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Friday, 3 June 2011

The UK criminal "libel" law

Multiple sources are reporting that lawyers acting for Simon Cowell have made a complaint to the police of "malicious communications" for the already-infamous "insider" allegation that Britain's Got Talent is rigged.

Section 1 of the Malicious Communications Act 1988 states:
(1) Any person who sends to another person—

(a) a letter, electronic communication or article of any description which conveys—
<sub-clauses removed for clarity>

(iii) information which is false and known or believed to be false by the sender;

<sub-clause (b) removed for clarity>

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
I have mixed feelings about this.  The law should act as a backstop, and I'm not convinced it's an entirely appropriate use of police resources - especially in this case, where a multi-national entertainment empire should be more than capable of defending their own reputation against the internet equivalent of pub talk.

I don't want to speculate on the details of what appears to be an active investigation, but in a general sense the prosecution would need to prove an intention to cause "distress or anxiety".  Quite a subjective question, since one could argue that the very fact someone had knowingly made a false allegation could cause distress or anxiety in itself!

It's impossible to overlook an illiberal aspect to this law: that it applies to private communications as much as public statements; and as such, enforcement action may require an investigation into private communications (read: confiscation of computer equipment, resulting in significant loss of personal privacy to the state).

There's also another illiberal aspect, in that an element of thought crime is introduced with "known or believed to be false by the sender".  Strictly speaking, I could end up being convicted for publishing a truth that I believed to be false at the time of publication!

But, in a general sense, is it wrong to have a criminal penalty for the publication of knowingly-false allegations online? Provided, of course, there was significant protection for satire.

Such a law might act as a backstop to discourage anyone from malicious publication of lies, without having a significant impact on free speech, so long as the law does not try and extend to censorship on the grounds that the allegation is illegal and therefore must be removed.  This is a separate question that is quite nuanced once you start to explore the role of information in a democracy.

The short answer is (a) public visibility of the lie is important to provide transparency of justice and (b) most censorship mechanisms end up subverted for the protection of power, therefore the lesser evil is to: (i) leave the allegation standing; and, (ii) try the person responsible in open court, punishing if guilty; and, (iii) publicise the decision of the court.

I thought I'd be more outraged than I actually am about the use of the criminal justice system to punish a blogger.  But taking for example whistleblowers, who will have the absolute defence that they had reason to believe the facts published were true, as with all other scenarios I can imagine, I can't see too much of a problem in principle with such a law.

Unlike the UK's civil libel laws, the burden of proof is on the prosecution to prove the person sending (read: publishing) the message knew the allegations were false at the time of sending.  Also, unlike our outdated civil libel laws, this offence does not extend to all those who publish or repeat a "libel".  For those who re-publish to be prosecuted, the re-publisher would also have to know at the time of re-publication that the rumour was false, and have the intention of causing distress etc as per the originator.

Plus, unlike civil laws, criminal investigations are conducted by police - not at the expense of the claimant, meaning the law protects all sections of society, regardless of their ability to fund litigation.

Granted, there are risks such a law could be misused, if the police follow what seems to be their established MO of confiscating computer equipment to investigate allegations - and ending up pressing charges on unrelated matters, such as the possession of "extreme" (consenting adult) pornography, as in this worrying case.

But this is a general worry about powers of confiscation under section 19 of the Police and Criminal Evidence Act 1984: which can be misused for dragnet policing; or, ill-motivated complainants who know the impact of a police search and seizure (where computer equipment is sometimes not returned for years) will be distressing for the recipient.

The one issue I do have is in scalability of such a law.  Will police forces and courts be bogged down with a slew of criminal cases against false allegations made on Facebook, Twitter or blogs?

It's clearly wrong and damaging to make a knowingly-false allegation where the intention is to cause distress to others.  It's right for the law to set clear boundaries for acceptable behaviour in society.

But I also feel too often we look to the law to solve too many of our problems.  On one hand a law like this will act as a backstop and prevent extremes of antisocial behaviour, but on the other it may reinforce an expectation that the law is the first option for even minor transgressions - cases where the best option is either mediation, or getting a much thicker skin.

@JamesFirth

Postscript: I noticed under the MCA 1998 anyone has a defence of sending knowingly-false messages that cause distress if the sender is using the message as a threat to enforce a reasonable demand! "Get out, your house is on fire!" (As the bailiff seizes the property by the back door!!)
(2)A person is not guilty of an offence by virtue of subsection (1)(a)(ii) above if he shows—

(a)that the threat was used to reinforce a demand [F3made by him on reasonable grounds]; and

(b)that he believed [F4, and had reasonable grounds for believing,] that the use of the threat was a proper means of reinforcing the demand.

1 comment:

  1. just read in the paper syco are using their full legal powers to prosecute any individuals that tarnish their brand. BRING IT ON. POWER TO THE TWEETERS. P.S Cracking read above

    ReplyDelete

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