Cyberspace in Court: Around the World

Studying the judicial system in the United Kingdom feels like an interesting distortion of the United States’. Many tenants of common law are of course the same, including the right for a trial to settle disputes between two parties. However, some core values are fundamentally different. For instance, the United States operates under the presupposition that the defendant is innocent until proven guilty, whereas in the United Kingdom, the burden lies on the defendant to prove his or her innocence.[1] This policy leads to interesting ramifications as the UK struggles to sort out new issues brought up by the increasingly important role of the Internet.

One area where UK law is famously tangled is libel. Based on the Defamation Act of 1996, defendants can be prosecuted for libel if they make false accusations in print that demonstrably damage the plaintiff’s professional or personal reputation.[2] As in the US, the plaintiff wins the case if they can prove that the accusations were made out of malice and that the accusations did lasting harm to their reputations. However, UK law also stipulates that the defendant must prove that the accusations are not libelous. This accounts in part for the wild popularity of tabloids in the UK, which often run unchecked with stories that are completely untrue. (Though the celebrities could perhaps easily win lawsuits over the stories, they are wary of the Streisand effect[3], where lawsuits actually propagate information or claims they’d rather keep under wraps).

One of the most significant recent examples of the strength of libel laws in the UK is the case of Simon Singh. Singh, a former columnist for The Guardian, published an article in April 2008, claiming that the British Chiropractor Association (BCA) “happily promotes bogus treatments”. The BCA immediately sued him for libel, and months of debate over the implications of the word “bogus” ensued. In a preliminary hearing, the judge ruled that his statements should be treated as assertions instead of opinions. Though Singh managed to get that ruling overturned in an appeal, which ruled that his statements were fair comment, he had to quit his job at the Guardian to focus on the court case.[4] Sense About Science, a British organization, argues that the initial rulings had a “chilling effect” on the future of science. Science as a field is based on experimentation and evidence, and if a scientist is unable to question another’s findings, the legitimacy that science is established upon immediately becomes threatened.[5]  It’s a pressing concern – if reasoned critiques of alternative therapies and fad medications can be found libelous, where can the public turn for balanced information? This concern extends far beyond the realm of science, however: the UK’s stance on libel means that any commentators who wish to review anything negatively feel jeopardized.

These concerns are well founded: the UK is known as a haven for libel cases, where 90% of cases are won by the claimants.[6] Even in the minority where the claimant does not win, like Singh’s, the costs and effort associated with mounting an adequate defense are enough to make any citizen wary of approaching the boundary into libel. It’s not just citizens of the UK who need to be concerned, however. The law stipulates that even people writing outside the UK are subject to be tried for libel, as long as their work is published within the UK. In an effort to fight this “libel tourism”, President Obama signed the SPEECH Act in 2010, which overturns libel judgments made overseas on Americans if the judgments are made in violation of the 1^st amendment.[7] This move protects Americans against the UK’s overly stringent libel laws, and its popularity has served as a linchpin in UK citizens’ efforts to reform libel law.

Though the Singh case centered on a column in the newspaper, defamation law easily extends to the Internet as well. The UK operates aggressively: websites with potentially defamatory material are immediately sent a notice and taken down. The website owners must then prove the absence of defamatory material before the website can be restored. This is especially troublesome for websites with moderated comments, because a comment with libelous content can cause the entire site to be taken down. [8] Critics describe this policy as “chilling”, echoing concerns about Singh’s case, and “chilling” is an apt descriptor for what the effect this policy has on online discussions, especially websites where users post anonymously. Anonymity has a legitimate place in online discussions: for instance, if you are a parent having trouble disciplining your child, you may want to ask for help anonymously without having it associated with your real-life persona. However, allowing users to comment anonymously puts website owners in danger of being sued for libel, entering into the time-consuming, costly process that forced Singh to quit his full-time job. These concerns led to a committee in Parliament meeting in mid-October 2011 to discuss a draft bill reforming UK defamation law. [9] The bill points out, correctly, that the Internet moves far faster than the analog world, and because of this, a website should only be taken down if it contains libelous information that causes “significant harm”, a far more stringent criterion than the current one. [10] However, the draft bill also suggests that the new leniency comes in part because anonymous comments cannot be immediately deemed trustworthy, which leads to questions regarding the accountability of people’s actions on the Internet. Just like every other country in the world, the UK is still struggling to sort through this, and has yet to decide on the balance between real-life and online identity.

A final, interesting note about law in the UK is its relationship to the EU. Though the UK’s legal system serves as the foundation for many of its former colonies’ legal systems, such as in the US, it is still subject to change because of the UK’s new relationship with the European Union. An example of the EU’s far-extending effects is the Human Rights Act of 1998. The EU Convention of Human Rights ruled that privacy is a human right. Parliament passed the Human Rights Act, but only specified that it applied to public bodies. However, thanks to horizontal effect, the EU reading of the law is often cited in court cases, and the UK is moving closer to this reading as well. [11]