[Nottingham] a little more libel and 'allegedly' ... long again (sorry)

[Matt Hurst]

At 13:38 11/01/2004, Matthew Sackman wrote:

>"Logically, open source will result in a software industry that is not 
>just without significant profits but without the profit motive" is not a 
>(provably) logical conclusion, nor even one supported by the rest of the 
>article. That may, in fact, be libelous. His preceding comment is, of 
>course, his own point of view only.

It's not libellous. At least, unless you can convince a jury it's untrue 
and will damage a specific company, it's not, and I can't see how you could.

Now, 'allegedly'.

The point of libel law in the UK (it's different in the US) is to stop 
people saying damaging untrue things about people and companies. Repeating 
a libel is at least as serious as saying it in the first place as far as 
the courts are concerned - you're still unwarrantedly damaging a 
reputation, even if you're saying 'someone else told me....'. Putting 
'allegedly' in front of an allegation when you do so is no defence (except 
in very limited circumstances, see below).

The exception involves a concept called 'privilege' which applies to the 
reporting of various situations.

(This is going to get complicated so give up now unless you're *really* 
interested. The same health warning as before applies.... I'm not a lawyer, 
just a hack.)

The 'allegedly' will only apply when you're referring to something said in 
open court, as in the prosecutor saying 'the defendant put four copies of 
Linux Format in his bag deliberately and left the shop without paying for 
them'. The defence might say 'they fell into his bag and he didn't 
realise', and the magistrates acquit him. In reporting this in the 
newspaper, you'd say 'The prosecution alleged that Mr Torvalds deliberately 
put four copies of Linux Format in his bag and left the shop without paying 
for them. Mr Torvals said they fell into his bag and he hadn't realised he 
had them with him when he left the shop. He was found not guilty.'

Under normal circumstances, printing 'The prosecution alleged that Mr 
Torvalds deliberately put four copies of Linux Format in his bag' would be 
libellous, as he's been acquitted and legally, Mr Torvalds, isn't a thief. 
In legal terms, saying he denied it won't necessarily help you get off. But 
if this was the case for court reporting, it would mean the newspapers 
couldn't report a court case without getting sued, which is against the 
interests of open justice. So when you're talking about allegations made in 
court, libel doesn't apply. This is called 'privilege', as you're in a 
privileged position.

'Privilege' applies to courts, mostly, but also Parliament, and in a more 
limited way to council meetings and other offical public meetings.  It 
means that you can't be sued for reporting an allegation made in those 
arenas, even if the allegation is untrue and damaging - otherwise a 
newspaper reporting a court case in which a defendant was acquitted would 
mean the newspaper could be sued for libel, which wouldn't be in the 
interests of open justice.  Parliament and councils get it because they're 
official legal bodies, and people addressing them are assumed to be 
responsible.

BUT - terms and conditions apply to keeping your 'privileged' position, as 
a publisher, the main three being that your reports must be 'fair, accurate 
and contemporaneous'. If one of those isn't the case, then you lose 
privilege and can be sued as normal. Contemporaneous means it must be in 
the next available publication or broadcast, to ensure 'privilege' is only 
used for reporting news, not just generally harassing someone. Fair means 
you report both sides' case, and reflect what actually happened in court, 
not just a highly vindictive or favourable one sided version. Accurate 
means you get your facts of what was said in court (as opposed to what 
happened, which is probably under dispute anyway) right.

To apply this to 'allegedly', the word is used to ensure that Hislop and 
HIGNFY, for instance, keep their privilege when talking about news from 
courts and so can't be sued for libel if something said in court is untrue. 
Often the stories from that week will be  based on what the prosecution 
alleges in a particular court case, and putting 'allegedly' in front of 
something alleged (rather than proven or admitted) means you're being fair, 
accurate, and contemporaneous, you keep 'privilege', and the BBC lawyers 
are happy. Now it's become a common misconception that if you say 
'allegedly', you can't be sued, misused for comic purposes by people who 
haven't Hislop's painfully acquired knowledge of the law of libel.