defendant met the standard of Responsible Journalism as at the date of publication. The defense is not dependant on proving Truth. It is the main defense the media will rely on.

The courts have indicated that this will be available to anyone who publishes material of public interest in any medium. That means bloggers.

Bloggers should therefore be aware of the 10 point test below from Reynolds v Times [1999] UKHL 45. Most critical are the requirement that the subject of the article must be given the precise allegations that are to be published and a meaningful opportunity to respond to them and the gist of that response should be published in a balanced way. The table below is designed to act as a prompt or checklist.

The 10 point test

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

In plain English:

This affects the rest, if it's career ending then all the more important that due caution is exercised.

2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.

In plain English:

The hook on which everything else will be hung, this is the reason the public should know, irrespective of the fact that the writer can’t prove its true and it might not be.

3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

In plain English:

What is the quality, how reliable are they, how direct is their knowledge? Are they biased, holding a grudge or beyond reproach? Are they being paid for the story? The answers to these questions should inform the writer of the level of verification necessary. Even if the identity of the source is withheld—as may be appropriate, these questions must be asked and answered.

4. The steps taken to verify the information.

In plain English:

What or who verified the source’s information? What steps were taken to verify even if unsuccessful or did they not bother? Who did not verify?

5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.

In plain English:

What is the quality? Are they uncorroborated allegations or the subject of official inquiries, investigations or findings? Rumor and speculation has no status nor does the premature allocation of blame. Care should be exercised.

6. The urgency of the matter. News is often a perishable commodity.

In plain English:

News is a perishable commodity but is there an urgent need for the public to be told of untested and highly damaging allegations? The writer’s own interest in a scoop is not relevant nor is their convenience or deadline.

7. Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
In plain English:
A meaning opportunity to respond to the precise allegations should be given. Door stopping, calls with half an hour before print/broadcast and ambushing are not a proper opportunity to give a measured response to very serious allegations.

8. Whether the article contained the gist of the claimant's side of the story.

In plain English:

Formulaic references to a denial may not be enough nor any longer will the one paragraph at the end provide sufficient balance to an article full of allegations of the utmost seriousness laid out in great detail.

9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

In plain English:

Sensational will cost the writer as will adopting mere allegations as facts, premature allocation of blame.

10. The circumstances of the publication, including the timing.

In plain English:

The writer’s subjective belief as to the truth of the story is important.

Where publication is continuing in an online form –once the writer/publisher is advised of its untruth or the commencement of a libel claim –they can lose the benefit of the defense if continuing to publish without correction or qualification. So a story that originally qualified for the defense can lose it later if events render continuing publication irresponsible in light of facts of matters which have changed. It is now common practice for notices to be affixed online to inform readers that the item is the subject of a libel action.

This article does not provide legal advice but rather general information. It is not a complete discussion nor a substitute for legal advice. This is general information provided on an as-is basis and no warranties are given and no relationship created.

McEvedy & Associates
www.mcevedy.eu

Recent sightings of me on TV

Mike Butcher — Tue, 05 Feb 2008 15:48:45 -0600

Here are my recent appearances last week on Sky and Channel 4 News talking about the Microsoft bid for Yahoo. It was a crazy Friday involving getting across London twice in one evening. Kinda fun though. (Thanks to Paul Walsh for the videos).

On Sky News: http://qik.com/video/14393

On Channel 4: http://qik.com/video/14385

Is Twitter now an enterprise productivity tool?

Mike Butcher — Thu, 31 Jan 2008 09:00:22 -0600

I would have to concur with Marshall Kirkpatrick. I also now use Twitter as a working tool, not just for 'status upates' (which I don't really do any more unless I can say something vaguely informative or funny). I use it to interrogate and interact with my work and social contacts. It's now one big ongoing conversation which can help me in my work, and especially in writing stories. I also was one of those who broke the story about Google buying Jaiku, and I got that because of seeing a Twitter post from a contact. As Marshall says:

People laugh at Twitter, and they can go ahead and laugh for all I care, but I'm here to tell you that it can be invaluable. Aside from the personal connectedness and relationship maintenance it's good for, let's be honest - it's paying my rent. (Thanks Twitter!) I don't mean they've hired me as a consultant, though I would love that, I mean Twitter is great for news discovery.

Here's why TV is in trouble

Mike Butcher — Fri, 25 Jan 2008 09:03:00 -0600

People in the TV business are some of the most creative people you will ever meet. So why is it that the body set up to market the major broadcasters to advertisers (Thinkbox) allows you, via their site, to watch some of the most creative, clever adverts you will ever see... but you can't embed the ads in a blog post or share them on a MySpace on Facebook profile.

Like, er, duh.

This would be obvious to anyone working in the 'digital media' business, but to the TV guys? Computer says no.

Twitter killed the Status Star

Mike Butcher — Thu, 10 Jan 2008 08:14:18 -0600

When Twitter started out it seemed like a cool new web application to update your 'status' (what you are up to) for friends and, well, the world in general. Like Facebook status updates, but out on the Wild Web. But when people started having conversations via their Twitter status updates using the "@" symbol (e.g. "@mike Yeah, I thought that")I was initially quite annoyed. I even direct-messaged some people to tell them to stop it! Go get a chat room! This was not the proper use of Twitter, I told them.

How wrong I was.

It quickly became apparent that this was turning into the best use of Twitter of all. Not for long, winding conversations you might have on instant messaging, but short, to the point wise-cracks between people interspersed with a little status update here, a small observation on life there. Twitter was no longer about 'status' or 'what are you doing'. It was about conversation, 'what are you thinking', 'what are we talking about'.

The key difference is that people who say "take this conversation over into IM" don't get it. IM can't do what Twitter does. You can't instant message into "the cloud". With Twitter you can. You can shout or whisper whatever you want to say out into the ether and anyone online can hear you. And anyone following you, even if you don;t follow them, can reply - then you may well become connected.

Of course, the problem comes when people abuse this. They Twitter constantly. The worst are those who Twitter their status all the time (making tea, reading paper etc). According to one statistics site I saw, I Twitter roughly every 2 hours. Too much for a status update but about right for an ongoing conversation.

Status updates - unless they are funny - now seem irrelevant and boring. Status updates are dead for me. It's all about conversation now. I'm on Twitter here.

Social media cafe as flash mob

Mike Butcher — Tue, 08 Jan 2008 04:35:18 -0600

Last year fellow blogger and social media expert Lloyd Davis came up with an idea for something called a "social media cafe" where people working in social media (bloggers, marketing people, technologists etc) could get together in the same space and work. Sort of 'vertical co-working'. He's been looking for potential venues - I'm talking physical space here - in London. But this requires cash investment. However, it strikes me that a mashup of co-working and a flash mob might work better - or at least be a way of starting the idea without investment. What you need is a cluster of about two or three cafes within walking distance of each other, all offering free WiFi. Then simply flash-mob (all turn up at the same time) those places on one particular day, with people who are signed-up to the project. At lunchtime, try to gather in one of them to meet your fellow "workers". Then do whatever you need to do that day from your allotted cafe. Crazy?

It's been a while

Mike Butcher — Fri, 04 Jan 2008 09:51:26 -0600

I hate blog posts saying sorry for not updating here for a while, but.... sorry for not updating here for a while. I have been busy trying to crank up TechCrunch UK since the re-launch and doing some glamourous-sounding (but hard-working I might add) trips to events abroad, including Web 2 Expo Berlin and Les Web 3 in Paris. And on that note, the fruits of my efforts appear to be paying off. TechCrunch UK is now among the top 20 blogs in Europe:

And I was also recently granted an interview with the [geek world] famous Robert Scoble, reproduced below.

The New New Newspaper

Mike Butcher — Thu, 01 Nov 2007 19:36:59 -0500

As I was reading the free daily Metro on a train the other day I was daydreaming about a different kind of newspaper but similar in form to the Metro. Instead of giving me a brief run-down of the news which lasted 20 mins, my "New Metro" would have similar stories, but also print lots of URLs so I could go and find out more information. And I don't mean URLs which pointed to the paper's web site. I mean real links to both the paper online and other reading. The Guardian's printed Technology Section is already doing this a lot (using TinyURL.com)and it really helps the experience.

But what my idea about a New Metro also suggested to me was that this, ultimately, would be a newspaper in reverse. Instead of printing stories on paper and having further material to view online, my New Metro would actually be the online product slowed down and freeze-framed for print. Because the chances are I would have seen a few of the stories online already - but I'd still consume plenty more in print because it's a different medium. I can see a time when a device like the iPhone will just replace most of my currently printed reading, but a 'freeze-framed' print version could still offer me more in terms of quick scanning and... well, just a different, more tactile experience. It would probably be a smaller paper and different in terms of story selection, but there would be no reason for print to die out. It would just adapt. (In fact in the early 1990s I wrote about a Guardian project to have an A4 newspaper printed by your home printer, along these lines).

I was reminded of this daydream today as I caught up on the battle currently raging between the Guardian's Roy Greenslade and the National Union of Journalists (I came to it via MessyMedia). Greenslade argues here and here that the NUJ now stands in the way of journalists taking up their digital tools and running with them. He says the survival of an organised media and journalistic business depends on the Union coming to terms with the fact that newspapers must now invest in online and get journalists to keep the web site updated every day including weekends - you name it. If they don't then other players who aren't tied down by lots of rules and regulations will just do it, and win the audience and the advertising.

It seems particularly appropriate to read and blog about this subject now since, in the last week or so I have felt like hell due a heavy cold, but still kept posting to TechCrunch UK, even breaking the odd exclusive and even (horror!) posting on the weekend and at night. If it was that sort of blog I might have uploaded photos and video too. I even went to Barcelona and back this week, using WiFi at the airports and hotel to keep the blog going. I know that is a no-brainer for the average blogger but it's a world away from the average journalist, who has to wait to submit copy when other people are in the office to edit it.

Maybe I'm odd. Maybe I do it because I am passionate about the subject. Maybe also I could take advantage of the flexibility of a blog to post, especially this last two weeks, when I felt physically up to it, not when I was 'in the office'. To me, 'the office' is when I am online, so the office is the nearest WiFi, regardless of where I am physically. But I am still, at heart, a journalist/blogger/storyteller/whatever who gets a kick out of the scent of a good story. So in that respect the same rules would apply to a journo on a local paper who felt like cracking out a story in the middle of the night rather than waiting for 'the office' to open in the morning.

House style killing US newspapers?

Mike Butcher — Thu, 11 Oct 2007 03:34:46 -0500

When I wrote for a US-owned magazine (The Industry Standard), the house style on almost any story, for example about a company closing, was like this: "John Smith looked at his watch. As the seconds slowly passed, he knew it was time to step up to the plate and tell the board what was going to happen in the next six months. But something stopped him... yada yada."

This was totally different to the British style which was basically: "CEO John Smith today told employees they would be out of a job inside 6 months." Now I notice a great letter to The Washington Post, which basically suggests that in the age of the Internet, mobile phones and a plethora of digital media we now no longer have time to sit down and read what in journalism we call a 'drop intro'. To quote:

"Newspaper circulation in the United States has been sliding for about 20 years. I have an idea that might help these papers get back on track. If the average paper has about 200 stories and the average reader has about 20 minutes to read it, he can spend only about six seconds on each story. But stories are often written in the meandering style of William Faulkner. If the headline reads, "Bridge Set to Close Down for Repairs" the story might begin with: "Bob Wilson gazed down at his empty coffee cup and listened to the patter of rain falling gently against his window pane." Then, after reading about two paragraphs of fluff like this, the reader is told to "See BRIDGE, C21, Col. 1" to learn when the bridge will be closed. We clearly need a newspaper digest that will get to the point more quickly. I'm sure that it would be a huge hit for any publisher smart enough to offer it."

There's no doubt that blogs now offer that fast filter, which is perhaps why they took off so well in the US - where readers became tired of the Faulkner style, and have not been so dramatically big in the UK, where.... ahem... the media tends to get to the point a lot faster. As in the The Sun's "Gotcha".... I rest my case...

Digital design event

Mike Butcher — Thu, 13 Sep 2007 05:14:29 -0500

If you are interested in current digital technology and creativity developments, or have something to contribute about the importance of good design principles in interactive media, then check out iDesign: design for life on September 18th, at London's Southbank Centre, Purcell Room as part of this year's London Design Festival. There'll be an exhibition and debates to examine the impact of digital interactive media on all of our daily lives, and how our collective digital future will pan out. Tickets can be bought here.

Standard coming back?

Mike Butcher — Mon, 10 Sep 2007 04:39:38 -0500

The Industry Standard, my former magazine, appears to be considering re-launching. Its six years since the death of the “newsmagazine of the Internet Economy”, but at least it left a good looking corpse. Many people still respect the kind of in-depth investigate coverage it brought to the Internet industry.

Quite why owners IDG are considering bringing it back is beyond me. Time-Warner pulled the plug on Business 2.0, a similar title, only last week.

A web-only format is more likely than a print magazine. And since blogs are now 'the thing', it would be odd not to incorporate those., We'll see....

New-ish pastures

Mike Butcher — Sun, 09 Sep 2007 08:15:42 -0500

You may have picked this up elsewhere, but here's a brief announcement for mbites readers. I am the new Editor of TechCrunch UK & Ireland. Some may know that I helped launch the site for the first time late last year. I also resigned after what I perceived at the time to be unnecessary editorial interference from the US site in a UK editorial issue. It's hard to explain it all now, but all I can say is, hell, you had to be there...

However, after a long "time out" I am back again and happy to say that TechCrunch has decided to show its firm commitment to this market and to editorial independence. For my part, it’s great to be editing the site and I want people to be re-assured that TechCrunch UK & Ireland is here to stay.

The other sites I have been working on recently - including mbites.com - remain personal projects, but I will do all my 'news breaking' and heavy blogging about the Web 2.0, tech and startups business on TechCrunchUKI. I'll also be contributing to TechCrunch US.

To contact me:

Email: mike [at] mbites dot com
Mobile: +44 77 2029 1095
Skype: mikegbutcher
More info on me: http://mbites.com/contact

My talk at PSFK London

Mike Butcher — Sun, 09 Sep 2007 06:02:20 -0500

Last May, at the PSFK Conference London 2007 I gave a talk on how media owners are on a race for survival against technology companies that put the power to publish in the hands of the ‘audience.’ Here it is, including my embarrassing stall half way through where I need to go get some water:

Click To Play

PSFK are running some much better speakers than I at the PSFK Conference Los Angeles on September 18 2007 in West Hollywood - www.psfk.com/psfk-conference-los-angeles so check it out if you can.

This week I am mostly at...

Mike Butcher — Thu, 06 Sep 2007 09:09:23 -0500

I HATE blog posts that apologise for the lack of updates. Like, who cares?! Either blog or don't blog. Just don't apologise. However, I do find that these days I update my Twitter microblog more than this blog! And I have been working on other stuff other than blogging lately. And thinking. However, I will be writing about the Brunch Bites event last week soon. This week I have been working with Seedcamp to help young Web 2.0 and Mobile 2.0 startups get off the ground and doing a lot of writing to profile the startups involved. It's been a fascinating experience. I'll publish more info later...

At TV Unfestival

Mike Butcher — Sat, 25 Aug 2007 04:06:15 -0500

I’m in Edinburgh today for the TV Unfestival, an unconference about TV, as an adjunct to the Media Guardian TV Festival.

iPhone hacked

Mike Butcher — Fri, 24 Aug 2007 13:29:40 -0500

Now for all networks it seems...

Will closed social networking kill off User Generated Content?

Mike Butcher — Wed, 08 Aug 2007 15:46:07 -0500

I just need to blog this while it's still in my head. I'm sure others have come to the same conclusion in a more erudite manner, and posted longer pieces. But I'm starting to wonder if the "User Generated Content" revolution, which was supposed to be taking over the world somewhere around about now, may not hit the heights it was predicted to. Why? Because social networking could well take over from where content creation left off. Ok, that is a massive generalisation. Of course that won't happen for all demographics all of the time. But think about it. Even the biggest bloggers of the last 2 years - Robert Scoble, Loic Le Meur etc - are now producing almost as much content and getting possibly more interaction inside social networks than they did out on the wild-web or blogosphere. Of course, I'm referring in large part to the enormous pull of Facebook right now. But I'm also thinking that it's specifically proprietary social networks, such as Facebook or Twitter, which are not open platforms in the way blogs were, that will have this effect. We all have a limited amount of time. If the former Live Journal member or Blogspot Blogger switches to Facebook, then they are going to spend a lot of the time which they used to create content now socially networking (writing on walls, checking mini-feeds, staling people's statuses etc). I'll try and add more to this later...

UPDATE: I added more in my comment below.

Eight reasons why Facebook owns your ass

Mike Butcher — Thu, 02 Aug 2007 05:58:32 -0500

Thanks to the "Facebook Isn’t Private, and 7 Other Things You Should Know" post I have taken the main points about its Terms and Conditions and summarised below. It makes for gritty reading.

1. The terms can change at any time of Facebook's choosing.

2. Facebook is legally for personal use only (only actual people can create profiles. And you’re not supposed to profit from it. A profile for a business technically would be banned/deleted).

3. A single, individual user account (you can’t - under their T&Cs - have two accounts on Facebook)

4. You’re giving up a HUGE license (posting content gives Facebook a license to do whatever they want with your content).

5. Applications are NOT guaranteed safe (In other words, “installer beware.” A malicious application developer could break through Facebook’s security protocols and expose your info. That would probably be difficult to do, but Facebook wouldn’t have to take the blame).

6. Disputes are arbitrated under Delaware law in the US (If Facebook does something horridly wrong and you want to sue you can't because you’ve already agreed to “final and binding arbitration”)

7. You surrender "all submissions" (If you give them a good idea for Facebook it becomes their property)

8. Privacy is NOT guaranteed: "[W]e cannot and do not guarantee that User Content you post on the Site will not be viewed by unauthorized persons. We are not responsible for circumvention of any privacy settings or security measures contained on the Site... ...Please keep in mind that if you disclose personal information in your profile or when posting comments, messages, photos, videos, Marketplace listings or other items , this information may become publicly available."

If somebody hacks Facebook, steals all your content and contact info you have no remedy against Facebook.

Dvorak just doesn't get it

Mike Butcher — Thu, 02 Aug 2007 04:50:14 -0500

John Dvorak is an old-fashioned tech jounralist in the US who thinks we're going to have another dotcom bust:

"Every single person working in the media today who experienced the dot-com bubble in 1999 to 2000 believes that we are going through the exact same process and can expect the exact same results—a bust...Today everything from YouTube to the local church has a social-networking angle. And this doesn't even consider the actual social-networking sites, from MySpace to LinkedIn to Facebook to even Second Life. This scene is totally out of control and will contribute to the collapse for sure."

Marshal Kirkpatrick is a startup guy and a former TechCrunch writer who nails this rubbish to the wall:

"I say: Social networking is an emerging utility that combines the functionality of blogging's self publishing with the usefulness of email list serves. Social networking services make these activities more accessible than ever before... Why on earth is this man considered a leading voice on tech? I'm guessing that it's because he speaks to the potent paranoia of much of the aging population - afraid in the face of a changing, confusing world that they will face humiliation if they bet on new tech, that they will be unemployed if things take a downturn or that they will lose their self-righteous know-it-all credentials if this new economy does succeed."

Live blog- Hammersley talk on BBC's social media experiment -

Mike Butcher — Wed, 01 Aug 2007 13:30:00 -0500

Live blog of Ben Hammersley talk at Frontline Club. - excuse typos/errors....

QUESTION (supplied by Graham Holliday and delivered by me)

You had 91 twitter folowers, but you 'follow' just 2

Yu posted 44 pictures on flickr, but got few comments

You had 110 subs on YouTube , 6,000 views, few comments, but replied twice

The blog did not allow comments at all.

Only 20 Facebook 'friends'

Beyond any comments you may have made on blogs, as far as I can tell, you "interacted" exactly seven times - one comment on YouTube and six replies - including one to Richard Sambrook and another to The Guardian's Neil McIntosh - on Twitter.

With this in mind - and the fact that you and the BBC called this a social media experiment - how social was it really?

Ben's Answer (paraphrased):

The story was not 'pushed' by the BBC.

Not that many people are interested in Turkish politics.

These were not successful traffic/ interaction figures, yes.

But the real point was that from the bbc.co.uk/turkishjourney page, 80% of the content there was built were built with social media tools / public tools

All were consumer social media tools.

In essense it was an internal facing project.

The vast majority of the content was not run off BBC software.

The key thing is - there is a huge driving force from the IT dept to do only stuff built 'in house'

But this is done specifically on tools which were free, simple and available now.

So the question was can we get this thing into the BBC site under the radar?

Asnwer - yes - that was a huge success.

Yes, we screwed up a lot - it wouldn't have been an experiment otherwise.

We did the behind the scenes videos in black and white on YouTube to separate them from BBC editorial.

[Q: What about lack of comments on the blog?]

Very little added value would have come from comments . Mark Mardel's blog has been great but "every single comment thread has gone to shit."

[later]

British Libel law prevented us from allowing coomments. And it was on MY BLOG and I didn't want to get sued.