Friday, 2 September 2011

Legal threats against carer-support forum shows need for #libelreform and dangers of outsourcing public services

Index on Censorship reports that an internet forum for providers of care has been forced to shut down following a threat of legal action from a healthcare company. Although it now appears that the dispute has been resolved, this episode clearly demonstrates the need for wide-ranging reforms to English and Welsh libel law, as well as some of the dangers inherent to outsourcing and/or privatisation of public services.

The forum in question, CarerWatch, was suspended by its hosting company after they - the hosting company that is, not the owners of the forum - were sent a letter threatening legal action relating to an allegedly defamatory posting. The letter was sent on behalf of Atos Healthcare, a private company that is contracted to the Government's Department of Work and Pensions (DWP) to carry out work capability assessments. This is the latest in a series of similar incidents, where supposedly defamed individuals and corporations sue, or threaten to sue, internet hosting companies for libel. Rather than simply asking the author of the offending post to retract the content that is objected to, libel-happy lawyers target website hosts by threatening to hold them responsible for the content on their servers. Facing potentially ruinous costs of defending their clients, hosts feel they have little choice but to suspend the blog, forum or site under attack - thereby extending the chill cast over free expression by bullying legal threats of this nature.

As it happens, on this occasion, the company concerned did contact the forum owners with details of the offending post, albeit after the threat of legal action had forced the closure of the site. The forum owners then consented to removing the post in question, even though it wasn't defamatory in itself but rather linked to an external website that was deemed libellous. The forum has now been reinstated. So if a simple email exchange was sufficient for the allegedly defamatory content to be removed, why did Atos, a multi-billion corporation with a £100 million contract with the UK Government, resort to sending legal threats? I'd suggest that it's because of the ease with which such threats can chill free debate - knowing the pro-plaintiff bias in English libel law, and the extortionate cost that comes with even successfully defending a libel case, recipients of such threats nearly always back down and shut up rather than risk being ruined.

The Atos threat illustrates the need for many of the vital reforms that the libel reform campaign has sought for nearly two years now. Firstly, at a time when internet hosts give a home to billions of comments and opinions, it is vital that the law regarding their liability is updated. It's unsustainable for the likes of CarerWatch's hosts, or any other Internet Service Providers, to be held responsible for the ocean of content they host. The Government acknowledged that ISPs' legal status in libel law needed looking at, but short of including a clause addressing the problem in their draft Defamation Bill, they chose to kick the issue into the long grass via a consultation; as we await the Government's response to the consultation, it's vital we keep up the pressure to amend the law with respect to ISPs and bring defamation law into the 21st century.

In addition, those seeking redress should be required to approach the authors of the allegedly offending material directly and have the matter resolved without recourse to heavy-handed threats of legal action. It's been proposed that for a libel action to proceed plaintiffs should prove that all reasonable steps had been taken to resolve the matter, including asking for the allegedly defamatory material to be removed by the authors. Had this requirement been in place, CarerWatch's hosts could have safely ignored the threat knowing that this hadn't occurred.

Finally, the fact that a multi-billion pound corporation was able to issue such a threat to a small voluntary organisation at all is a great concern, not least as the company in question provides a public service for which it ought to be held accountable. Activists within the libel reform coalition have called for the law to be changed, such that non-natural persons are no longer able to sue for libel. This stems from the fact that  Articles 8 and 10 of the European Convention on Human Rights, relating to privacy and free expression, should only apply to actual individuals and not to corporations who in other respects are regarded as persons under the ECHR. A technical legal argument it may be, but it's crucial here. Libel is intended as a form of redress for those whose reputation has been damaged - the libel reform movement's contention is that corporate bodies don't enjoy a reputation in the same way as natural persons do, and hence should be prevented from suing in libel. Should their financial position be damaged they could always sue for malicious falsehood, but libel should be out-of-bounds for corporations.

Here is where we see a real danger in the outsourcing of previously public functions to private entities.

Public bodies cannot sue for libel following a ruling in Derbyshire County Council vs The Times in 1993. The reasoning behind this ruling was that public bodies carrying out public functions should remain accountable at all levels and should not be able to wield libel law as a tool to silence criticism. A grey area opens up, however, when private companies are contracted to carry out governmental functions. Not only is criticism of said function now subject to silencing through the libel system, the remit of the Freedom of Information Act 2000 also suggests that these companies are immune from FoI requests as to their actions. As I reported in January this year, Deputy Prime Minister Nick Clegg acknowledges that if more and more public functions are carried out by private companies, we may need to extend the FoI Act to ensure that these companies can be held to account.

Until and unless both the libel laws and FoI legislation of this country are radically reformed, we will continue to see unaccountable private corporations effectively silencing free debate; an overhaul of both is crucial if we are to prevent further episodes like Atos vs CarerWatch and countless other instances where free expression is suppressed.

1 comment:

Muhammad Amir said...

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