[Nottingham] a little more libel and 'allegedly' ... long again
matthurst at fastmail.fm
Sun Jan 11 15:14:48 GMT 2004
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.
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
'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
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.
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