And the beat goes on

After losing the libel case and facing a costs order of £70k, Chris McGrath decided to make an application for leave to appeal (such as his right).

This was denied (last week) on paper but he reserved the right to request an oral hearing to present his case. Today, I was informed that Mr McGrath was granted an audience and this will take place on the 8th November 2012 at the RCJ in London.

See here for details:
http://casetracker.justice.gov.uk/listing_calendar/getDetail.do?case_id=20121010

Interviews and The Future

I recently took part in an interview with blogger Kris King over at Rant in A Minor.

His blog is one of the more intellectually and emotionally challenging ones out there and I do recommend that everyone checks out his story.

His support over the life of the libel case has been brilliant and I cannot thank him enough. I was therefore extremely happy when this interview came about.

He pulls no punches with his questions and the answers are searingly honest. I hope you enjoy reading about my experience as much as I enjoyed telling it to Kris.

You can find the interview transcript here: http://rant.distant-angel.co.uk/2012/05/you-label-me-i-libel-you/#comment-1296

I also took part in an Skype interview with the Skepticule "three Pauls" who all run the Milton Keynes Skeptics in the Pub. You can find this interview here: http://www.skepticule.co.uk/2012/05/skepextra-025-20120422.html

Not long after the final hearing I spoke with James O'Malley who runs the Pod Delusion. His commitment to rationality is admirable and he is a really nice guy too.

You can check out the interview here: http://poddelusion.co.uk/blog/2012/04/05/episode-130-6th-april-2012/

Appeal and The Future

I'm currently waiting to see what happens with McGrath's appeal which, from my understanding, should have been filed by now. I have not received notice of it although I could well have missed it... I mean, I have better things to read these days than the half baked ramblings of a libel bully.

I'm still careful about what I write about the case but if this is not the true impact of what is called "the chilling effect" I don't know what is? How can it be right that I have to monitor every single thing I write 3 or 4 times before posting? I have a short enough attention span as it is! I'll get bored if I have to start redrafting things time and time again. Whatever happened to the art of conversation anyway? If I say something to offend someone I want to find out why they are offended first. People should grow up a little and take things on the chin.

As for the future, well I'm back into some hard strength training in preparation for either the Midlands Strongest Man 2013 or 2014. I reckon I'll have a good shot at entering the competition judging by the weights I'm currently lifting but it's a long hard road and not everyone makes it.

In between that and normal family duties I'm trying to get things back on track career wise. My wife is stable in her job and it's a good time to put my degree to good use. I will continue to write for The New Journalist and on my other two blogs: The Faith Fruitcake and The Sticking Point and then see what comes up. I have an interview with a British Olympic weightlifting hopeful ready to publish soon and news of a libel tourism case which is sure to be quite explosive.

Thanks for all of the support from everyone during the case (and after). It's been good to get to know so many new people and share some amazing experiences.

Harassment Laws & Free Speech II

I do not want to rehash a scene which has already been forensically examined over at Spiderplant Land.

BUT SOME OF THE LAWS IN THIS COUNTRY ARE FRICKIN' CRAZY!

@Sir_Olly_C, a blogger, who holds his local council to firm account was arrested, charged under the Communications Act 2003 and the Protection from Harassment Act 1997 and, before even being found guilty, was slapped with a restraining order.

Welcome to free speech in 21st century Britain.

I have previously made my thoughts very clear about how the harassment laws in this country are designed to stifle free speech. It seems now that these laws are being used to their fullest effect. I suspect that Parliament did not intend for these laws to be used in the way that they are. Genuine criticism must never be stifled or interfered with.

If the Communications Act 2003 is going to be used to stifle freedom of speech based upon the level of offence that a person feels then perhaps more politicians should be locked up? I am frequently offended by the lies and the way that they treat their constituents with utter disregard.

I am not seriously promoting a policy of widespread committals here, but if a persons level of offence is all that is needed to bring a crap case to court then we are heading for a very depressing period in British history. 

The situation is quite clear and the battle lines are being drawn; if you criticise a person or an organisation, however legitimately, you are going to be on the end of these anarchic laws. Mark my words, more people will become aware of the legislation which enables them to close down dissent and with harsh repercussions for the "offender".

Support @Sir_Olly_C any way you can. Retweet using the #FreeTheBexleyOne hashtag and lets hope more people get behind him.

Victory Pose

Jonathan Price, Me, Robert Dougans, Serena Cooke

Media: The Independent

http://www.independent.co.uk/arts-entertainment/books/news/author-chris-mcgrath-faces-six-figure-legal-bill-after-unfavourable-amazon-reviews-case-is-struck-out-7618976.html

This is an article by Jerome Taylor of the Independent. I have disputed the accuracy of the report on a couple of points but it is, by and large, a fair summary of the case.

----------------------------------------------------------

"An author who tried to sue a father of three from the West Midlands over comments made in a series of unfavourable reviews on Amazon is facing a six figure legal bill after a judge struck out his case.

Chris McGrath, an online entrepreneur from Milton Keynes, tried to sue Vaughan Jones, 28, from Nuneaton, over a series of reviews and postings he made on the Amazon website about his self-published and little-known book “The Attempted Murder of God”.

Amazon, the prominent evolutionary biologist Richard Dawkins and his eponymous foundation were also named as defendants because they either carried the review or discussion threads linked to it that Mr McGrath claimed were libellous.

The four defendants applied to have the case thrown out with proceedings coming to the High Court late last year. The judgement has now been made available to the public. In it Judge Maloney dismissed the case against Amazon, Richard Dawkins and his foundation whilst throwing out the vast majority of the case against Mr Jones. Mr McGrath will now face legal bills of around £100,000.

The judge ruled that although a small portion of Mr Jones’ words might be deemed libellous by a jury if it went to a full trial, there was little point pursuing that avenue because the potential damages would be slight compared to court costs and time.

The judge also questioned whether Mr McGrath, a married father of two, might have trouble convincing a jury that he had been wronged because of his own online behaviour. During proceedings it emerged that the author had used a number of online pseudonyms to review his self-published book and come to his defence once people began to criticise his work.

Mr McGrath’s book – which he described as a satirical parody of the often fractious debate between science and reason – was initially published anonymously under the pen name “Scrooby”. It came to the attention of Mr Jones in September 2010 when multiple links to Mr McGrath’s work began appearing under reviews for “The Grand Design”, a popular science book by Stephen Hawking and Leonard Mlodinow which argued that God is not necessary to explain the origins of the universe.

Mr Jones wrote a series of uncomplimentary reviews of “The Attempted Murder of God” and, after doing online research, outed Mr McGrath as the author. He also named Mr McGrath’s two children, something Judge Maloney described as “nasty”. Increasingly hostile replies went back and forth between Mr Jones, Mr McGrath and Mr McGrath’s online pseudonyms – the content of which became subject to libel proceedings.

Libel reform campaigners, who have expressed concern that Britain’s defamation laws disproportionately favour claimants, said last night that the case should not have got to the preliminary hearing stage.

Michael Harris, from Index on Censorship, said: “We want the government to ensure that libel actions cannot proceed unless the harm caused is both “serious” and “substantial”. We’re concerned that it cost Amazon £77,000 to have this case struck out by a judge, an amount of money that most ordinary libel defendants simply cannot afford. Change to our archaic libel laws cannot come soon enough.”

In a statement provided to The Independent, Mr McGrath said he intended to appeal against the strike out ruling and proceed to a full libel trial. “There are many legal bases for believing this judgement is deeply flawed and we have until 30 April 2012 to challenge the decision to ban us from appealing,” he said.

He rounded on libel reform campaigners, stating that British law had made it all but impossible for litigants in person such as himself to successfully bring a libel case. He also defended his use of online pseudonyms stating that he was “trying to pull off a complicated satire” at the time.

“There are artistic reasons that are not unethical, to use fake review accounts and, in sudden defence of a serious attack, it seems eminently reasonable to reach for whatever resources there are available to protect family, name and reputation,” he said.

In an attempt to bring proceedings to a close, Mr Jones has agreed not to repeat any of the sentences that the judge ruled might be deemed libellous by a jury.

“I did win my strike out application, no question,” he said. “But when you consider the case as a whole, no-one has won here really. And that's why, I suspect, libel reform is needed more than ever.”

----------------------------------------------------------

Points of dispute:

1) The costs that the Claimant faces is £75,000 as agreed by a costs order at the end of the hearing

2) The Judge, at no material time, ever used the word "nasty". There were four persons taking notes of the two day hearing including myself. In response to a comment by my barrister that "there was nothing illegal about Mr Jones expressing sympathy for the Claimant's children based on his behaviour" the Judge said "Yes but it wasn't nice".

3) The Judge stated, first and foremost, that the range of defences likely to be used meant that the question of whether words were libellous was not fit for trial and that the cost in discovering what are, on the face, statutory defences, was not worth the time and money. The actual question of damage only arises once the defences are considered. In this case, I would argue that the defences demonstrated that whatever would be left would not be fit for trial.

The Judge was clear that there were was no instance, in his deliberations, where he could suggest that either parties case could conceivably succeed at trial. However, libel law is weighted in favour of the Claimant. When a strike out is applied for, this weighing increases because it is assumed that they are in the right from the start. It is, therefore, an uphill task for a Defendant to defend a libel claim let alone file a strike out.

The fact that the strike out was successful, considering that perspective alone, should speak volumes about the merits of the Claimant's case.

4) The Claimant was not "banned" from making an appeal. The Judge made it more than clear that permission was denied verbally and that the Claimant had to revert to the proper process of filing an application. To file an appeal with the the High Court costs £235 for the Permission to Appeal application and then £465 for the hearing thereafter. The Court, already subsidising the process according to a recent report, does not need to forgo £235. Therefore there is no "ban" on filing an application at all. The Claimant has not been added to a Vexatious Litigant list.

5) I'm actually 29 now. A year closer to my third decade.

As for the Claimant's justifications for his behaviour as quoted in the article? I simply don't care right now to be honest. The Judgment considers the excuses/reasons given for the Claimant's conduct and there is no reason, right now, to go beyond that.

Libel Case: Result

On the 30th March 2012 Judge Moloney handed down Judgment in the libel case I was involved in.

The Judge found in favour of the Defendants who were successful in their application to strike out the claim.

Since December 2011 I have been the subject of what one might call a hate campaign. Various twitter accounts and web pages have been set up to smear my character by the Claimant in this case. Many of these smears have been sent to various organisations, MP's, notable celebrities, supporters and organisers of Libel Reform, my own friends and family and other twitter users.

I can now report that in December 2011 all parties in the case were sent the draft Judgment which, under the Contempt of Court Act 1984, bound us not to reveal either the result of the case or the content of the Judgment itself.

Mr McGrath knew in December 2011 that he had lost and knew that he was facing a large costs order.

I cannot, and will not, make any assumptions about Mr McGrath's state of mind nor infer that he took the decision to smear me as a result of knowing the decision. I will let the facts of the matter stand for scrutiny and people may make their own mind up.

The case was struck out. 60 pages of allegations and argument was narrowed down, by a Master of the Court, to 16 pages. This was then narrowed down to 4 or 5 sentences which the Judge found 'could' be libellous but for which I had available defences to.

The Judge decided it was not worth a trial to hear the case and asked that, in light of this, whether I would be willing to agree not to repeat those sentences (or the meaning implied) in the future to bring an end to the case.

I have, at this stage, agreed to do so to bring an end to the proceedings. It was not worth increasing costs, time and stress if it could be brought to a quicker conclusion. I have a wife and two young children who need a husband and Father around the place.

When the Judgment is published, people will see that 90/95% of the case was struck out because of the Judge's own interpretation of the facts and there is no question that this is a victory on a number of levels which I will explain in due course. But, for example, the Judge ruled is not defamatory to call someone a Creationist. For those who debate religion and atheism this is quite an important finding by the High Court.

The claimant now has to pay £75,000 in costs (within 3 months), was denied permission to appeal and failed in an attempt to have me committed to prison for "contempt of court". Of course my sympathy is with the claimant's family who I'm sure do not deserve to be placed in the situation they are now in.

It is also certain that this is not quite over for the claimant as he has stated his intention to file a written application for permission to appeal. I will deal with that as and when I need to because an application for permission to appeal then needs to turn into a successful one. At that stage an appeal needs to be filed and then perhaps the story may take another twist before the end of the year.

But, in short...

Thank you to...

Robert Dougans, Serena Cooke, Jonathan Price, Trevor Gill, Neil Porter, Hardeep Singh, David Burton, Janet Murtha, David Allen Green, Simon Singh, Ron Lewis, Unity MOT, Maria Wolters, Gareth Winchester, John Gray, Kris King, Paul Tilley, Popehat, Darren Flynn, Abigail Amey, Mike Harris at Index on Censorship and the hundreds of people from both the atheist and religious communities who have sent me messages of support throughout this process.

My family also deserve some thanks for putting up with me rabbiting on about the case and hopefully they will see not only how serious it all was but how someone was able to stand up to a libel bully. Without their support I would have found this much harder. The only trouble is, I will now be around much more to annoy them about other things.

Alternative Libel Project

I attended the Alternative Libel Project launch on Thursday 15th March in London. It was a fantastic night for all concerned and really brought home the level of support that the campaign has.

The petition for libel reform has over 60,000 signatures which is a testament to the work put in by the Index on Censorship, Sense About Science, English Pen and all of the people who work for those organisations.

The campaign might not have had as much publicity if it were not for Simon Singh's public libel battle with the British Chiropractic Association and it is because of his stand, in the face of some extremely burdensome costs, that others have felt emboldened to also fight their corner.

Everyone should sign the pledge wall if only to offer their support to the campaign further. You can do this here: http://www.libelreform.org/pledge-wall

The Inner Temple, when the event was held, is a magnificent building full of history and character. I was caught on camera looking around at the various oil paintings by John Gray, a fellow libel survivor:

You can see me next to the tall chap (Robert Dougans) towards the bottom left of the photo.

The Alternative Libel Report that was launched offers some sound reasons why mediation before trial and cost caps are important in the push for reform.

My personal opinion is that I think many claims can be dealt with fairly quickly, and certainly within a month of issue, by a tribunal process which determines the level of readership of whatever defamatory words are complained of. If the readership is low then the level of damage will be also be relatively low and therefore claims can be assessed for the correct track (similar to how the small claims court allocates claims).

David Allen Green asked the audience to consider what the law of defamation was for? His answer was "vindication" and I agreed with him when he said that take-down notices do not provide vindication. Suing people for al they are worth is also not vindication. This is something which is important to consider in the grand scheme of libel reform for those who are wondering why science is being stifled by the chilling effect of a libel threats.

I was overwhelmed with how many people wanted to speak to me on the night. They had all heard of the libel case I am defending and I had some interesting conversations with people like Hardeep Singh, John Gray, Robert Dougans. Simon Singh, Sile Lane, David Allen Green, Henry Spooner, Jonathan Price, Mike Harris, Nick Cohen, James O'Malley, Liz Lutgendorff (who runs The Pod Delusion)... and many more.

I was talked into a photo with David Allen Green, John Gray and Robert Dougans...

I'm into powerlifting and have spent the past 8 weeks on something called GOMAD where the aim is to drink a Gallon Of Milk A Day - coupled with an intensive squat/deadlift/press routine it packs on muscle but also bloats the hell out of you and makes you look quite fat (as my best mate Neil Porter knows all too well). The picture reminds me that it's time to get off the protein shakes and get on the rowing machine.

But I have to say lifting a few accumulated tons of iron in the gym certainly helps get rid of any frustration and stress that builds up during the case. I start the Smolov squat routine next week and coupled with cutting my diet down to a single bean in reduced fat tomato sauce I should either be lean or dead depending on how intense the workouts become.

This is me deadlifting... before I started on the GOMAD plan :)

Enough of that for now, but I think the personal experience of being involved in a libel case tends to be lost in the procedure and detail  focused push towards reforming the laws. Whether reform will change the personal experiences for those involved is difficult to say right now because we do not know what the new rules will look like just yet.

And speaking of personal experiences of libel, the final hearing for my strike out application will be heard on the 30th March 2012 at 2pm in London (RCJ). If you can make it, it would be great to see you there.

You can also hear me on The Pod Delusion being interviewed by Hardeep Singh about libel reform and the personal experience of defending a libel case (although extremely careful not to say too much about the case itself).

Thanks for your support; "Crypto Commie Fascists" like me (a recent insult) still need your support.

Donations - Please read before clicking the donate button

I want to say a heartfelt thank you for all of the messages of support, retweets and of course the donations I have received.

I set out trying to reach a target and I exceeded it by £9. The donations are strictly for legal costs only. I cannot make that any clearer.

However, some people have still said that they want to donate (see comments section/reddit) and rightly pointed out that I will still have other costs incurred nearer the time such as child care, travel, printing etc. I must admit I had my eye on those but I hoped to be able to put some more overtime in at work to try and cover it if I can.

However, in light of people requesting that I keep the donate link I will do so but only on the basis that people understand I have reached the total I wanted to for the legal costs so if people want to help me towards the sundry costs that would be a tremendous help because it's not cheap getting to London and back nor taking time off work.

If people search on the Consumer Action Group (user: vjohn82) they will see that I have worked, for nearly 4 years, helping people for free and even helping them in court all without asking for a penny in addition to other voluntary work in my local area. If I was a greedy person there would be no reason for me to have done those things. In any event, any donations which exceed my costs will go to a worthwhile cause.

After my previous request for donations I was left with £25 (ish) - this was donated to a local charitable cause helping a toddler who had been subject to domestic abuse (this was an appeal in the Nuneaton area).

So thank you for your donations and/or spreading the word.

Fresh appeal for donations

I am restricted by how much I can say right now but hopefully more will be revealed once the final hearing takes place.

However, I need to raise approx. £600 in legal fees. I have discussed the issue with my wife and while we are not at the bottom of the scrapheap I still only work part time (as I care for our two children who are 6 & 7) and my wife does not work regular shifts at work (they are booked as and when).

I have managed to find a way to cover £200 of the costs by selling my guitar (at a loss and under value) but I need to try and raise around £350 to £400 as I have some overtime pay (approx. £50) due at the end of March.

The background to the case can be found here but, in summary...

I am an Atheist who wrote words (reviews/summaries of a situation/general conversation) on two websites (Amazon and the Richard Dawkins Foundation) about an author of a book called "The Attempted Murder of God". The author found those words objectionable, on a number of levels, and decided to issue a claim in the High Court.

The claim was heard on the 10th and 11th of November 2011 and I managed to gain the support of the Libel Reform campaign amongst other organisations who sympathised with my situation.

Many people stepped forward with their best wishes but also managed to raise some money for me to meet my costs during a time when my wife was out of work. I was extremely grateful for people rallying around at that time and it is only because I do not wish to embarrass anyone that I mention no names (well not yet and only then with permission because some donors prefer anonymity).

Therefore if anyone can help me trying to raise the £350/400 that I need you would have my deepest gratitude and thanks and I will do my best to make it up to those people in some way. I have many talents and I'm sure that some people might find a use for them. If it means washing cars every weekend for the next month to get to that total, I'm willing to do it!

So if you can help please click on the donate link on the right. I'm not sure that I am a worthy enough cause and I would never claim to be. However, there is a more serious issue underpinning the libel case which I think threatens freedom of speech (hence this request).

I hope to be in a position to say more on the case in the near future. Until then, please spread the word and thanks for reading.

Harassment Laws & Free Speech

This is a short opinion piece on the end of free speech and why I believe that the current interpretation of the laws governing how people conduct themselves is completely wrong. I know because I'm on the end of what I perceive is a miscarriage of justice or, at the very least, an abuse of police power in terms of how they investigate allegations of harassment.

Free speech is a very strange thing to quantify. Is it something which needs restricting for fear of causing offence? Is it the way in which something is said? Can it be made worse by the way in which the information is presented or distributed? I argue that in the last instance, free speech is very easy to close down and without anyone knowing about it.

But what is free speech as a principle? Let's start with the HRA 1998.

Human Rights

Article 19 of the Universal Declaration of Human Rights states:

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Using this rule alone, discounting all laws in any other country, people would be allowed to distribute child pornography. No rational person would ever reasonably suggest that Article 19 should not be subject to a limitation. For example, a person seeking to distribute or receive child pornography could well say that their "free speech" rights are being denied were an authority to intervene in this information exchange. This does not mean that there is not a legitimate reason for this denial subject to the laws the authority is invested with upholding. There could well be a society which decides the dissemination of child pornography was a legitimate activity. On those lines Article 19 would be a true beacon for the "anything goes" crowd. But thankfully we do not live in a society which finds child pornography acceptable.

As a general principle then, free speech is the right to hold and impart information free from authority except where that information creates a criminal liability or civil tort. That is, people can still impart information that could be considered criminal but should expect to face a sanction if an authority hears about it.

The Right of Privacy & criticism of public figures

This is something quite contentious in view of the Leveson Inquiry and I might come under a little fire for suggesting that not everyone has an automatic right to privacy. Individuals leading private lives should be protected for that position where their private life does not become "overtly public". But what does this mean? Well I think it means someone who deliberately opens up a part of their life for public consumption or commits a crime against the state.

I concede that this is not a perfect argument.

For example, a person could win the lottery. This is newsworthy but the actual "win" is accidental in the sense that the mathematics are staggeringly high. No-one really expects to win the lottery. They therefore have a right to decide whether to make this public despite deliberately taking a course of action which would potentially lead to a newsworthy event. A counter example is a person who accidentally crashes into another car through losing concentration and commits manslaughter. This is a crime against the state but they did not set out to deliberately make their actions worthy of public consumption. Nevertheless they do not have the right to decide whether this information becomes public consumption.

The Right of Privacy tends to be relaxed to some extent when it comes to the discussion of public figures or, rather, there is more leniency. There is a general expectation that should someone private suddenly become more "public" that they have given up some right of privacy. I have conducted some research into this and my conclusion is that this should relate mainly to the activity in which that person has become a public figure in.

If a footballer has a crap game, I would expect a reporter to write about that. I would not expect a reporter to comment on the player's crap game and then follow his comments with a diatribe on the player's personal life unless it was reasonably judged to be affecting his performance. For example player A plays crap on a Saturday but was photographed falling out of a pub the previous Friday night. At the same time, a player who takes his child swimming on a Friday afternoon and then plays crap on a Saturday should not face the same accusation because he has a right to a family life. I think, were the situation tested reasonably, this would be a logical position to take.

Similarly if an author writes a book they should be judged on their work. If they write their own reviews they end up suffering the fate of having their conduct evaluated. The most prominent case which comes to mind is that of Orlando Figes who trashed his rival authors using fake accounts. When rumbled he claimed it was his wife who wrote them before finally conceding it was him all along. That he is a prominent Professor in the field of History and employed at the UCL makes the tale even more woeful. But he has received his criticism and whilst initially reacting badly to the issue, by threatening legal proceedings via a law firm, he has gone back to his day job and is producing good work again. There was no need for his tale to be prolonged of course. The media did what was proportionate at the time. The issue is now, for the time, forgotten. News moves on quickly to the next headline.

But Professor Figes brought it upon himself with his actions. He deserved the criticism not just because he had set up those fake accounts but also because he was in the public eye and expected to behave himself in his chosen field.

Harassment Laws, Abuse of:

If I said that we are heading into a police state where freedom of speech is concerned I would be denounced as a crank by people who think that the term "police state" is synonymous with any flavour of conspiracy theory you like to think of.

What I shall do is present some evidence I have found and then let people judge for themselves.

The Protection from Harassment Act 1997 (PHA 1997) exists as a bulwark to unwanted intrusion into people's private lives. The law states:

1 Prohibition of harassment.

(1)A person must not pursue a course of conduct—

(a)which amounts to harassment of another, and

(b)which he knows or ought to know amounts to harassment of the other.

The problem is that people can find themselves on the end of this law should they be subject to a complaint from any person who argues that they are being harassed. I do not have a problem with people complaining that they are harassed. Far from it.

What I do have a problem with is how this law has been interpreted and the wide range of police powers that can be used to cause people accused of harassment a significant deal of harm.

The Current Situation (a case scenario)

Mr A complains to the police about Mr B because he alleges that he is being harassed. The dispute is over a garden fence being in the wrong place. Mr B has been writing letters asking Mr A to move the fence 4 inches so that when he comes to sell his house there is no problem with the border. Mr B expressed in his letters that he was unhappy with trees growing over into his property and that if they continued to do so, he would remove the offending branches himself.


Because Mr B was contacting Mr A by letter, the police can issue something called a Police Information Notice. It's official title is a Prevention of Harassment Letter: Form 9993 and it looks like this:

Form 9993

Mr A felt under threat because he received 3 letters in the course of 4 months. Mr B felt his conduct was reasonable because he was trying to sell his house and needed a resolution without going to court to settle the matter which would have been expensive for both parties. As a means of resolution, the letters were the best option because they were not on speaking terms.

However, because of the complaint the police were able to dispose of the complaint quickly, efficiently and, in what seems to be a complete contravention of the rule of innocent until proven guilty we expect in a civilised society, are able to issue this form and record information which affects Mr B for a minimum of 7 years.

The border dispute was eventually settled between Mr A and Mr B via court action. Mr B won his case and it cost them both around £3000. But Mr B won because the dispute was obvious. He moved house and thought he had moved on.

However, Mr B is a teacher of English. He needs to complete an enhanced CRB every 2 years. It comes up for renewal months after he has moved house. The headteacher of the school he works at asks him into the office to discuss his CRB. The headteacher points out that there is information which has been added to the CRB stating that he was given an official warning. The content simply states that Mr B was sending letters of harassment and was given a warning. The headteacher was unhappy that Mr B, being a teacher of English, could allow himself to be compromised despite a perfect record at the school. His explanation is accepted but the information is leaked to the rest of the school staff accidentally. Mr B feels under constant scrutiny to prove himself and cannot focus on his job because of the gossip. He eventually leaves his job, unable to cope with the pressure.

He feels like a criminal. He feels branded. He feels like there has been a miscarriage of justice. The complaint details and the associated paperwork will be retained for 7 years. But the information will remain on his record until he reaches 100 years of age. Any future careers involving the need for an Enhanced CRB will automatically flag this information and he will need to explain it time and time again.

This is a case scenario. But it has happened. It is based in reality. All I have changed is the profession of Mr B.

I have not included details of the police investigation. That's because there was none. There never needed to be any under the legislation (or rather, the interpretation of the legislation). And I shall explain why.
Interpretation & Guidance

The guidance for police officers when investigating claims of harassment is found here and the CPS have also published some information which is quite useful to the layman.

A most effective tool

Tool is the wrong word perhaps?. Weapon is far more accurate I think but this sounds a little too aggressive. In any event using the police to close down free speech is a very effective method with documents like Form 9993 at their disposal. There does not need to be an admission of guilt. There does not need to be a thorough investigation. There does not even need to be any concrete evidence that a person accused is actually guilty of any alleged crime.

Form 9993 exists only to warn a person that their conduct "might" be indicative of harassment. But it's effects on the person accused is chilling and it can have dire effects on that person's career, especially where an enhanced CRB is required.

The police is, in effect, Judge, Jury and Executioner. This is far too much power for one group of people. The CPS exist for a reason. They do not get everything right. But an harassment warning can be issued with perhaps one or two people deciding on that outcome.

I won't repeat the officers name but I was told on the phone that the harassment warning would not affect a person's chances of gaining a career in a certain area of employment. I doubt that this officer lives in the real world. If person X has a practically identical CV to person Y, and all other things were equal, but person X has this harassment warning on their record, who do you think would be most employable?

The argument from the officer was a terrible one which also offered me a glimpse into their world. The harassment warning exists only as a way to close down a crime report quickly and with some sort of tick in the box. The dismissive nature of the officer's aside that a person's career won't be affected was very arrogant and disregarded how information recorded by the police and then made available to employers has a real world impact on a person's life.

The other point that should be made on why it is an abuse of power is that an harassment warning cannot be appealed.

Conviction Rates - a worrying upward trend?

Since being introduced, convictions using section 2 of the PHA 1997 has seen a remarkable upward trend:

It's difficult to get information about how 9993 forms are issued, their number etc. But someone had a go over on the WhatDoTheyKnow website which handles Freedom of Information requests.


The horrible truth

The FOI request, responded to on the 23rd May 2011, contained some remarkable admissions by the officer in charge of collating the information. Here is just one:

"This form is issued in allegations of harassment that do not reach the evidential standards for charging."

So, in other words, someone can make a complaint about you of which can contain little to no evidence at all but this can be recorded on your CRB, disclosed to your employer (current or prospective), university or indeed anyone who requires an enhanced disclosure.

If I was questioned about any other crime (to my knowledge) that I am alleged to have taken part in but there is no evidence, or certainly not enough to secure a conviction, then that is the end of the matter. Nothing is recorded, nothing is disclosed and nothing is filed which impugns your character.

Form 9993 disposes with the notion that a persons is innocent until proven guilty. By recording the information and making it public, it is you who would have to explain it away for the rest of your life. You do not even need to be arrested. You cannot even appeal the decision.

Emma Norton of the Liberty Clinic wrote in the Guardian that:

"It has been suggested by some that harassment warnings are an all-too-convenient option for the police, as they require little or no investigation and can be dealt with quickly and cheaply and they have no awkward rights of appeal attached. If people are concerned about the circumstances in which they have been given a harassment warning, they should consider lodging a formal complaint and/or seeking prompt legal advice."

In other words, Form 9993 is the Happy Meal of Police powers; it's unfussy, pleasing to the profit makers, kids tend to accept one without questioning how it will affect them in the future and parents dole them out knowing they are full of crap. Form 9993 is doled out as a quick resolution to a police complaint allowing an officer to close down a case pleasing the powers above, people accept them because they do not know the full effects (because the Police do not have to explain what effect they may have) but they know full well the grief that they could potentially cause.

No right of appeal. 21st century Britain. And it has blurred the lines between civil and criminal complaints in a disheartening way.

Read this piece by George Monbiot http://www.guardian.co.uk/commentisfree/2009/feb/05/anti-stalking-liberty-central. An extract reads:

"The law creates an offence of pursuing "a course of conduct which amounts to harassment of another". Harassment is defined as "alarming the person or causing the person distress". The act can be used to impose injunctions on people, criminalising their previously lawful activities. As the injunctions use civil law to create criminal offences, they require a much lower standard of proof: hearsay evidence and untested and unproven allegations can be used to criminalise any action the police or the courts wish to stop."

Why am I writing this?

I want to change this law or, rather, the interpretation of it. It is a draconian piece of legislation which passed through Parliament without any real thought it seems. There are genuine cases of harassment of which I am sure. But let's try a thought experiment.

Is it legal to create a website criticising an individual?

I think it should be. Should you harass an individual with this information you have written about them in direct messages and contacting their friends. family, journalists and MPs? I'm pretty sure that would amount to harassment. For if a website is created, no-one forces you to go there to look at it. It's like walking onto a knife that someone is holding. They are not murdering you for goodness sake. But contacting someone repeatedly with this information and then their friends etc is tantamount to infringing their private life and creating a genuine annoyance.

What about if someone sends you an email out of the blue on April Fool's Day? Is this harassment? No. It's not. What if you reply to this email in a civil manner? Is this harassment? No.

What about if you reply to that email in a civil manner on 3 occasions asking for more information about what was contained in the original email sent to you? Is this harassment?. No.

What about if you are ignored throughout the day and you finally reply with a sort of "fuck off" and leave me alone type response. Well bearing in mind you could have been subjected to an April Fool's Day prank then no. What about a sarcastic response?

This is not unreasonable and it cannot be harassment.

If you send someone an email threatening legal action, you should not be surprised if they tell you where to go but especially on April Fool's Day. In any event, a reply should not be considered harassment if you are responding to an unsolicited email.

It shouldn't be an offence to insult someone but the current legislation blurs this line between a civil and criminal act. This is not fair. It's not reasonable. It needs fighting.

Religion, criticism of

Another reason I am writing this is because it reflects on a person's ability to criticise religion. Martyn Saunders-Rawlings, a former member of Hastings and Bexhill Jewish Society, had protested against a council decision to lease a building to an evangelical group at a reduced rate and with an annual grant.

After writing two letters raising his objections to the building, he was given a Form 9993.

There is an imperative for this situation to be reversed. We do not know how many people have been given these warnings because they are recorded in a different way. And who wants to own up to having this on their record? More importantly, how many people know that this warning exists on their file waiting to be revealed?

Ideas

I would appreciate some ideas on how to change this situation. Lawful protest, in all forms, is mainly under threat. I'm thinking an online petition is a good way to highlight this issue or perhaps try and link with the Index on Censorship to see if we can come up with ways to drum up support.

Links

Here are some Freedom of Information requests, case law and other links which might be of interest:

ttp://www.met.police.uk/foi/pdfs/disclosure_2011/march/2011020001767.pdf

http://www.met.police.uk/foi/pdfs/disclosure_2010/december/2010110002478.pdf

http://en.wikipedia.org/wiki/R_%28on_the_application_of_L%29_v_Commissioner_of_Police_of_the_Metropolis

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/1999/732.html&query=

http://www.homeoffice.gov.uk/publications/about-us/consultations/police-powers/

http://www.hampshire.police.uk/NR/rdonlyres/1C97440D-2990-424B-B560-FD980F20CBD5/0/12901.pdf

No decision

I have received a lot of emails and messages from people asking for an update on the case.

Also, there has been a lot of speculation on twitter who are suggesting that my silence means I have lost or, in that the Claimant's actions means he has lost etc.

I must stress there is no decision that has been formally arrived at. Judgments are only finalised when they are posted on BALLI. Only then can the Judgment be discussed from a win/lose scenario.

Any person who reveals a decision before it is formalised can go to jail. This is serious stuff. The Civil Procedure Rules and Practice Directions make clear that:


"Any breach of the Practice Direction may be treated as contempt of court and punished by imprisonment."


So, to make it clear, I will not discuss the content of any judgment or any other aspect of the case until it has been handed down formally and appears on the public record. I know this is unsatisfactory for people interested in the case but the sanctions are quite severe and I have a wife and two young children who I have to take into consideration.

Thanks for your support and understanding... hopefully there will be some news which can be shared soon.

Libel Reform and why it should matter to you

I have received a few messages asking what Libel Reform actually is from people who are struggling to make it through all of the information. This is understandable so I'll try to summarise it in the best way I can in the little time I have...

Libel is essentially the written word being used in such a way as to defame a person (lower their reputation in the eyes of others). Slander has the same effect but with the spoken word. In recent times, where internet forums are concerned, the boundaries between libel and slander have become slightly blurred but they still exist as separate entities so far as the law operates for the time being.

The best example of the 'blurring between the boundaries' comes from Smith v ADVFN Plc & Ors [2008] EWHC 1797 (QB) (25 July 2008) paragraph 16:

"16. When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a "thread" and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it."

This kind of 'blurring' has been considered by the Libel Reform campaign report but I'll come to that in a moment. But if you participate on forums or even Twitter you might like to consider the ramifications of what you write more closely or at least consider that the Libel Reform campaign is one which you need to support if you value your freedom to participate in online exchanges.

There are a number of defences to any accusation of slander and libel such as 'fair comment' and 'qualified privilege' which are even more difficult to prove than the "truth". But to show how even the strongest defence is susceptible to ridiculous penalties read on...

The primary defence is that what you wrote/said is the truth. Under English law, it is the Defendant who has to prove that what they wrote is true. In effect this is a reversed burden of proof. The presumption of innocence afforded to all person's in England is removed under the current libel system. You are, at all times, classed as guilty and the burden of proof is extremely high. So high in fact that you might as well give up in some cases because the costs involved in proving your case might outweigh the benefit of vindicating your own comments.

The best example for this is Ben Goldacre who was sued by Mathias Rath. Even though Goldacre "won" his case, after the legal costs were chopped up he was out of pocket by £170,000 (well, his 'publisher' bore the brunt of the costs). Yep, read that again. £170k. Shocking. And Simon Singh, who I referenced in my last blog post, also stood up to what Dara O'Briain term "libel bullying"

It makes you wonder why people bother at all. But if it wasn't for people like Goldacre and Simon Singh we wouldn't have had the consciousness raising about UK libel that perhaps we have witnessed.

So what is libel reform? Well, the campaign was set up by English PEN and the Index on Censorship as a rebuttal to current system but also to lobby Parliament. Josh Kampfner, the CEO of Index on Censorship wrote:

"If we don't act we're at risk of becoming a global pariah. There are US States who view English libel law as so damaging to free speech they have passed laws to effectively block the decisions of English judges. Our report is an important milestone in modernising our antiquated and chilling approach to free expression."

The report, following a year long enquiry into the current libel system, has the following suggestions:

1. In libel, the defendant is guilty until proven innocent

We recommend: Require the claimant to demonstrate damage and falsity

This would be a remarkable divergence from the status quo but would be a great step forward. The law currently operates along these lines:

Person A sues Person B. Person A does not need to prove what was written was false or prove that there was any damage caused. Person B has to prove what they wrote is true. Person A sits back while Person B does the hard work but eventually proves their case. Person A is not equipped to pay Person B's legal costs probably in the tens of thousands. Person B therefore wins but is out of pocket, potentially ruined and there is no sanction on Person A whatsoever.

This is the Goldacre case down to a tea but it is precisely the case that needs protection under the reform proposed. That said, it is still not quite enough for the law to operate on the basis that Person A proves their case because this can still create a significant cost burden for the parties involved with no guarantee of recovery. The Libel Reform campaign recognises this in their other suggestions.

2. English libel law is more about making money than saving a reputation

We recommend: Cap damages at £10,000

This is a positive suggestion but if Person C is maliciously libelled by Person D and causes a £1/2 million drop in turnover and Person D has had a significant stake in picking up the dropped business (i.e. gaining a financial advantage in damaging a competitors reputation) then a cap makes absolutely no sense at all. I think this needs some sort of rethink; I would recommend that Person C has to prove financial loss before the upper limit is considered.

3. The definition of 'publication' defies common sense

We recommend: Abolish the Duke of Brunswick rule and introduce a single publication rule

The Duke of Brunswick rule is 'multiple publication giving rise to multiple causes of action'. This has led to people being able to sue, from foreign jurisdictions, in the UK (also known as 'libel tourism') for even minimal publication where they allege they have a reputation. It's a Victorian Law and it needs to be updated to reflect the digital age.

4. London has become an international libel tribunal

We recommend: No case should be heard in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here

There is a reason people choose the Royal Court's of Justice as their venue of choice... this should offer some
reason of why reform is needed in this area.

5. There are few viable alternatives to a full trial

We recommend: Establish a libel tribunal as a low-cost forum for hearings

I know of no real process that can be used as an alternative to a full trial save for the Defendant in a libel case taking the VERY risky step of attempting to 'strike out' the Claimant's case (also known as 'Summary Judgment'). It's risky because there is no guarantee of winning, the Claimant is given the upper hand in the application (or assumed to be right in what they have claimed and thus the burden of proof on the applicant is ridiculously high) and it is in no way cheap.

In my libel case, I applied for Summary Judgment. Some have seen this as a very bold move indeed because of the risks. If you win, then this demonstrates that the case had no merit and there was no real prospect of a case succeeding. If you lose, it has the effect of showing that you have lots of hard work ahead of you to prove your words because the Claimant is assumed to be correct. 

What would help is a compulsory mediation or arbitration service where prospective parties can resolve some issues before taking the bigger step of High Court action. This needs to be compulsory because the advantages are still there for Claimants to take that step. Introducing a compulsory model ensures that the balance is restored on some level, reduce costs and more than likely resolve matters before the next stage. Judges will be clearer about what case they have to hear and many of the trivial bits of nonsense that tend to arise are usually committed to the dustbin.

6. There is no robust public interest defence in libel law

We recommend: Strengthen the public interest defence

The recent issue highlighted by Willard Foxton was scandalous in that investigate journalism, a cornerstone of the free press and democracy, was roughshod over by the current libel system. Where there is a genuine public interest there needs to be a level of protection at the first stage. I recommend all to read his story and question how many times this might have happened over the course of the last decade at least.

7. Comment is not free

We recommend: Expand the definition of fair comment

Simon Singh outside the RCJ

Lord Phillips said the defence of fair comment was "one of the most difficult areas of the law of defamation" - it was a law designed in the 19th century to protect critics from writing about art, books etc. Recently, as a result of Simon Singh making his valiant stand, the legacy of his own defence, and seemingly ratified by the Spiller vs Joseph case, is that where a comment is made it must refer to the set of facts upon which it is based. In Simon's case he did this by making reference to scientific evidence, or rather the lack of, but in any event he was a scientist criticising scientific claims with science (and with a great degree of incredulity). The Guardian reported that "The importance of the defence should not be underestimated - it is not only confined to the media, as indeed the facts of the case indicate. In the modern global electronic age, it applies to the blogosphere, phone-in programmes, letters pages, review sections, and editorials, all of which brim with comment on a wide variety of issues. It applies equally to the spoken and to the written word."

Indeed, the evolution of a thread on the internet means we often see facts/pieces of information and opinions that might go unread by a person taking offence to later comments. Therefore some sort of law of "context" might also be useful but this can often, again, involve a protracted battle over the examination of the words complained of.

Going a little further, I would like to see a generic protection be argued for people holding a professional title who are writing in their professional capacity. If Dr X is writing about a scientific study using his professional title then it is right for any complaint to be considered by his professional body rather than the expensive libel courts. Professionals like Simon Singh depend upon their reputation; if people like him write critically about a subject we are likely to think that he is writing about something in the public interest or in the interest of people in his field where if he was wrong he would rightly be called out by someone within the profession (or an interested amateur). If he was caught out writing about someone in a derogatory way (a libellous way even) without a care in the world then his professional reputation would suffer. Under the current libel laws Dr X would have to not only face an assault on his reputation but even if he vindicated himself he could be out of pocket by thousands of pounds. There has to be a better way.

8. The potential cost of defending a libel action is prohibitive

We recommend: Cap base costs and make success fees and 'After the Event' (ATE) insurance premiums non-recoverable


Hardeep Singh is still trying to recover tens of thousands in costs after winning his case. This situation involved a libel tourist and is why the current process is not fit for purpose. My only proposal, thinking quickly about it, would be for a plaintiff to pay a reasonable sum of costs, based on affordability, into the court to cover costs should an action fail on some level. Defendants need to be protected against spurious/vexatious claims.

Hardeep Singh - Libel Survivor... but only just

9. The law does not reflect the arrival of the internet

We recommend: Exempt interactive online services and interactive chat from liability

This is the most interesting campaign statement, in my opinion, because it goes to the heart of how we communicate ideas and thoughts with other like-minded individuals. Many of us who uses forums and comment areas tend to know how they function; it's akin to a live conversation and it tends to be fairly fluid but can quickly go off topic. A recent example was where I was discussing the death of Christopher Hitchens; the conversation started on how Hitch was misogynist and a warmongerer and evolved into an ad hominem attack on another commenter's position on abortion.

No really took many of the insults that seriously. Why would they? It was, by and large, anonymous. There are very few people who use the same user name/ID for all of their accounts easily traceable to a single profile which reveals your name. I am one of those people who uses the same generic username, other than my real name, ("vjohn82"). I think I used "UKfingerpicker" on a guitar forum because they didn't allow numbers in a name (not sure why) but other than that, I'm pretty honest about my intentions, beliefs and comfortable with being open about who I am. I have been criticised for this and even told to protect myself. I see no plausible reason to do this at this time. Perhaps in light of being sued for libel, it might be that warning shot over my bow to protect myself. But as readers will know, I was pretty much anonymous anyway and I offered my information freely because I stand by my words.

The Smith vs ADVFN case above represents a good starting position for this particular campaign point. However, this is not to say that people cannot be libelled, it's just that the level of damages involved with the readership considerations and the audience would surely invoke the Jameel argument on some level and thus be a waste of time. Should any allegations reach a certain level of seriousness, the High Court and all of the associated expense is disproportionate to the amount of damage ever caused (if any). So while I think it is interesting to say that all online interactions should be exempt, I think this should only apply in placing the action in the right arena for vindication.

For example, there are three separate claims processes available in the County Court; the Small Claims Track, the Multi Track and Fast Track. Depending on the value of compensation sought the case will be allocated to a track via a proposal from the parties (via an Allocation Questionnaire) and with the final word from the Judge hearing the matter. A similar process could be used in libel cases with only the most serious cases being sent to the High Court.

10. Not everything deserves a reputation

We recommend: Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood

This is pretty much the current situation which exists for county councils and other public bodies; is there a good reason for a large/medium company to need protection from defamation unless the person/company allegedly libelling them was gaining financially?

I would also argue there is little reason for any company to sue for damages unless there was a financial motivation for a person/company doing the alleged libelling. The burden of proof should be on the company arguing that they have been defamed. If not, they should issue a statement acting as a right of reply. They may do this through a solicitor of course, to give the statement more weight perhaps, but can a hugely expensive trial produce a satisfactory outcome when it dawns that the money spent could have been used on much more worthwhile endeavours?

--------------------

My own libel defence is not over yet so I might well have a different opinion on what further proposals I would like to see put forward. Conversely, I could also change my opinion on some of the above issues depending on the outcome. There really is so much to consider which is why people should inform themselves as much as possible about Libel Reform and freedom of speech in general.

It is not about saying what you want and getting away with it!

It is about a fair and proper process for all parties concerned and to place libel proceedings in the correct context considering the development of the internet which has changed both how people communicate and obtain information.

The current libel laws do not reflect this development which is a major reason why Libel Reform exists.

http://libelreform.org/index.php

*** These opinions are my own and do not necessarily reflect the Libel Reform Campaign's own statement and it should be no way inferred that my views here are endorsed by either the Libel Reform Campaign or supporters ***

Libel Reform: 2012 is the year

It's the New Year with lots of amazing possibilities despite the financial climate providing you are willing to work hard and persevere. Without perseverance we might as all give up and that's not in my nature. My Dad taught me about hard work and I'm not about to start forgetting that now in the midst of my libel defence.

Anyway, lots of libel victims of Christmas past have been throwing their weight behind the Libel Reform campaign. The movement first started with Simon Singh's libel case which ended with him winning thanks to the efforts of Sense About Science, David Allen Green and not forgetting the libel Jedi Master Robert Dougans (who is a Partner at Bryan Cave).

Simon Singh's long fought legal victory

Libel also gained notoriety due to a number of other high profile cases involving bloggers John Gray, Alex Hilton and David Osler.

John Gray, Robert Dougans & Alex Hilton
outside the RCJ

Libel also hit the headlines at the back end of 2011 with The Burzynski Clinic trying to use the favourable English libel laws via the passport route and in the process not only threatening Rhys Morgan with libel, a 17 year old kid, but also using some very unethical methods in the process (using pictures of his house to intimidate him).

I also read today that Willard Foxton who ended up losing a very prestigious position carrying investigative journalism at its very best. Read his horrific story here: http://www.bigbrotherwatch.org.uk/home/2009/10/britains-libel-laws-are-killing-investigative-journalism.html#.TwDtgtRMupP

Investigative journalism is a cornerstone of democracy; we need it more than ever. I wouldn't profess to be at a standard of an investigative journalist but I try to apply similar skills to most of my online activities. I have a good bullshit radar and I am good at research. I do not post things without either researching it meticulously or having an honest belief in what I am writing. Sceptical thought process apply to my own beliefs and writing as much as anyone else. I have had to suffer some painful breaks with friends and family over a number of issues simply because I applied critical thinking to my everyday life. So I'm not a person who simply talks the talk. I will always stand by my principles no matter where that leads.

For info... my libel case is currently ongoing.

Here's Simon Singh on why libel is an unnecessary process, very draining for those sued and why reform is needed:

So PLEASE sign the petition here http://libelreform.org/sign