Could US libel work in the UK?

US libel laws seem to work fine alongside robust free speech protection. Why can't we have their laws in the UK?


Free speech is valued more highly in the US than it is in the UK. There is no getting away from it. In the UK, people's right to privacy, their right to a fair trial and their ability to protect their reputation frequently outrank others' right to free speech. In the US, free speech trumps all.

The increasing use of the English libel laws to stifle free speech has triggered a robust campaign for their reform. If you don't live in England, don't worry: our judges can still get you. If what you write is downloaded in England from a website anywhere in the world, the High Court in London will hear a case against you (I focus on England because judges in Edinburgh are no so keen on libel tourism).

Recently, I was asked to explain to some US journalists how the English libel laws might apply to them. Mostly, they were unprepared for the shock. It got me thinking.

In 49 out of 50 States they use the English common law system and, at heart, US libel laws are the same as those in England. The differences are in interpretation. But thanks to the US Constitution's first amendment guarantee of free speech, those differences are stark.

US journalists were mostly unprepared for 
the shock of the English libel law

Here is what I thought. The US has a modern, free-thinking libel regime, but it works within English common law. Can't we just adopt their libel laws in the UK? They seem to work fine in the US.

[Note: I am not so keen on how the first amendment interacts with people's right to a fair trail, nor am I keen on US citizens' second amendment right to bear arms. In the UK, one is far more likely to be sued for libel; in the US, one is more likely to be shot.]

Here are some of the ways in which US and UK libel law differ:


Strict liability

Most law in the US and UK operates under the strict liability rule. Ignorance is no defence. If you run a red light, it does not help your case to argue that you did not see the light, nor that you did not know a red light meant stop.

In the US, strict liability is lifted for libel in the interests of free speech. This means you can argue, for example, that you did not know, or could not foresee that what you wrote might cause problems for someone. Good intentions matter.

In the UK, strict liability still operates. This means your intentions don't matter. You are judged on how other people interpret your writing. It means you can be sued over a typo, or an inferred meaning that did not occur to you when wrote the piece.


o  In the UK, you are judged on the worst-case interpretation of your writing that someone else can reasonably make.
o  In the US, you are judged on what you intended to say.

Burden of proof

In both jurisdictions, truth is an absolute defence. The difference is in who has the burden of proof. In the UK, the writer is assumed to have got things wrong. If they want to use the defence, they will have to prove the truth of what they wrote.

In the US, the plaintiff (the person suing you) has to prove that what you wrote was false. In fact, US courts make a distinction between those who seek publicity (celebrities and big companies, for instance) and those who don't. If you are sued by someone in the first group, not only do they have to prove that you got it wrong, they have to prove that you knew it was wrong when you wrote it, or that you behaved with a reckless disregard for the truth.

o  In the UK, you have to prove truth.
o  In the US, they have to prove falsity and may have to prove you knew it was false.

Harm

o  In the UK, there is no requirement for the person suing you to show they have suffered as a result of what you wrote.
o  In the US, there is.

Pay walls: it's about the ads

Pay walls on magazine and newspaper websites are not about replacing advertising revenue. They are about winning it back.

True or false?:

Journalism is in crisis	True . False
The publishing industry needs a new business model	True . False
Pay walls are a stupid idea	True . False

There has been a lot of talk on these three subjects and on the last there has been a pretty broad consensus:  pay walls are a really stupid idea. Except, that is, for the people who actually own newspapers. Some of those guys think pay walls are worth a go (the latest, this week, being the New York Times). So what do they know that we don't?

The New York Times announced this week
that it would charge for some web content

The argument against pay walls goes something like this: the web is full of free information. If you charge, people will simply go elsewhere. The slump in audience numbers that results makes it hard to generate revenue from (among other things) advertising.

But I am beginning to think the argument is flawed, particularly when you consider the advertising.

The crisis in journalism is really a crisis of money. Advertising has somehow disappeared making it difficult to fund good quality journalism. Where has the advertising gone?

• Well, we are in the worst recession for a gazillion* years and advertising always dips during recession. But the recession will end.
  
• There are lots of new media for advertisers to try, so they are trying it all out. They'll be back when they realise how much of it was just fooling around.
  
• A lot of advertising never worked in the first place. The advertisers only noticed this when the new forms of media allowed them to measure better. Those guys are gone for now, but when they work out how to do it better, they'll be back.

So taking these factors into account, my new business model for the publishing industry is...

selling ads

I know. It sounds stupid. But I think that is what the pay wall publishers are counting on.

Imagine you are an advertiser in ten years time. All this new stuff that kept popping up when the web was new has died down. The media is stable, if different. So where do you spend your ad budget? Do you spread it evenly over the (by that time) gazillion* web pages? Of course not. You pick the places you think will most effectively reach the audience you want to reach.

And when some Uber-blogger comes to you telling you about numbers of unique users and bounce rates, you will know that they cannot tell you the difference between a committed reader and a cat snoozing on a keyboard. In that scenario, I think the following sales pitch will go down quite well:

Our stuff is so much better than anyone else's that our readers actually pay to receive it.

So pay walls are not really about making more money out of readers. They are about winning back the hearts of advertisers. There will be a short term loss of revenue, but long term it may turn out to be sound business strategy.

* That's a British gazillion as defined by the Royal Institute of Making Stuff Up.

Blogazine follow up

In the previous post, I talked about using embedded CSS to create more visually interesting blog posts. I have since discovered a further disadvantage. The CSS code ends up in your RSS feed and may cause unpredictable results for anyone using the feed.

My flavors.me page uses an RSS feed from this blog. The previous post is displayed with the CSS as a nasty chunk of text at the top of the post.

Magazine design comes to the web

B logazines are the latest craze in online publishing. They are blogs that take design cues from the funkier print magazines.

The best examples come from user interface (UI) designers who are demonstrating that the web doesn't have to come in neat boxes and screeds of text. Some of these are stunning -- they really get one thinking about the possibilities of the web.

But here's why you don't want anything to do with blogazines:

Consistency

There are all sorts of other reasons to avoid them, including the huge amount of time in css coding each post will take, but consistency is the biggy.

The designer of a print magazine has more latitude to bend the rules. No matter how bizarre the layout of an individual article, the reader always knows roughly where they are in the universe: somewhere between the covers of the magazine they just picked up.

On the web, all it takes is a single click to find yourself in Horse and Hound or the National Geographic Readers are less confident about where they are in the virtual world. The fact that one of your web pages looks a lot like another is actually very reassuring. It tells the reader they are still somewhere within your site.

I have been impressed with the work of Dustin Curtis But the reaction of everyone I have shown his site to (so far) has been:

What?

Great when I explain what it is about; not so good as a functional website.

But Dustin and other UI designers show us that blogs don't have to be boring. The limiting factor is not imagination. Most blog designs are boring because they are easy. The UI guys are creating a custom style sheet for each blog post (or generating reams of inline styles) and that is hard work.

What print magazine designers do is create a grid that is flexible. Most don't, in practice, create an entirely new design for each article (for the same reasons: consistency and time). But the underlying structure of the page layout makes it easier for them to create stunning visuals while maintaining a familiarity from one spread to the next.

The web offers similar possibilities. Design is based on cascading style sheets (css). You can have a single css file for your whole site or you can create one for each page. But there is another option with potential.

You browser doesn't care if you put your design into one css file or split it between several. Cleverly created, you could have a site-wide design that kept key elements fixed and consistent but allowed flexibility in other elements. You could then have simpler css files for each page to generate the variety you need to keep your site interesting.

It is going to taking some working out, but this blogazine idea has really got me

thinking

Note:
Time to write post: 12 minutes.
Time to code css: 4 hours 20 (I may be exaggerating)

Journalism and commerce

The crisis in journalism is really a crisis in advertising. The depth of recession has had a calamitous effect on publishers' revenues and that puts pressure on the creative side of the business.

There has always been a symbiotic relationship between journalism and advertising. Good journalism creates a good place to advertise. Commercially successful publications tend to breed good journalism.

But companies shouldn't just consider advertising as a way of preserving a marketing environment. Advertising during a recession works.

This from Direct Marketing magazine 1991:

[The American Business Press (ABP) analysed] the severe 1974 to 1975 recession. Relying on questionnaires submitted by advertisers, the study tracked the sales and profits growth of 173 industrial companies between 1972 and 1977. The companies were divided into two groups: those that reduced advertising during the recession; and those that did not reduce advertising.

The study found that the companies that reduced advertising achieved minimal sales growth in 1974, suffered a sales decline in 1975 and increased sales by 70 percent during the five-year period. For companies that maintained their ad budgets, sales suffered no slowdown during the recession and grew 150 percent for the entire period. Profits showed a similar pattern. Most notably, the momentum gained by the steady advertisers during the recession helped them to grow at a faster rate in 1976 and 1977.

The original article can be found at Allbusiness.com.

How should a journalist look?

Picture bylines are a trick to make journalism more human. If you know what the writer looks like, the theory goes, you are more likely to relate the the writing. I prefer the reader to be thinking about the subject rather than the writer's dress sense, but that's me: I am old-fashioned.

The question arises, what should journalists look like. Should they be themselves (or does that risk alienating the audience)? Should they reflect the public's prejudice about what a journalist should look like (press card in the trilby)? Or should they look like they know their subject?

The Telegraph seems to have a jacket and tie policy, but Political Editor Andrew Porter goes one step further and actually looks like a politician

Richard Edwards is the Telegraph's Crime Correspondent and looks a little like a policeman. Well done, Richard. Spot on.

The Guardian seems to have a more casual photo dress policy which allows Music Editor Tim Jonze  to look like the musos he's writing about.

Steve Busfield is Head of Hedia and Technology for the Guardian and . . .  erm . . .  Sorry Steve, that shirt is not really saying Head of Media and Technology

Pressure to reform libel

Reforming libel is urgent in the interests of free speech according to campaign groups English Pen and Index on Censorship. They have produced a report which recommends changes to the UK libel laws to make it easier to defend a libel action, and to reduce the costs.

These are their recommendations (with my commentary):

• Unreverse the burden of proof. It would be up to a claimant to prove a story is false. Currently truth is the main defence to libel but the defendant is required to prove the story is true.
• Cap damages at £10,000. Currently there is a £200,000 cap.
• Change the multiple publication rule: currently each repetition is a fresh cause for action. This includes each time a piece is downloaded by a web visitor. The report recommends a single publication rule.
• Only allow English courts to consider a libel action where at least 10% of a publication's circulation is in England. Currently only a few copies need to be sold in England for the courts to claim jurisdiction.
• Establish a libel tribunal as a cheaper alternative to a full trial. 
• Strengthen the public interest defence. Currently stories where truth cannot be proved rely on the Reynolds defence. This is only available for stories of the most serious public concern.
• Entitling people to their opinion in a broader range of circumstances. The current fair comment defence comes with a raft of conditions.
• Cap base costs in libel cases. Currently the loser usually pays most of the costs of both sides and the sum is unlimited. The McLibel case is estimated to have cost £10m.
• Create special exemptions for some parts of the internet such as chat.
• Currently limited companies and PLCs have the same rights as individuals to protect their reputation. The report recommends removing libel protection for medium and large companies.
 

Libel in the news

• Libel stains Britain's good name says the Index on Censorship 
• The Times reports that US publishers have threatened to stop publishing in the UK because of the risk of libel action
• Simon Singh, writing in the Guardian, says that UK libel law is out of kilter with the rest of the democratic world, encouraging 'libel tourism' and the erosion of free speech in other countries
• The Index on Censorship and English PEN hope their report will stiffen the resolve of the current parliamentary select committee on press standards, privacy and libel, said Ken Macdonald QC, former director of public prosecutions, quoted in journalism.co.uk
• The BBC quotes the Ministry of Justice saying it will "carefully consider" the suggestions