Singh libel win in Court of Appeal

Dr Simon Singh has succeeded in persuading the Court of Appeal that a defense of fair comment is applicable to his critical comments on chiropractic practice - ie they are not excluded as "fact" not "opinion".

The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

"I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."

That is a pass to which we ought not to come again."

Mum's The Word

Another late catch up from my hols, mainly for own benefit. Mumsnet, the non-profit site run part-time by single mothers to advise on parenting, has capitulated to Fearsome Lawyers without going to court. Pangloss is rather sad.

From OUT-LAW:

"Mumsnet was sued by Gina Ford, who is famous for espousing strictly regimented baby routines, over comments made in the site forums. The long-running case has been settled with a Mumsnet apology and a payment to Ford, but Mumsnet founder Justine Roberts has asked the DCA to reform the law.

"Though we don't accept that any of the comments made on Mumsnet were defamatory, we took the decision to settle at least in part because of the distinct lack of clarity about how the defamation law applies to web forums," [said Roberts]..

The main problem seems to have been uncertainty about what "expeditious" removal on notice means under the EC E-Commerce Regulations.

"Roberts explained her dilemma: "How expeditious is expeditiously?" she asked. "We settled because there were some comments left up there for longer than 24 hours – though not much longer than 24 hours."

This is madness. My own recent empirical (as yet unpublished) research has shown a wide variation in time taken to remove content among UK ISPs and websites , from about 24 hours to a week, depending on the type of content, the urgency of the request and who is doing the asking. Pangloss agrees that more guidance is vital, in code of practice if not in law.

In the US, the moderator of a mailing list or website forum is exculpated under s 230 (c) of the CDA in respect of the content of posters- see Batzel v Cremers. Although s 230(c) is often seen as over wide, this is a ruling we could emulate, especially where the moderator makes no commercial gain from the site; it could always be subject perhaps to a removal of immunity where there is egregious breach of care (eg the email posted is forwarded from someone else and says DO NOT DISTRIBUTE in large capital letters.) Moderators of "public advice" websites are more like archivists than publishers; they rarely if ever make money from adverts or subs and do a good public service.

(It is fun to look back at this case today and compare it to whether Live Journal should be held liable in respect of members posting fiction containing under age rape. ISP liability is a wonderful area.)