The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Tag: humour

The lighter side of libel

I wouldn’t dream of playing down how bad getting sued is for a writer because it’s never happened to me and unless it does you simply can’t relate to having your life interrupted like that.

However the lead up to being sued can be a wholly different matter.

The Art and Craft of Fiction

The business of money, to the writer
is like catching bubbles, to a child.

The publishers formed a guard of honour
at the bar, for the malcontent.
Guinness and wine. Good cop, bad cop.

‘We’ve received a letter, a legal letter,
from lawyers representing a powerful
and influential client. An unhappy woman.’

The author gripped his glass of Guinness
with both hands. ‘Aw, aye?’

‘Their client states that you’ve insulted her,
libelled her, accused her of filth and depravity,
not even bothered to change names and details.
They’re going to sue us for every penny they can.’

The writer picked up the letter,
scrutinised it, passed it back to the publishers,
drew deep from the well.

‘Why didn’t you tell us it was about your ex-wife?’
‘We didn’t even know you had an ex-wife.’
‘It was supposed to be fiction, for fucksake.’
‘There’s rules about what you can and can’t do.’

There was a silence that spoke in many tongues.
Some serious, some not.
‘You must have something to say about it?’

And he did. Just the one word. ‘Bullseye.’
And that was that. Ripples on the pond.

Kevin Williamson

H/T: Extracted from the current edition of Gutter, p113.




XKCD has a good reminder not to overthink the blogging thing today. There’s a lot of people who will sell you the social media web package but really what you’re looking for is what the guy in the crowd thinks.

XKCD #741: "Blogging"


EFF releases a new legal guide

The Electronic Frontier Foundation, the people behind the Blogger’s Guide to blogging in extreme situations has produced an update to their legal piece to bloggers.They make it very clear that the article does not constitute binding legal advice and this is doubly so for British readers– the EFF is an American organisation. While the field of internet media law is still relatively new and courts are reasonably happy to be directed to any useful authorities they will not be so happy to find the words “First Amendment” in the headnote and will have nearly no difficulty in resorting to regular media law which is a much more developed and older field.That tends not to be applied exactly between countries.

“The difference between you and the reporter at your local newspaper is that in many cases, you may not have the benefit of training or resources to help you determine whether what you’re doing is legal”

This is most recently seen in the case of Dr Ben Goldacre who was not making a ballsy protest when he posted an extract from a certain London radio show but simply couldn’t comprehend that it would actually step on anyone’s toes – it’s been beamed out over the airways hasn’t it? This is neatly contrasted by the media lawyers retained by LBC/Global Radio who knew exactly what rights they had and sent him a letter to that very effect.

The EFF, and I agree with them, make it completely clear that this does not mean that you should stop using your ability to present your own view on things. The concept of this being a legal right is not so nearly ingrained in the British psyche (beyond the vague complaint of “it’s a free country” that crops up now and again). Your right to post on a blog is limited with a number of conditions – defamation, copyright, indecency, even blasphemy and other issues. It’s not a free right by any stretch. While I know better than most about the limits I can go to it’s not something that the average, non law student member of the public can do at the same time as their regular job.

Why would you need to have studied the law in an area to use your computer? That’s why we have professional lawyers. People can drive only by knowing the rules and learning some skills and don’t need to be practicing lawyers as long as they stay within the rules, and even if they do stray over the lines it can still be settled simply (in the case of a speeding or parking ticket, say) using a routine public procedure.

There are many differences between getting a parking ticket and getting a copyright violation, one involves a public authority and the other involves a private, generally commercial, entity. A commercial entity suddenly changes everything – there is a lot more money involved and there’s huge interests involved in keeping the content protected. I whole heartedly believe that everyone has a right to protect their property and that’s something that can’t be denied simply because someone has a lot of it and therefore, you need to be careful to remain on the side of fair dealing rather than copyright theft – it’s not something that the average blogger generally falls into. Ben Goldacre falls into the case of “copyright violation plus” and that’s because he also has a huge readership and spoke out extremely strongly on the subject and was highly critical of the presenter in question.


Assuming that a blogger has been careful to avoid breaching anyone’s copyright unduly with his posts it is still possible that the blogger will land himself in hot water – perhaps for defamation. With some hesitation I say that the usual blogger will find it extremely difficult to actually falsely injure the reputation of a public figure unless they do utterly improbably effective rumour mongering and somehow find themselves with a vast readership. It’s extremely unlikely that anyone who will bother suing you will ever actually be affected by the vast majority of bloggers. However, if you post ludicrous hate messages on a blog be open to the possibility of your blog provider being contacted for content removal requests.

Secret content

The polar opposite of defamation is the unauthorised revelation of confidential material – this can just as validly be either be a leak or whistleblower in a company or a mole in a state’s military force and in either case information which is not for public revelation will be clear and it is possible to stay clear of this by simply using common sense. If you decide to (for reasons of conscience, for example) post this sort of content it is very advisable to retain a lawyer and to use their professional advice.


Blogs can simply break the law in terms of their content – that can be in terms of hate sites on racial or religious grounds, pornographic content (anything involving parties below the age of consent is particularly and obviously illegal) or perhaps obscene in another way. This is a particular concern for anyone who wants to maintain a professional looking blog – it’s very important to make sure that there’s nothing on your blog that you wouldn’t say to a client.


This is highly unlikely but an interesting example of the rich and varied history that exists just under the surface. Britain is still, in some ways, a religious country and there are laws still on the books which reflect this. The ancient and nearly defunct charge of blasphemy is one of these holdouts which is rolled out every so often as a way of dealing with awkward cases of publishing which offend someone but they lack interest.

The last case I can recall reading of was Whitehouse v Lemon in which a poem about Jesus was declared to be blasphemy in 1977, resurrecting the charge for the first time in 50 years. Legal blasphemy is, broadly speaking, something like defamation, but against a (generally Christian) religious figure as opposed to an interested pursuer. It’s a useful “back-scratcher” in that it provides what is effectively a public policy avenue in cases when the pursuer themselves actually doesn’t have much in the way of a personal reason to be pursuing the case and it’s a way of reaching some fairly specialised legal “itches” when you otherwise couldn’t as an individual. On the downside, it is an uphill struggle just getting this action accepted by a court in the first place (and you have to repeat that in every appeal) and it’s the realm of the hobbyist litigant for all practical purposes these days and those are extremely, vanishingly, rare.

I don’t say all this to discourage people from writing a blog – please understand that people happily live their lives doing what they want and not dealing with the legal implications of their actions except in very vague terms of rules and guidelines and how to keep within it. I do feel that there is a difference between thinking an opinion and publishing it internationally and there’s extra responsibilities tied up in that choice.

8 Common Sense Tips for legal blogging

  1. Don’t use your blog to distribute other people’s content, music, speech or videos, as a general rule. This does not prevent you, on the whole, presenting small chunks of the content as a visual aid in terms of your commentary unless you go over a threshold (about 5%-10% by time generally) in terms of extract and you are a seriously public figure yourself.
  2. The more readers your blog has, the more influential it is and the more careful a blogger needs to be if they stray into negative content about other people – this is a good rule for life, the modern “if you can’t say anything nice (and you’ve got a million readers) don’t say anything” (without proof). This is good reporting practice and I’d like to think that people wouldn’t make unsubstantiated claims about me.
  3. Serious blogs written by personalities have a stronger voice than anonymous comedy ones but comedy is not a defence from an action-
    (compare the readership of and, yet the smaller, more serious site attracted the lawyer’s letter for negative comments in a moment of levity.)
  4. Anonymous blogs are not completely anonymous; if a blogger reveals hugely damaging military secrets on their blog then great efforts will be made to track down that particular blogger and except for the very most carefully maintained anonymity it will merely slow down someone who’s tracking a blogger.
  5. Obscene content varies from place to place – if you exceed the terms of your blog host then it is probably the case that you are sailing close to the edge of acceptability in that country. Other countries differ in terms of what rates as obscene and it is worth checking this issue for any country you are writing from, particularly if you are writing content you wouldn’t immediately show your parents which is always a good rule of thumb.
  6. Wikileaks is a valid place to store content which suffers legal challenge. However it is not an automatic process. In Britain there is a traffic law that says you can’t take animals that you have knocked down yourself because that would encourage people to actively go out and kill them and it’s also a form of benefitting from your own wrong and this same rule applies to Wikileaks, if your blog receives a lawyer’s letter you are not allowed to take it off your site and go out and post it on Wikileaks – that’s not compliance. Some other person downloading it and then posting it to Wikileaks is perfectly ok since you are not responsible for the use your readers put your blog’s media files to. Posting it yourself is simply an aggravation of your copyright charge and will simply encourage your accuser to come after you with a vengeance.
  7. It is clear what secret content is generally – if you are given a grainy, out of focus image of a picture of an unreleased product or anything stamped “top secret” and talking about active military operations then you should be careful about reporting it.It’s a leak and you may face prosecution for it (publishing military secrets is, at its worst, spying). Otherwise, aggregated blog and news content is no longer secret and can be used with impunity. Personal investigation will reveal in moments if you’re involved in something that is held in secret – for example details about your employer.
  8. Blasphemy is very easily avoided in this day and age – avoid comparing homosexuality to Jesus in front of Mary Whitehouse.

I hope this is helpful to bloggers and to remember you don’t need to be a lawyer or a law student to be able to blog legally – it’s important to just act as you would in real life and not to let the apparent anonymity that’s available go to your head. If that’s not possible remember to stick to the truth, make sure your opinions are clearly just that (and not statements dressed up as opinions because that doesn’t count) and just generally be a responsible internet user.

The EFF legal guide for bloggers has been produced by the Electronic Frontier Foundation and can be found here: EFF (California)

A different definition of Alibi

Just a quick definition post here but it’s far too good to hide away in my glossary of terms.

I’ve already got alibi listed in the glossary and as all law students who have done their semester of Criminal Law know :

alibi Lat, [I was] “somewhere else.” A special defence providing a complete defence from any accusations if accepted. As it is a special defence the defending counsel must submit it in advance of the trial beginning and defending counsel must accept the burden of proof to prove that the person truly could not commit the crime. The Criminal Law Deskbook of Criminal Procedure states: “Alibi is different from all of the other defenses…it is based upon the premise that the defendant is truly innocent.”

However, in the words of “Ireland’s International Comedian” Hal Roach:

“The judge said to Murphy, “Are you guilty or not?” Murphy said said, “I don’t know until I hear the evidence and that’s my alibi.”

The judge said, “Don’t you know what an alibi is?” Murphy said” Yes, your honour, an alibi is to be after proving that your weren’t where you were when you committed the offence that you didn’t commit at all, and what’s more I wasn’t there at the time.”

Now that’s one to remember when you start to practice drafting pleadings.

I know a little of that copy looks odd so I’ve included the original for the quote here:

I know some of that quote looks dodgy so I decided I\'d show the original here