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    Friday, 11 December 2009

    Single publication rule - or defence of 'non-culpable republication'?

    A Ministry of Justice consultation on defamation and the internet asks whether a single publication rule (SPR) should be introduced for online publications; whether, for this context at least, we should foreswear the Duke of Brunswick rule. Such a rule would set a limitation period running from the point of first publication (uploading), rather than from the date of each 'republication' (downloading) of a web page. The consultation paper offers three putatve reforms: straight shift to an SPR; shift to SPR with an extended limitation period (currently, 1 year); or an extension of the statutory version of the qualified privilege defence.

    In responding to this consultation, we - Charlie Beckett of Polis, and Andrew Murray and Andrew Scott of the Department of Law at LSE - reject a move towards a single publication rule.

    For sure we recognise the problems created for online archivist-publishers by the current multiple publication rule, as exemplified in the experiences of Times Newspapers before the domestic and international courts. However, we would be loathe to see the increased potential for injustice on the part of persons defamed that would be an unavoidable corollary of such a reform. Any reform would have to recognise that not all those who maintain online archives are as deserving of protection as Times Newspapers or other public-spirited media businesses, and that even angels sometimes sup with the devil.

    Instead, we propose a new defence of 'non-culpable republication' (the epithet has already been described as "the most graceless phrase to be associated with the internet since user generated content", which we concede!).

    Here is a flavour of our proposal. The defence would be available to an archivist-publisher after the elapse of one year from the point of initial publication. To avail of it, the publisher would be required to append a notice to the online article, indicating that a challenge to the accuracy of the piece had been made under the new defence.

    The integrity of the archive as a representation of the historical record would be maintained, while any future reader would be left in no doubt that further investigation would be necessary before any imputation could properly be drawn from the article. The force of the alleged libel would therefore be mitigated. Moreover, the inclusion in the notice of a summary of the specific complaints brought - which we recommend - would often add to the discursive value of the original piece. It would remain open to the publisher to withdraw/amend the original piece if they took the view that there was indeed an inaccuracy that should be corrected. At the same time, the publisher would be free to choose not to append the notice, and thereby to assert the accuracy of the original piece. This would allow the publisher to deter attemtps to use the defence willy-nilly, but in such a case they would remain open to suit.

    Bearing in mind the importance as we see it of the law supporting the emergence and practice of networked journalism, we also recommend that a variant of the new defence should be available to the author of online statements who loses control of same after uploading (eg where others tranpose statements made, without subsequently chedcking whether corrections/retractions have been issued).

    Copies of the full response (circa 14 pages), are available here.

    Thursday, 10 December 2009

    'You can be open or you can have government': Straw issues second FOIA veto

    It has been announced that Jack Straw as Justice Secretary has issued a second veto certificate under section 53 of the Freedom of Information Act 2000. Such a certificate entails that a public authority need not comply with an order of the Information Commissioner requiring disclosure of information under the Act.

    In this instance, an application had been made for the release of minutes of meetings of a Cabinet committee on devolution from 1997. The Cabinet Office confirmed that it held the information sought, but refused to disclose it under the section 35 exemption. That provision allows the withholding of information relating to, inter alia, the formulation or development of government policy. The Information Commissioner's Office concluded in June that the public interest in maintaining the exemption did not outweigh the public interest in disclosure, and so ordered the release of the minutes.

    The Information Commissioner, Christopher Graham, has issued a statement in response to today's veto of this decision. In that, he indicates a concern that "the government may routinely use the veto whenever he orders the disclosure of the minutes of Cabinet proceedings, irrespective of the subject matter or the age of the information".

    For his part, Jack Straw asserted that the decision had not been taken lightly (for the full decsions, see here). This was (somehow) an exceptional case where release of the information sought may impinge upon the convention of ministerial responsibility, and hence impact upon the effective operation of Cabinet government. It is difficult to put out of mind the finding of Lord Chief Justice Widgery (hardly a thorn in the side of the Establishment!!) as long ago as 1975 (hardly an era of unrestrained open government!!) that the narration of events that had taken place in Cabinet ten years previously could hardly by that time be said to risk undermining the duty of confidence owed by ministers to the Cabinet (Attorney General v Jonathan Cape [1976] QB 752 - the Crossman Diaries case). Straw does seek to address this issue, but he is not persuasive. He also seems to suggest that because there is plenty of information equivalent to that held in the minutes already in the public domain, this stands against the further disclosure now. This is a novel, counterintuitive and - if sustained - worrying development.

    The only other such veto was issued earlier this year in the case of Lamb (1,2,3,4). In that instance, the veto power was exercised following a ruling of the Information Tribunal that confirmed the view of the Commissioner. On this occasion, Straw has acted in advance even of the pending hearing due before the Tribunal in January 2010. It is an insidious power. In general, its use emphasises the ultimate subordination of the freedom of information regime to political imperatives. On this occasion, it also highlights a seeming indifference to due process. It controls the executive arm of government (in some measure), but manifestly not the Executive.

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