For those unfamiliar with Alisher Usmanov, he is a Soviet era criminal (and I do not mean a dissident) and multi-gazillionare oligarch who is trying to ‘do an Abramovich’ and buy English football club Arsenal. More to the point he is also the man responsible for taking Tim Ireland’s UK based Bloggerheads off-line for pointing out his criminal background (and thereby also taking down Boris Johnson’s blog as ‘collateral damage’ as he was managed by Bloggerheads).
I must confess that I am a couple days late to this fight for the inexcusable reason that I simply cannot abide Tim Ireland, but in truth that has nothing to do with the outrageousness of some jumped up plutocrat throwing his weight around like this. However much I might dislike the notion I am forced to support Tim Ireland unequivocally.
As Mr. Eugenides aptly puts it:
And let’s be clear on this point; these blogs are down not because Usmanov has been libelled, but because he says he’s been libelled, and has a room full of paid monkeys sitting at typewriters firing off threatening letters to that effect.
I don’t give a shit about this character, or Arsenal FC (no offence to any Gooners out there); nor do I share all or even most of Tim Ireland or Craig Murray’s politics. But that’s far from the point. If you can be silenced for calling a businessman a crook, then you can be silenced for calling a politician a crook, too. Then it’s everyone’s problem.
It is for reasons like this that Samizdata is hosted in the USA, where I have no doubt whatsoever that should the likes of Schillings, Alisher Usmanov’s solicitors, approach my hosting company with a demand they pull the plug because I said something mean about some porcine thug-in-a-suit, they would be calmly invited to go get a US court order requiring them to take the site down (good luck with that) and until they do, they should please feel free to go fuck themselves.
The First Amendment to the US Constitution is not the source of any right, it is just a legal tool used by Americans in America to secure the natural right all people have to express themselves. But in this networked world we have, it actually has the unlooked for effect of extending a significant degree of that protection to other people across the world who write from foreign keyboards about foreign things for foreign audiences, hosted on a server in the USA. I find that quite interesting.
I was wondering when you were going to stick your oar in the water on this one! And of course the actions of Usmanov’s lawyers have had the opposite effect of trying to shut down discussion on his past.
And the “network-effect” notion for the First Amendment is an interesting angle.
Craidg Murrays’s blog may be down but at least his book “Murder in Samarkand” in which he has interesting things to say about Mr Usmanov is still available.
One realises that ISPs and publishers have to defend themselves against the possibility of libel (and they may even arguably have a duty to the author to take down the site, pulp the book etc, if he indemnifies them…), but might not an action lie in tort against someone using unjustified legal threats against a third party to cause you a detriment?
It feels as if it should. But what sort of action would it be? (It isn’t inducing the breach of a contract, since the ISP or publisher is not put in breach.) And who would pursue it against a billionaire?
Guy:
That’s a very interesting question. While I could have a good stab at an answer under US law, I have no idea where matters would stand under English law.
If, as you say, breach of contract wouldn’t fly, it’s hard to imagine what would. I asked a couple of media lawyers a similar question a few years ago and was told redress under tort law would be difficult due to the lack of any acknowledged duty of care owed by the complainant to the aggrieved.
Natural justice certainly cries out for a course of action, but I’ve never heard anybody say what that might be.
FWIW, my take on the US position is that it may never have to come to torts, since S230 CDA gives site operators immunity from defamation claims arising out of comments posted by users and the DMCA (17USC S512) provides for penalty of perjury when making claims of copyright infringement.
No, the US will not shut you down without a court order for allegations of libel.
One has to allege copyright infringement to get instant, ex parte results in the digital world under US law.
Which is ‘sub-optimal’ to be sure but still less egregious than the situation regarding allegations of libel in places like the UK
In the US, Libel is still an offense for which one can be sued. However it is a tort and the libeled must prove actual financial damage. However, no libel exists if the charges are true. Speaking the truth is never libel or slander.
The Russian thug-O-cracy is using the structures of democracy and civil society to beat down those who are easily cowed. The problem is not the thugs but the judges and lawmakers who lack the civic will to resist. The alues of wstrn Society will fade away if we do not believe in them sufficient to defend them.
Just as Chavez has perverted democracy in venezuela and is promoting the path to other Latin America countries (Bolivia, Nicaragua) so too will Russia pick off the countries of Europe, or possibly do it all in one swoop thru the EU Parliment and Courts… Eitherway, Europe is the target. It’s up to Europeans to defend their rights. America can only watch as democracy and personal rights are eroded…
Given the shining example that Usmanov has provided in the past one wonders where the point is that he leaves off using respectable knuckledraggers such as Messrs Schilling & Co and starts bringing in his tame Uzbeki knuckledraggersinstead. I suspect its where people fail to lay off reproducing the Craig Murray article, which despite the best efforts of Schillings stll can not be eradicated from Google’s cache.
I’m currently reading PJ O’Rourke’s commentary on Smith’s Wealth of Nations. By sheer coincidence, I stopped last night at this:
In a sense – in the case of Internet free speech at least – this seems to be happening, albeit in a way he could never have imagined.
It is a well-worn technique in the UK to suppress criticism, whether justified or not. Robert Maxwell, a thoroughgoing crook and bully, was such a master during his lifetime that the hollowness of his empire after his death was a surprise to many outside medialand.
In some ways this is the flipside of the American system. Whereas their costs rule encourages litigants without merit to sue those with deep pockets, ours favours the very rich (and the state, and corporate boards using shareholders money) over everyone else, whichever side of the suit they are on. But it is much exacerbated by the weird state of our law of defamation.
It is more than truth that is a defence in American libel law.
In the case of General Westmoreland versus C.B.S. (along with some other cases) it was established that claims being both false and harmful (to the person the claims were being made about) was not enough to prove libel.
One had to prove that the person making the claims KNEW they were false.
This position tends to make libel actions in the United States a waste of time and money.
For example, even if George Walker Bush was a private citizen he could not sue either CBS (it does not use the dots anymore) or Mr Dan Rather for the claims made about his Texas Air National Guard Service – even though those claims were based on forged documents.
Mr Bush would have to prove that the key people (such as Mr Rather, who was personally involved in the stages of the story – not just reading it out on air) KNEW that the documents were forged.
A position of “this story was false and cost me the election” would not be enough.
Indeed Mr Rather still claims the story was true (to judge by his recent interviews) and when asked about the forged documents he just changes the subject – indeed he is sueing CBS for fireing him.
However, I am not sure just how far the “I thought what I said was true” defence goes in American libel law (and I think it is a Federal matter – not something that varries from State to State).
For example, Mr Dan Rather claimed (in prepared written remarks – so it is libel, not just slander, at least I believe so) that the Fox News people operate on the basis of talking points from the Bush White House.
Mr Neil Cavuto in his recent interview with Mr Rather asked “do you believe I operate on the basis of talking points from the White House” (or words to that effect).
And Mr Rather said “no I have great respect for you Neil, I never believed that”. And Mr Rather made a similar statement about Mr Bill O’Reilly.
Now as Mr Rather’s original remarks clearly applied to all the leading Fox News people and as he is now saying that he never believed his prepared remarks to be true of all the leading Fox News people he is asked about – is Mr Rather not confessing to libel?
Even according to American law this would seem to be the case.
Paul,
Which is approximately the case with malicious falsehood in this country (though my reading is that recklessness as to truth or falsity would be sufficient): an action that does exist, but isn’t much used given defamation is so much better for plaintiffs, who don’t have to show either malice or damage.
London is quite the hotspot in libel tourism.
There’s a complicating factor: the standard of proof becomes even worse (from a plaintiff’s perspective) when the supposed victim of the libel is a public figure. Basically, if I were to call Hillary Clinton a lying sack of what the dog left on the lawn, with the morals of her husband and the politics of Benito Mussolini, she almost couldn’t (successfully) sue me for it even if the statement were false.
The other rob:
It’s true that DMCA allows for pursuing a criminal case for perjury in the event of a false allegation. However, criminal cases in the US move forward largely at the discretion of the prosecutor.[1] Anything internet-related is going to be intimidating to the folks who majored in English Lit before law school, and it’s a rare one that will take such a case over the lower-hanging fruit.[2]
[1] They don’t get much choice when it comes to pressing an indictment handed down by a grand jury. However, grand juries rarely address anything that the prosecutor didn’t put in front of them to start with. Also, in most states, most prosecutions don’t pass through a grand jury at all. I don’t think there’s a single grand jury sitting in my state of four million people right now.
[2] False reporting and perjury cases are a bitch to prove. The prosecutor must prove that the defendant knew that his statement was false. Proving the contents of someone else’s head is not a trivial exercise. The lawyers will frequently use excuses to cover this, such as “We don’t want to discourage real victims or outcry witnesses from coming forward by prosecuting the liars.” I’ve been along for the ride on several false-reporting cases where the DA tossed them for exactly that excuse.
Indeed, though the Wikipedia article contains a trade-mark US-centric inaccuracy: truth is a defence against defamation claims in England – and almost everywhere with an independent legal system. (There are a lot of countries where departing from the officially accepted interpretation of history is criminalised, but that’s a bit different.)
The problem is that truth is only rarely relevant to the whole of a defamatory statement complained of, and usually irrelevant to an innuendo, or where the defamatory meaning arose from unintentional ambiguity.
Truth can also be difficult to get at: the Usmanov complaint arises from the interpretation of events that took place in the former Soviet Union, and the scarcely less murky Russian reconstruction era since. How can satisfactory evidence be brought before an English Court to prove one version or another?
That is the key peculiarity of our defamation law that makes it such a playground for plaintiffs. The defendant may even have reasonable grounds to believe what he said was true. But he must be able to meet the challenge to prove it in court to escape the consequences of a defamation action.
If he’d bought a UK passport like the other Russian criminals Berezovsky and Litvinenko would his past be forgotten too.