Tuesday, 26 October 2010

Publish and be damned? Er, not quite

It’s become a regular feature in newspapers. Small boxes of print, often buried towards the back, with someone’s name and the words: ‘An Apology’, usually followed by something along the lines ‘On 5th January 2010 we wrote that the footballer Mr Big Willy had had a three way with prostitutes in a cellar. We now accept that this was not the case and apologise for any distress caused to him and his family.’ Etc, etc.

So, how do these stories get into print in the first place?

It may surprise you (or maybe it won’t) to know that in media law, the lawyer advises the client what the risk is of printing an article. And it’s fair to say that for some media owners, the risk of publishing and the damages they may have to pay, is outweighed by the money they will make from the sales attracted by publishing the story in the first place.

Most journalists, of course, want to avoid any libel cases being brought at all. Over the years I’ve been in countless meetings with lawyers where we’ve gone through all the evidence before us and assessed the risk. Some of the stories I’ve worked on, particularly involving celebrities, but also involving ‘civilians’, particularly crime stories, have been a legal minefield.

Of course the best way to fend off any potential libel action is to get what’s known as a ‘Right to Reply’ before publishing; in magazines and newspapers, that’s why you’ll often see the phrase ‘Miss X was unavailable for comment.’ It’s there to show that the journalist at least tried to prove the allegations before the piece ran. And if you do find yourself with a potential libel action on your hands, try not to panic, and see if you can reach a peaceful resolution as quickly as possible.

So where does that leave us with blogs?

Well, best practice is always going to be a Right to Reply. There seems to be an assumption among some bloggers that you can post any allegations you like about individuals and companies, without having offered the person (or persons, or company) concerned a Right to Reply or contacting them to say ‘this is what I’m going to publish, do you want to say anything in response?’. But unless you’re really, really sure of your facts, this is a very dangerous game to play.

And what you can’t do, of course, unless you have a lot of evidence to prove your allegation, is try to damage an individual’s or a company’s reputation, or attempt to cause a ‘reasonable’ person to think less of them, or attempt to cause loss to their trade or profession, if you only have one side of the story. If you like flying by the seat of your pants, you can publish your blog post, but if the person (or person, or company) named or involved then contacts you to correct statements made in your blog post, you must act swiftly to either correct your original post, remove the original post, or post their corrections in full, if that is what they have asked you to do. (It goes without saying you should always try to seek a resolution, unless you happen to be a lottery winner or a close friend of the family is, for example, a top media lawyer.)

Of course, you may presume that if you live in... let’s say, Germany, it’s impossible for you to be found guilty of libelling someone who lives in... let’s say, France. But that’s not the case.

So, if you do find yourself accused of libel, what should you do? Well, there are defences for libel. You can prove the statement to be true, or it could be fair comment - so long as the opinion is based on true facts. The best solution is always to act quickly to either remove the areas of contention in your post, delete the post, or post an apology.

The first rule of publishing any allegation has to be: can I prove it? So you can blog for example that so and so committed a robbery, if they’ve been found guilty of that offence. But what you can’t blog is so and so committed a robbery and therefore they must also be a murderer.

You also have to be careful about what you say to other people online, because if you make comments about someone in a chatroom or forum it could be slander. And you have to be aware that comments left on your blog can be defamatory.

Worst case scenario: If you malign an individual to a company they work with in an attempt to cause them loss of earnings, by letter or by email or by phone call; if you then make your allegations on the phone or by email to someone else; and that someone then blogs those allegations, without following the best practice above; and if someone else then repeats the allegations, in comments, or on a forum, or on a blog post of their own – you could all find yourselves being sued for defamation.

If you link to defamatory material from your blog or website, that could get you in a whole heap of trouble, too (so always be sure about your sources).

And never be tempted to publish something about someone which you're not sure is entirely correct simply because you don't like them, particularly if you know your post could harm their financial or business interests. This could give rise to a claim of malicious falsehood. This is when you publish a statement without caring whether it's false or not. Malicious falsehood is harder to prove than defamation, as the complainant has to prove financial loss has been caused or is likely to have been caused, but I think most of us would agree it would be daft to take that risk to settle a score.

To sum up, your honour, if you try to suggest that someone with a good reputation has done something wrong with no actual proof that they have, that’s libel. The onus, should it go to court, is on you to prove your allegations, so you must make sure of your facts before publishing; suspicion, someone’s ‘word’, or the fact that you really don’t like the person you’re writing about, will not stand up under scrutiny if you make false allegations against them.

Finally, if you post on a forum a comment saying you wish someone would die in a bizarre accident involving a forklift truck , and lots of people see that comment, and a few weeks later the person you were speaking about does indeed die in a bizarre accident involving a forklift truck, well, things could go very badly indeed.

Monday, 25 October 2010

The stroke that nearly floored me

I’m at work, of course. I’ve been working ridiculously long days, trying to help get a magazine out. Sometimes I’ve started work at 8am and got home at midnight, without a proper break. Sometimes I’ve been too busy to get up out of my seat.
On this particular day, four years ago, I’m sitting at my desk, as usual, and someone asks me a question. It’s a question I know is going to create another set of problems but I’m trying to solve it. I try to pick up the flatplan in front of me, but I can’t seem to make my right hand work.
‘There’s something wrong with my right hand,’ I say to my Editor. ‘You’re not making any sense,’ she says. ‘Are you alright?’ Later she tells me that when I thought I was saying ‘There’s something wrong with my right hand,’ what I was actually saying was ‘blughiehoghgagoihbjghoighioajgh.’ Or words to that effect.
Someone brings me a glass of water and I try to pick it up with my left hand but I can’t. My arm won’t move. So now I have no movement in either of my arms or hands.
I’m taken to hospital. For a few brief moments I wonder if this it, and I want to call home, but I can't speak properly to tell anyone.
It takes a while for my speech to return. Gradually I’m able to use my left hand and arm again. The right takes a little longer.
It’s a hard way to learn you can’t work long, exhaustive hours and not take a break, that trying to make a living isn't the be all and end all if you don't have a life left to live.
But it’s a lesson you never forget.

Sunday, 24 October 2010

Two sides to every story

It’s not all beer and skittles, this online life. One of the most difficult things to come to terms with, I think, is that if you raise your head above the parapet, people think they can publish what they like about you.

For legal reasons, there’s only so much I can say on this for the time being.

But for those of you who believe in giving people the benefit of the doubt until they have heard both sides of an argument, I hope you'll take the time to read what I can tell you.

1. Sometimes, earlier in the year, you hear things about someone, who you like and think you get on with, and you ignore the things you hear, because you try to take people at face value. You think it’s unfair that person seems to be getting such a hard time, from so many people, when all they’ve ever been is nice to you. But a little bit later you hear more things, from different people, and you think ‘uh oh’. And then you hear even more things, from even more people, and you start to wonder if you’ve been naive. And on it goes.
2. Sometimes you discover that the person in question is indeed not the person you thought they were, when out of the blue a bit of banter turns quite unpleasant and you are on the receiving end of their vitriol.
3. Sometimes you and that person stop communicating for a little while and you wonder if it’s a good idea to be involved in the event they’re organising, but you’re aware your name is connected to the event and people have emailed you saying how much they’re looking forward to meeting you and you wonder what to do for the best, because the last thing you want to do is let anyone down.
4. Sometimes you think ‘it’ll blow over’, and a few weeks later you go away, thinking you’ll sort it all out when you’re back, and you have a lovely time and make new and really quite fabulous friends.
5. Sometimes you return from your lovely break to discover your dog has had a bad accident and needs £850 worth of emergency surgery and meanwhile the previous nonsense hasn’t blown over, in fact things have taken a decidedly alarming and increasingly bizarre turn.
6. Sometimes you think after a heated phone call and email exchange that you and the person concerned have sorted things out and are moving on, maybe not as friends but at least as colleagues, which is good, because you have so much to deal with right now.
7. Sometimes you discover the next day that the person concerned, despite sending you an apology in writing the previous day, had done something behind your back a few days earlier which you can’t quite believe but which makes you very cross because it could damage your livelihood, which is how you pay your bills (including the vet’s bill).
8. Sometimes you feel so overwhelmed by all this and the things going on in your personal life, too, that you have a rant on someone’s blog.
9. Sometimes that blog owner tells you to ‘go f*** yourself.’
10. Sometimes you feel that you’ve had enough of all this nonsense, and you know deep down you can no longer be part of an event you really wanted to be part of, but still you don’t want to let anyone down.
11. Sometimes more people, who you have never met, perhaps sensing you might be vulnerable, decide to have a go.
12. Sometimes you resign from something you were going to be a part of but you decide not to make a big song and dance about it because you don’t want to spoil it for anyone else, so you write a very polite email to all the organisers giving them your best wishes for the event and you feel relieved and hope people will understand.
13. Sometimes you go to another big event and you meet lots of lovely people and you think how lucky you are to know them and they restore your faith.
14. Sometimes you feel attacked, and you lash out on twitter, and that’s your right, because you are being honest and you have nothing to hide.
15. Sometimes you discover another blogger who apparently feels she can take the moral high ground has set up not one but two fake blogs and you start to feel a bit sorry for them.
16. Sometimes you return home on a Saturday afternoon to discover someone you have never met but who a month before had emailed you asking for the truth about what happened has blogged about you and you read comments written by people who don’t know you and have never met you, and never will, but for some reason have decided they don’t like you and will use any opportunity to have a go without ever trying to understand your side of the story, because they just don’t care, and you think... ‘meh’.
17. Sometimes you think why did the dog chew that wire, apparently it’s really important for setting up the Wii.
18. Sometimes you think that the last thing you want to see is Ann Widdecombe in a pair of purple hotpants.
19. Sometimes you think it’s a scandal what the Tories are doing to the NHS.
20. Sometimes you think: real life is more important.

Now this really is a scandal

For those of us who have known people with cancer, we know all too well that time is of the essence when you're trying to fight this awful disease.
Now the Government scrapped plans to speed up tests for the disease.
This is the same Government, of course, who came into office with promises of improving treatment for cancer patients.
As Ciaran Devane, chief exec at Macmillan Cancer Support puts it, 'Earlier diagnosis makes a huge difference to saving lives.'
But it appears the Government have done a huge U-turn.
I really wish I could say I was surprised.