British libel law is notorious for its ability to silence critics of wealthy—and often shady—public figures. Premised on the notion that a published statement has opened a person to scorn, derision, social alienation, or caused him to lose face with "right-thinking" individuals, it has come to mean that almost everyone on the planet has a case and the nation is a hotbed for libel tourism —Craig Unger's House of Bush, House of Saud had difficulty being published in the United Kingdom because of lawsuit fears. The law was revised slightly in 2006, but Fleet Street has been reluctant to challenge libel threats, usually issuing abject corrections and apologies instead. The process is costly and, if a newspaper loses, it bears the responsibility for paying the plaintiff's legal fees.
One would think, then, that bloggers with neither the deep pockets nor the lawyers of their mainstream media compatriots would be even less willing to fight accusations of libel. But, as two recent cases point out, they might be ideally suited to undermining the institution that precipitated the downfall of Oscar Wilde.
Recently, a British journalist and an Uzbek-Russian billionaire have both threatened to sue bloggers for writing unflattering things about them. Single posts or whole blogs have vanished as a result of e-mails sent from lawyers, prompting solidarity campaigns on behalf of the silenced. Word gets around fast on the Web, and the would-be litigants have now paid the much higher price of infamy for their prickly, bullying efforts. The British blogosphere just might have pulled off its greatest feat—withstanding the weight of costly civil litigation.
ISPs are protected not only by the First Amendment but also Section 230 of the Communications Decency Act, which states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Britain has yet to pass similar legislation, but that hasn't kept bloggers—if not their ISPs—from standing up to the threats of Johann Hari and Alisher Usmanov.
Hari is a British journalist who formerly supported the war in Iraq but has lately changed his tune. Last summer he published a controversial review of Nick Cohen's polemic What's Left: How Liberals Lost Their Way in Dissent magazine. Cohen, a fellow liberal journalist, argued that the British left has lately devolved into a handmaid of reaction, whether by doing Saddam Hussein's PR work for him, or by rationalizing jihadism as "anti-imperialism."
Hari expanded his critique for the Independent. Both versions were worked over for factual and interpretive errors by British bloggers like Norman Geras and Oliver Kamm, two prominent advocates of the Euston Manifesto, a year-old doctrine co-authored by Geras and Cohen that aims to reassert classical leftist principles. Chief among Hari's whoppers in the Independent piece was his claim that the Euston Manifesto was avowedly pro-war despite its clear language to the contrary (it took no position on regime change), and the fact that Hari's own editor at Dissent, Michael Walzer, was against the war yet still signed the manifesto.
What caused Hari to lawyer up, however, was this sentence, written by the pseudonymous "David T" at Harry's Place, a well-trafficked social democratic blog: "[I]f you aspire to be a serious academic commentator or non-tabloid journalist, a reputation for making things up should spell career death." Without the resources to combat a libel charge, David simply removed his post. (The Internet being the Internet, the original is still available as a screen capture.)
Since then, David hasn't commented further on the affair. But everyone else has. The satiric biweekly Private Eye devoted one of its "Hackwatch" columns to Hari, citing some of the nastier stuff said about him in the wake of his libel threat, most notably at Drink-Soaked Trotskyite Popinjays for War. (Disclosure: I contribute to it occasionally.) Now Hari has gone from being a critic unhappy about a meticulous and unflattering fact-checking to being held up as an opponent of free speech.
The next case is more telling for the breadth of its reach and the greater uproar it entrained. It involves Uzbek-Russian billionaire Alisher Usmanov, No. 142 on Forbes' list of the world's richest people, who has acquired a stake in British soccer team Arsenal. Usmanov is one shady character: In the 1980s he was jailed for a variety of crimes, including fraud, but he was granted a full pardon—and reclassified as a Soviet political prisoner—upon Mikhail Gorbachev's assumption of the premiership.
It turns out a former British ambassador to Uzbekistan is a prominent blogger named Craig Murray, who knows a little too much about the country and its émigré oligarchs. On Sept. 2, Murray wrote an unflattering post about Usmanov after the latter purchased a minority stake in Arsenal and declared his intent of increasing his share to 25 percent. Usmanov then hired the powerful British law firm Schillings—which specializes in new media and defamatory law, and even boasts a how-to guide on its Web site for handling the "Internet attacker"—to threaten not Murray directly but rather his ISP, Fasthosts. After a series of complaints and angry letters, Fasthosts shut down Murray's site in addition to several others, one of whom linked to Murray's post.
Well, just you try Googling "Alisher Usmanov" today. Within hours of the takedown, a phalanx of bloggers assembled to show solidarity with the affected bloggers. Chicken Yoghurt has a frequently updated "public service announcement," including a list of blogs covering the story. Tim Ireland, author of one of the yanked Fasthosts sites, re-created his blog as an "All Usmanov, All the Time" portal featuring a meticulous timeline of events and reprinted legal correspondence. (Perhaps unsurprisingly, David T at Harry's Place took this opportunity to comment on blogging Davids vs. the legal Goliaths.) There are even banners and "blog buttons" available elsewhere that make Usmanov look like a robber baron (to put it charitably). One Scottish blogger, Mr. Eugenides, phrased it best:
I knew nothing about Alisher Usmanov this time yesterday; a rich businessman trying to increase his stake in Arsenal. So what? They're ten a penny, if you'll pardon the phrase.
Today, I know that he's a [snip!—Mr E lawyers], a fat [snip!—Mr E lawyers] who was imprisoned for [snip!—Mr E lawyers] and even, it is whispered among his fellow Uzbeks, the perpetrator of a particularly vicious [snip!—Mr E lawyers]. And this is all directly because of his decision to legal up, and his lawyers' decision to bring out the elephant guns.
The two episodes prove there's another law that plutocrats should heed before filing complaints: the law of unintended consequences. David Warner at AOL Fanhouse calls it the "Streisand Effect": In 2003, Barbra Streisand sued a photographer who had posted an aerial photo of her California house on the Internet as part of a study of coastline erosion (Babs' joint was one of 12,000). Yet Streisand's lawsuit generated exactly the kind of attention she looked to curtail, and within days, her beachfront real estate had multiple browser listings.
In the age of Web 2.0, spurned, libel-threatening parties are begging to attract the attention they are trying so hard to avoid. Public figures with hefty retainer fees should take a lesson: In cyberspace, everyone can hear you sue.