THE HOBGOBLINS* THAT ARE LIBEL LAWS

Libel laws in the UK have been causing controversy for quite some time. The most recent debates concern Lance Armstrong’s public confession of using performance-enhancing drugs in his cycling career as well as Google subjecting itself to the jurisdiction of Irish and, consequently, European libel laws.

Armstrong’s appearance on Oprah Winfrey’s show, where he admitted something he has been denying for years, caused a stir not only in the media and sport’s world but also on the legal front. It re-opened the issue of the hobgoblin-like nature of libel laws. They exist to protect individuals from unsupported accusations and attacks on their privacy but at the same time place a heavy burden of proof on the publishers. In Armstrong’s case, the Sunday Times articles accusing him of doping back in 2004, ended with the newspaper’s 2-year legal battle and cost it almost £1m in settlement due to the lack of strong evidence proving the cyclist’s misconduct. In August 2012 the seven-time champion was stripped of his Tour de France titles and was banned for life from competing. In the light of Armstrong’s confession, the question remains: who was in the wrong? The newspaper is now attempting to get back the money it paid in settlement.

On the other hand, American companies: Google, Twitter, LinkedIn and Facebook decided to accept the European jurisdiction by establishing their Dublin-based headquarters or subsidiaries. Rather than staying protected by the umbrella of the American constitution, they have exposed themselves to the EU defamation laws. It can be argued that by doing so they have opened themselves up to claims of abusive or offensive content published by and against their users. It is now easier to sue them for defamation under the European laws and request the social networks to remove the infringing materials. As American libel laws are far more onerous on the users who have to prove infringement and writers are protected by the freedom of expression right contained in the 1st Amendment to the US Constitution, it is almost impossible to be found guilty of libel if the author only tries to convey his opinion. (Which, let’s face it, is almost always the case in the social media context!)

Therefore, which one is it: are the libel laws in the UK unnecessarily harsh on the publishers rendering investigative journalism and blogging free from lawsuits impossible? Or are they only striving to protect innocent victims from vicious press attacks and insulting social networks’ commentators? The answer, quite simply (and predictably in this area of law) is that, as always, it is a balancing act of ensuring that the freedom of expression of the author is protected but the right to privacy of the object of the article is untouched…Nobody said that it was easy to be a writer!

Marta Safin

*Good-natured but troublesome creatures, very tricky to get rid off. In the UK law they are friendly to those alleging defamation, in the USA they place a heavy burden on purported victims to prove their innocence.

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