“The posting which we consider to be defamatory against Atos Healthcare and our employees is dated March 23rd, 8:51 pm.”
Yes, this uproar is off the back of a post from five months ago.
CarerWatch have responded by letter saying:
Thank you for supplying the date and time of the post that concerns you.
We have finally traced it. We run a live discussion group and posts are normally only current for a few days. In this case the post is five months old. It did not create any interest at the time and has long since become inactive.
Having seen the post we are even more confused as to why you took this aggressive action against us. We were surprised to see that this post was not written by a member of CarerWatch but is merely a link to an article on another site. We were also surprised when we followed the link to see that the original article is still visible on the site of origin. We cannot understand why you would take this matter up with us when your dispute is with the authors of the linked article. We feel like collateral damage in this.
Atos’s resonse raises even more questions than it actually answers and a read of the full CarerWatch post on the matter is highly recommended. Of particular interest to us all, campaigners or not, are the legal implications of links to potentially libellous material. Though one would hope that common sense would prevail in cases like these, research on the subject reveals that unfortunately such a reality is elusive and no thanks to legal eagles and the politicians meant to safeguard our basic human right of free speech.
In his 2010 article “Legal Wrangling Over Hyperlink ‘Libel’ Continues”, James Labie states “It has long been argued, to mixed results, that merely linking to a defamatory statement constitutes defamation in itself.” Of particular importance are the contradictory circumstances in which this has been applied in a court of law. For example, a UK judge ruled that the “libellous” content of a thrid-party link within a Spectator article should be considered to be part of the article itself. Yet in Canada, a judge in a similar case said that such links were the digital equivalent of a footnote.
Applying this to the CarerWatch situation – there was no comment written by the member who posted the link; there was only the link itself which was part of a wider discussion (on a private, members-only forum). As such, there was also no endorsement of the sentiments of the third party, implied or otherwise. The situation is as simple and straightforward as CarerWatch have established it is. As such, the manner in which Atos has directed their displeasure at the “libellous” content of the third party is both ill-targeted and disproportionate.
Lambie pointed out that the cost of libel cases in the UK is 140 times that of the European average. In March of this year, Parliament took steps to eradicate outdated defamation laws which has made so-called “libel tourism” a lucrative market ripe for exploitation the world over, but one that is particularly virulent here in the UK. The motivation of the new draft Defamation Bill per The Independent, was “greater protection of free speech.”
Last year MPs warned that Britain’s international reputation for free speech was being damaged by the “embarrassing” spread of libel tourism. It followed dozens of cases where foreign businessmen and celebrities used the UK courts to sue for defamation even where there was no evidence of substantial publication in this country
Unfortunately, as one Independent reader commented there is “no mention in the Bill or Consultation paper of the rights of the ordinary man in the street to access to justice, which is difficult, if not impossible, with the financial hurdles and absence of legal aid, currently facing him when he is up against a wealthy [publisher].” A cold comfort indeed to the CarerWatch team who stated much the same in their response to Atos.
The report issued by The Libel Reform Campaign is a damning indictment of how antiquated and undemocratic libel law actually is. In summary:
- In libel, the defendant is guilty until proven innocent
- English libel law is more about making money than saving a reputation
- The definition of ‘publication’ defies common sense
- London has become an international libel tribunal
- There are few viable alternatives to a full trial
- There is no robust public interest defence in libel law
- Comment is not free
- The potential cost of defending a libel action is prohibitive
- The law does not reflect the arrival of the internet
- Not everything deserves a reputation
It’s fair to say that under these circumstances campaigners must be vigilant about content. Moderation exists for exactly this purpose. However it is also equally fair to say that a system which forces ordinary people to have to “negotiate” with wealthy corporations contracted by the government because of a simple, unsupported link on a private disability and carer support site to a third party is most definitely a system in need of considerable reform.
- CreativeCrip Atos Communications Strategy (thecreativecrip.com)
- Online defamation cases increasing (politics.ie)
- Facebook and Twitter drive rise in online libel claims (telegraph.co.uk)
- Online libel cases double (independent.co.uk)
- #Tip of the day from Journalism.co.uk – Twitter and libel (blogs.journalism.co.uk)
- Online defamation court cases double in the space of a year (independent.co.uk)
- CarerWatch Discussion Forum “likely” to be reinstated after talks with Atos (thecreativecrip.com)