The latest international cause celebre about journalists is Maria Ressa in the Philippines. She has been convicted of “cyberlibel” and apparently this is a gross violation of civil rights, it’s tantamount to the suppression of democracy.
But the thing is she would have been convicted under English libel law too.
This is not to consider the actual libel, whatever it was at all. Even, whether it was libel or not.
Instead, going by the reasoning being given in this defence of Ressa she would have been convicted under that English libel law.
To reach her verdict, the judge had to accept the prosecution’s breathtakingly thin arguments. First, that the website had violated the cyberlibel law, even though the story was published four months before the law even existed. The judge agreed that Rappler had “republished” the story, when it corrected a spelling error in 2014, thus making it subject to the law. The judge also accepted the prosecution’s theory of “continuous publication”, to get around the fact that the statute of limitations on libel in the Philippines is just one year.
In the words of the UK and Ireland’s National Union of Journalists, it was a “shamelessly manipulated charge”, and an “act of persecution by a bully government”.
The NUJ really should know better.
Consider the jurisdictional issue in English libel law. Something published in the US, on a US server, by Americans, can still be libel in England. What matters is where the piece is read, not where it is written. There is actually an Australian case (sure, different legal system but same underlying Common Law) where Dow Jones had to cough up for a piece published in the US, on US servers, but read in Oz. That the one known reader in Oz was the bloke who claimed he’d been libelled is just an amusement of the case.
This has long been true too. Books published in foreign do not constitute – cannot – libel in England. But if a copy of that book published in foreign makes it into England then that can potentially constitute libel under English law.
Online publication goes a step further though. The construction is that before the reader reads the piece there is one version of the piece on some server somewhere. As the reader is reading the piece there is that one copy on the server and also one copy in the browser (plus, possibly, intermediate pieces in cache and so on). That constitutes publication. Not just existence, but publication. And that publication is taking place where the browser is, in the jurisdiction of the reader.
So, someone reads a foreign piece in England that constitutes publication in England.
This is not constrained to libel either. This is how they get people for kiddie fiddling piccies. Mere viewing of, even possession of, is a rather lesser crime than publication of. And yet everyone gets charged with publication as the act of calling it up – even off a hard drive – into a browser is publication.
That’s how place works and it doesn’t take a genius of a prosecution lawyer to see that the same will be true of time. If I am able – say and just as an example – to call up the Scottish newspaper report on popular beat combo singer and hubbie enjoying olive oil threesomes and read it in England it would be in breach of that don’t tell anyone about it injunction on English publication. And given that we’ve already defined my reading it as the place of publication then the time of publication is when I read it.
All of which leads us to exactly the same outcome as that Philippine case. Or, at least, it does so given the defence of Maria Ressa being offered in The Guardian.
Again, note, this is nothing at all to do with what was actually said, nor whether that was libel or not. Rather, the specific defence on offer here doesn’t wor under English law either. Quite why it’s an outrage that it doesn’t under Philippine is therefore an unknown. Perhaps it’s just the institutional racism of The Guardian itself? You know, how dare slanty eyed foreigners do stuff the same way we white folk do?