Defamation and anonymous blogging

Has anyone else ever put comments up in online forums, or in response to newspaper stories or blog posts? If you’re reading this post, I suspect that you might have been tempted to do so. You know the drill then. You are required to enter your name in a box headed “Name”, and then you are required to enter an e-mail address. Usually, there is a disclaimer beside the box, stating “will not be published” or “for verification purposes only” or something of the sort. Perhaps you have used a psuedonym, feeling safe in the knowledge that no one will know who you are. Given a recent case in the UK, perhaps you need to mind what you say.

In Sheffield Wednesday Football Club Inc v Hargreaves [2007] EWHC 2375 (QB), a football club, Sheffield Wednesday, and members of its board of directors sued the owner and operator of a fan website, www.owlstalk.co.uk, for defamation. The plaintiffs sought to require the website to disclose the e-mail addresses of contributors to a fan chat forum whose contributions were said to be defamatory.

At the outset, taking off my lawyer’s wig and adopting a practical point of view, it seems to me that if one’s fans are already offside, then suing those who are critical of your management isn’t going to increase your popularity with the fan base… Just a thought.

In any case, the comments were made by some 11 anonymous contributors, all of whom were fans of Sheffield Wednesday. All of the comments were scathing about the way in which the plaintiff chairmen/directors and others had managed the club.

Richard Parkes QC said at the outset at [9]:

…in a case where the proposed order will result in the identification of website users who expected their identities to be kept hidden, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court.

Ultimately, his Honour decided that the defendant should be required to divulge the details of only those contributors whose comments were of the most serious nature (at [17] – [18]):

It seems to me that some of the postings…border on the trivial, and I do not think that it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory or little more than abusive or likely to be understood as jokes. That, it seems to me, would be disproportionate and unjustifiably intrusive. …

The postings which I regard as more serious are those which may reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour on the part of the Claimants. In the case of those postings, the Claimants’ entitlement to take action to protect their right to reputation outweighs, in my judgment, the right of the authors to maintain their anonymity and their right to express themselves freely, and I take into account in this context the restrictions on the use of defamatory language which the rules of the Defendant’s bulletin board impose, restrictions which in the case of these postings appear to have been breached. I take into account also that the Defendant does not appear to have had any policy of confidentiality for the benefit of his users.

Having read the exerpts of the comments in the judgment itself, the comments in fact seemed pretty tame compared to some things I’ve read in the blogosphere. I could imagine the comments being made by disgruntled fans in the pub after the match, and indeed, I think this is very much the way in which the fans themselves saw it; except that they had put the comments in writing on a public forum, which gives the comments a very different status.

People often treat e-mail and online forum comments as if they are “verbal” rather than “written”. But what could just be a disgruntled whinge may come across as something altogether more serious when put in writing. I fell into this trap once myself with e-mail, and vowed never again to communicate problems via e-mail, as they lack “tone”, and may come over so much more harshly as a result. 

Furthermore, it’s easy to be nasty if you are just typing a comment and don’t have to look someone in the eye when you make it. I once dealt with a client who was pleasant if you saw him in person, but typed vicious and unreasonable e-mails asking you to crush the other side and give no mercy, even if the dispute was partly of his own making. My tactic was always to ring him back about the e-mail and get him to soften the instructions thereby. I’ve never found a “take-no-prisoners” approach to be effective. Softly, softly, catchee monkey…and go in for the killer punch if necessary at the end.

It’s even easier to be vicious if you are anonymous, because if you want to make up a sufficiently obscure psuedonym, even your own mother might not realise you made the comment, so you don’t have to take responsibility for it. Although I write under a psuedonym on this very blog, I always write as though I was writing under my own name. I’m sure it’s easy enough to work out my real identity if anyone really wanted to do so.

The lesson for us all is to be very careful with what we say. Would we be embarrassed to own up to it? Is what we are saying truthful? It seems that it was important in this case that (a) there was no confidentiality policy in place to protect the details of contributors and (b) there was a policy that abusive/defamatory comments should not be made. At the very least, those who run internet forums and the like will have to revise their confidentiality policies if they wish to protect the details of contributors.

Any comments, of course, will be treated STRICTLY CONFIDENTIALLY (just for the record, in case any judges out there are reading this blog).

How can they do it?

Jane from Diversion Cubed was wondering how on earth people who had sworn the Hippocratic oath to heal other human beings could allegedly become involved with suicide bombing plots. I can’t fathom it myself. How can you work all day trying to heal people and help people, and then wish to wreak death and injury on innocent civilians?

In that context, I found this article by Shiv Malik on the London 7/7 bombers very interesting (hat tip to Larvatus Prodeo). Malik spoke with the family of bomber Mohamed Sidique Khan and others who lived in Beeston, Leeds. He found that the impetus to become radical is more complicated than one would think:

Khan may have felt indignant about western foreign policy, as many anti-war campaigners do, but that wasn’t the reason he led a cell of young men to kill themselves and 52 London commuters. At the heart of this tragedy is a conflict between the first and subsequent generations of British Pakistanis—with many young people using Islamism as a kind of liberation theology to assert their right to choose how to live. It is a conflict between tradition and individuality, culture and religion, tribalism and universalism, passivity and action.

When it is stated like this, the problem of Islamic extremism looks depressingly intractable. The government’s first reaction following 7/7 was to consult with a wide range of Muslim opinion, including the Muslim Council of Britain (MCB) and similar bodies. The government now argues that the MCB and some of its affiliates are as much part of the problem as of the solution, and the new initiatives to tackle radicalism stress the promotion of British values at a grassroots level and working more closely with the few liberal modernisers in Britain’s Muslim community. But maybe all that we can do now is remain vigilant and wait for the tide in the battle for Islam’s soul to turn in the west’s favour.

Malik explores the fact that many first-generation Pakistanis in Britain have a very traditional approach to life – one in which Islam is important, but so too are tribal values. It is expected, for example, that young Pakistanis will marry according to their parents’ wishes, often to a cousin or relative within the larger tribe. Radical Islamism offers an escape from arranged marriages. Malik explains:

So while traditionalist mosques carry on recruiting imams from back home, keep their sermons in Urdu and other Asian languages and neglect to publish material to engage new members, the Wahhabis and the Islamists give their sermons in English and take their recruitment on to the streets of Pakistani or Bangladeshi ghettos such as Beeston Hill. They have also encouraged the schooling of British-born imams, have learned to use the internet and have generally come to understand what makes the second generation tick. The Wahhabis and Islamists win new members by contrasting their galvanising message of world Islamic justice with the inactivity and irrationality of the first-generation traditionalists. (Among those who turn to violence, such as Khan, their beliefs are often a mix of fundamentalism and Islamism.) And by arguing that the traditionalists—with their saint worship, mysticism and forced marriages—have been corrupted by weakness and Hinduism, they provide useful arguments to those Pakistani and Bangladeshi youths who want to cling on to Islam but throw off their parents’ constraints.

Part of what pushed Khan towards fundamentalist Islamism was his desire to marry for love, not to marry the bride whom his parents had arranged for him.

Furthermore, in poor areas such as Beeston Hill in Leeds (where three of the four 7/7 bombers lived) there was an increasing problem with drug use. Traditional parents had no response for this problem. It was not within their ken. Malik continues:

Ali told me that the older generation didn’t know how to deal with the drug problem. They were largely illiterate and didn’t know the system, so they would sooner move out than try to fight the dealers. The only people who seemed to do anything about the drug-taking were a group of second-generation Pakistanis called the “Mullah boys.” This was a fluid group of 15 to 20 members that formed in the mid-1990s, initially as a response to the drugs issue. Mohammad Sidique Khan was a leading member. Ali told me that on several occasions, the group kidnapped young Pakistani drug addicts and, with the consent of their families, held them in a flat near the Wahhabi-inclined mosque on Stratford Street—and forcibly cleansed them of their drug habits.

What we learned from Ali was later corroborated by an ex-drug user called Asim Suleman. He had been cold-turkeyed by the Mullah boys in 1996, and Sidique Khan, Khan’s friend Naveed Fiaz and Tafazal Mohammed, Khan’s line manager in his youth worker job, had asked Suleman back to help with another round in 2001. Following 9/11, the Mullah boys had become increasingly religious. Initially, this new-found godliness was welcomed by the older generation in Beeston—until the group began marrying people of their choice.

I had wondered how men who had grown up in the UK could do this. Malik’s analysis makes sense. The second generation did not want to live like their parents. They wanted to marry whom they wanted, they wanted to escape narrow tribal restrictions and they wanted to do something constructive about social problems in their community, such as drug use. But they did not feel part of the broader British community either. There were two paths for young disaffected men – either to embrace violence and drug use, or to embrace radical Islamism. The latter seemed more honourable. It offered an escape to the conundrum of trying to fit in with traditional Pakistani or English social norms – reject both, embrace Islam, then you’ll feel part of society. Paradoxically, the radical Islamist movement is in some ways more akin to a radical political group from the West than it is to traditional Islam.

I’m sure it’s no coincidence that the background of radical Sydney cleric Sheikh Feiz Mohammed resonates with this analysis. Sheikh Feiz was a street kid who drank and took drugs in his youth. He saw radical Islam as the pathway out of despair.

A more nuanced understanding of what drives these young men might help a more nuanced response to the issue. An analysis which simply concludes that Islam is evil or that the West is corrupt and decadent misses the mark. As always, it’s more complicated than that. Radical Islamism is a child of a terrible congruence of both Western and Islamic values.

Update

An interesting piece in The Guardian by Hassan Butt, a former member of the British Jihadi network.

British sex ed not up to par

I see that a recent survey by the Family Planning Association has established that there is widespread ignorance in Britain about contraception and “the facts of life”. This is interesting. As I’ve disclosed before, I attended an English secondary school after spending a couple of years at an Australian secondary school. When I arrived at my English secondary school, I found that I was behind everyone else by a long way…except in one very specific subject.

That subject was sex education. At my Australian secondary school, we had to learn sex ed in Science, in Home Economics and in some subject called “Personal Development” (or some silly name). We had to put condoms on bananas and study explicit diagrams. We had read a terrible text dating from the early 1970s, which featured a naked man who was so abundantly hairy (on his head, face and body) that no genitalia could be discerned. He looked like a gorilla. (I wonder if the school had chosen it purposely? It certainly put me off the idea of the naked male body for a while.) I knew all about the mechanics of the facts of life: but the closest I had come to men (well, those who were not related to me) was to sit next to a few examples of the species on the bus to school. I think you could safely describe me as a “late bloomer”.

Anyway, when I started at my English school, most of the subjects we studied were a mystery to me. I was very much behind everyone else. I had not read Shakespeare before, nor did I know what Avagadro’s number and the mole concept meant, nor did I have any idea about matrices. In combination with my indecipherable accent, I believe that this led the school to believe I was mentally retarded in some way for a few weeks or even months.

Then we had a test about sex education. I didn’t even have to study! Suffice to say, I topped the class. In fact, from recollection, I think I got 100%. Afterwards, I was astonished by the ignorance of many of my class members. Some girls confessed to me afterwards that their parents had never spoken to them about the facts of life, and that they had learned everything they knew from Girlfriend and Just 17. The questions in these magazines had to be seen to be believed. “Can I get pregnant from oral sex?” read one question. They displayed a fundamental ignorance about contraception and matters sexual in general.

Despite this, sexual activity amongst my class members was widespread (of course, any evidence of this is apocryphal only). One classmate (she must have been about 14 or 15 years old) boasted of her nights of passion with a German ski instructor while on holiday. In hindsight, this story takes on an unpleasant cast: if it was true, I wonder if the ski instructor had a thing for little girls? Ugh. Another girl was notorious for having contracted a number of venereal diseases (I don’t know whether this was true; I sincerely hope not for her sake). It has to be said that some members of my Biology class knew more about contraception than the teacher did, and one particular classmate ended up practically taking the class on the subject, relating her experience with each particular method of contraception, including the morning-after pill (she didn’t recommend it).

At the time, I found the Australian way of ramming sex education down your throat at every available moment annoying (as far as I was concerned at that age, the whole thing just sounded gross). But it is certainly better than the English approach, where many of my schoolmates had little idea, despite the fact that a number of them appeared to be highly sexualised at a young age. Or, like my friend with the morning-after pill, they had ended up learning about sex and contraception through bitter experience. So the results of the Family Planning Association study are no surprise to me whatsoever. They confirm my own experience as a school girl in England. Although I have a few gripes about the inadequacies of the Victorian school curriculum when I was a teenager (but that’s another post), I cannot fault my Australian high school at all in regard to sex education. I am glad that we have a more pragmatic approach to this matter in Australia.

Update

Despite better sex education in Australia, young people still leave themselves at risk of sexually transmitted disease – see this report. I wonder if this comes from the psychological attitude that disasters happen to “other people” – why else would people still undertake risky activity such as smoking, driving fast, taking illicit drugs etc etc, when we’re told over and over again that we can harm ourselves and others by these things?

Just goes to show that no matter how much you educate people, they’ll still put themselves at risk. However, at least if they have been educated, they are making an informed choice to put themselves at risk. Although it’s not ideal, it’s better than an uninformed or ignorant choice, which is no choice at all!

First remove the beam in your own eye…

There’s not much in the news to cheer one up these days. However, I guess even a bit of serious irritation is a change from down right depressing. What could have irritated me so?

According to an article in The Age, Hannah Pool from the UK’s Evening Standard has decided after a stay of some few days in Sydney five years ago that “Sydney [is] racist, sexist and deeply backward.” She further says that Australia is homogenous and its national mood is smug. She backs up this view by citing the recent anti-Semitic comments by Mel Gibson and the anti-Muslim comment by Dean Jones which have been widely reported in world-wide news. Well, obviously she’s done some really deep research there.

This kind of attitude really gets my goat. In every country and in every city there are ignorant people who are afraid of difference. I was wandering around in a city in Japan when the Japanese equivalent of the One Nation party drove past in a car with a megaphone, booming out slogans against gaijin and their filthy excesses. Immediately after they had passed, a man came up to me to apologise, embarrassed that I had heard such opinions. I told him that every county has stupid people like that, and I certainly wasn’t going to draw any negative conclusions about Japan from the incident.

I have lived for a number of years in England, and was constantly having to face the accusation that because I was Australian, I was a racist. One person expressed this opinion, and then a day later told me I shouldn’t go to the off-licence down the road because it was run by a “Paki” (no irony or self-awareness there at all).

Another girl accused me: “You do horrible things to Aborigines in Australia!” I said that the history there was certainly not great, but on a personal level, I had never done a horrible thing to an indigenous person. I then explained that part of the problem was that colonial Australia got its attitudes straight out of Britain, so essentially, Australian racism was just a reflection of British racism. I then asked her what she had to say about Maralinga.
“What?” she asked. “What’s that?”
“You know, where the Poms tested nuclear bombs on Aboriginal traditional lands, what about that?” I asked.
“I’ve never heard of that; I don’t think it happened,” was the mature response. Score one to the Legal Eagle.

Actually, from what I observed, the level of racism in England was pretty much the same as here. I saw anti-Semitism, anti-Indian and Pakistani sentiment, anti-Asian sentiment, anti-Scottish/Welsh/Irish sentiment…you name it, I saw it. But I don’t conclude from that that all English are racist, or that England is a racist country. Far from it. I take people as I find them, and don’t make gross generalisations about them just because they come from a certain country or background. Isn’t that what tolerance is all about? This silly journalist has just proven that she’s the kind of person who draws a generalisation about a nation of people from a brief interaction and two newspaper articles. Hang on a minute…isn’t that racist?