Friday, 12 November 2010

Libellous freedom of information responses

For those that have yet to encounter it WhatDoTheyKnow (“WDTK”) is a website that helps members of the public make requests under the Freedom of Information Act. It displays the request and any subsequent communication (that was made via the site) between the person making the request and the public body in question. Anyone else may add comments, known as “annotations” at any stage of a request.

Like most other websites to which members of the public may contribute, WDTK has to be concerned about libellous contributions. As they note although they are forced to hide only a small proportion of the total number of requests, doing so still represents a significant effort for their volunteers. Most of the issues of libel arise either in the original request, or in subsequent correspondence including annotations made by third parties. But there is a more difficult problem where the libel is contained in the FOI response itself.

Consider the recent case of McLaughlin v Lambeth [2010] EWHC 2726 in which one of the alleged libels was contained in a “briefing report” prepared by the local authority and sent to the Department of Education. If a member of the public made a successful FOI request via WDTK for that report, WDTK's software would automatically republish it on their site. The Claimants in McLaughlin might well ask WDTK to remove the disclosed material — what then is WDTK supposed to do?

The difficulty is the classic chilling effect. WDTK are in no position to decide whether the briefing report is libellous, or whether their publication of it is defensible under some general libel defence — for example under public interest “Reynolds” qualified privilege. Unlike the commercial news media, who can take a view that profit made from publication is offset by the occasional loss of a libel suit and have the funds to insure against defamation claims, WDTK is a charity funded, volunteer run site. They are in no position to take the risk which means they cannot as robustly defend the public interest in freedom of information as they would like.

There is an absurdity about this since if one FOI request is successful then (because of the “applicant blind” approach) so ought a subsequent one. If I can obtain the briefing report under FOI, then so can you. It is unclear whether WDTK could display a message stating that a particular response had been removed because it was libellous, but that anyone can request their own copy by clicking on a particular link which would then send a fresh request to the authority. Such an approach might be a “publication” of the libel, depending on how one reads some rather old authorities.

The common law might recognise this absurdity and decide that publication of FOI responses was a form of qualified privilege. There is a line of old authorities that the publication of a fair and accurate copy of (or extract from) any register kept pursuant to statute and which by law the public are entitled to inspect attracts the defence of qualified privilege. For example publication of a copy of a county court judgment would attract common law qualified privilege. The reason for this defence was explained by Lord Esher MR in Searles v Scarlett [1892] 2 QB 56:

“The law provides that the register shall be a public document which anybody may consult for this purpose. That being so, the publisher of such a list ... is only doing for the public what they may do for themselves, and is only giving that information to the public and to tradesmen which the legislature has thought it right they should have.”

That reasoning appears to be equally applicable to republication of an FOI request. It is true that the cases are all concerned with documents or registers that the public is entitled to inspect, rather than request, but it seems to me that the right to email a public body and have a document sent in response is a very similar one and the common law reasoning could be extended if a court were properly persuaded to do so.

All this is not of much use to WDTK. The last thing they would wish to do is to litigate this question. What is interesting to lawyers is rarely rewarding to their clients. It would be much better if the question were settled by statute. Most of the old common law forms of qualified privilege of this type have been given statutory force by section 15 of the Defamation Act 1996. If any of you have the ear of government you might suggest that the addition of an exception for the publication of information released under the Freedom of Information Act (and similar legislation) should be added to part II of Schedule 1 of the Defamation Act 1996. If I am right that the common law covers this situation anyway, all such a change would so is enact in statutory form a defence which already exist.

Of course a wider reform of the law of defamation is also desirable, but failing that, this would be a useful improvement.

1 comment:

Will said...

I suggest an email to Anthony Lord Lester QC, whose Defamation Bill would be the ideal place to make this point. Bills drafted by Lord Lester have a habit of turning into laws.

It might be thought to come under Cl. 8 via Sch. 1(5) or (7) anyway but it is not explicit in the bill.