Michael Arrington snared in libel verdict: lessons for us all

Michael Arrington snared in libel verdict: lessons for us all

Summary: The UK's High Court of Justice has ruled that Michael Arrington and Interserve Inc libeled Sam Sethi (see above.) The original plaint claimed that Arrington/Interserve engaged in a:"...

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The UK's High Court of Justice has ruled that Michael Arrington and Interserve Inc libeled Sam Sethi (see above.) The original plaint claimed that Arrington/Interserve engaged in a:

"...sustained campaign of character assassination against the Claimant alleging fraud; bank forgery and other crimes; including threats to murder a business associate; of being psychotic; pathological; threatening; despicable; disreputable; deceitful; and a cheat."

Arrington/Interserve sought to air this in public through various blog posts, the most recent of which provides the history as they see it here. Critically, they say:

This letter follows up on our March 18, 2009 letter to you, in which we explained that TechCrunch is not susceptible to the jurisdiction of English courts and the proper forum for your client’s claims would be the State of California.

In other words, both Arrington/Interserve attempted to move the case from Sethi's home ground to another jurisdiction. The UK courts thought differently.

It is my understanding that neither Arrington nor Interserve chose to defend the case in the UK courts and having given notice that they would not do so are precluded from raising a viable appeal. This means that under UK law, Arrington/Interserve are liable for any final monetary damages and costs the court chooses to award. Sethi tells me that his costs are of the order of £30,000 and the plaint calls for monetary damages of up to £50,000.

Further since this will constitute a debt to the court, should Arrington attempt to enter the UK without first having settled the matter, he might be liable to immediate arrest and incarceration. That has yet to be tested but represents a risk that Arrington will need to consider for the future.

This case raises interesting topics for enterprise generally. The UK is sometimes cast as being 'claimant friendly' in libel matters with the onus being on the defendant to make their case. Even then it is not as simple as it sounds. Here is an example:

In the UK, if someone thinks that what you wrote about them is either defamatory or damaging, the onus will be entirely on you to prove that your comments are true in court. In other words, if you make the claim, you've got to prove it!

For example, if you said Peter Sutcliffe had never paid his TV licence in his life that would not be defamatory - or it is very unlikely to be. However, if you said the same about TV boss Greg Dyke, that would be.

Why? Because Peter Sutcliffe's reputation will not be damaged by the TV licence revelation (he is after all a mass murderer). Of course, his lawyers would still be free to bring the case to court, but it is very unlikely they would succeed.

Greg Dyke, on the other hand, runs the BBC , so to say he wilfully doesn't pay his TV licence could have a seriously detrimental effect on his career. He could be fired or his reputation damaged (note:Dyke has now left the BBC).

It is not for the judge or jury (at the outset) to decide how damaged he is - they just have to confirm that such accusations are false and damaging. Then the judge and/or jury decide on monetary damages.

The fact Arrington/Interserve chose not to defend in the UK courts means that regardless of the veracity of their claims, they lose by default. It doesn't matter whether Arrington/Interserve are 100% accurate in the statements they made, they have been considered answerable to a valid plaint under UK law and having chosen to stay silent, they gave up their right of defense. Put simply: don't try to say the law doesn't apply to me and expect that to be a viable defense in all jurisdictions. By default, the judgment recognizes that Arringon/Interserve are in a position of power where what they say carries weight to a large audience and can be considered damaging.

The fact that Arrington/Interserve chose to air this in the public domain makes it worse because they cannot dispute what they have said. Worse still, by eliciting comments to the libel, they are opening the door to compounding the libel by others. How well that stands up has not been thoroughly tested although a recent ruling suggests that defamatory bulletin board comments are more likely slander.

I am all in favor of change in media and the blogosphere has opened the Pandora's Box for speaking publicly about matters anyone considers important. I give Arrington full credit for attempting to 'change the media game' and using his right to freedom of speech as a way of articulating what he believes to be true. This is an ongoing debate that will be carried well into the future. However, that has to be tempered by understanding that you cannot make the rules up and expect that jurisdictions will ignore the laws that apply in their lands. As this case shows, it doesn't work that way, regardless of how any one individual views the situation. UK law may be viewed as quirky but that doesn't matter.

In the US, it is widely assumed that freedom of speech means just that: say what you wish more or less without impunity. This case shows that while that might be true in the US, you cannot make the same assumptions elsewhere. Put bluntly - don't use your position or power to oppress others and expect you can do so without recourse. As someone who has to navigate different interpretations of software licensing, I can understand the frustrations many feel at what they see as frivolous, vexatious or just plain wrong. But the law is what it is whether any of us like it or not.

Enterprise will look at this and consider how well they have framed their public policies concerning employee blogging such that they are protected in different territories. My reading suggests that while policies might be fine in one place, they will need to be reviewed for others. My hope is that common sense will prevail and we won't see a general clamp down on the expression of honestly held opinion.

In the past, Arrington has made much of the fact that no-one has successfully sued and won. On the basis of this decision, that claim has now been shattered.

In a telephone conversation with me, Sethi pondered whether Arrington/Interserve will settle whatever the court awards. According to the plaint:

"The Claimant only wishes to restore his good reputation and will give all of any award to charity and/or the family of the colleague who suffered a fatal heart attack (Mark Orchant) and/or, to contribute towards unpaid salaries of those editors involved in the failed website, Blognation.com."

From a PR standpoint, Arrington/Interserve are in a difficult position. Do they stand back and do nothing, even though the financial onus for dealing with the Blognation.com debacle would now seem to sit squarely on their shoulders by virtue of the wording in the plaint? Or do they accept what has happened and pay whatever the court awards? Neither route is easy to navigate successfully.

Anyone who reads this blog knows I am no stranger to irreverance so as an amusing aside, when Arrington recently hired Paul Carr, Carr said:

To Michael’s credit, he didn’t hesitate in agreeing to the editorial independence (”but if you suck, I’ll fire you”) and to two of my other three demands.

Does this now mean that Arrington sucks and that he has to fire himself? In the meantime it will be interesting to see how Arrington/Interserve respond.

UPDATE: it seems in true TechCrunch fashion, they've already responded. Doesn't change what's happened in the courts. That's the point.

Topics: Mobility, Browser, Hardware

Dennis Howlett

About Dennis Howlett

Dennis Howlett is a 40 year veteran in enterprise IT, working with companies large and small across many industries. He endeavors to inform buyers in a no-nonsense manner and spares no vendor that comes under his microscope.

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40 comments
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  • absurd eh!

    So Arrington thinks Sam's litigation was absurd, and has decided not to submit to the the jurisdiction of the UK courts. I heard Mike was a lawyer, so it seems strange tactics to me - and surely he's been very poorly advised. Very interested to see how this plays out in the courts of public opinion either side of the Atlantic.

    By the way, I have my own views and some inside knowledge, as one of the blognation.com editors that was directly involved in this thing (but I'm keeping my own counsel).
    david_terrar
    • "liturgation"?

      Merriam-Webster never heard of it, either.
      ejhonda
  • Holy Christ...

    See, I didn't know about any of this. Granted, I only started on ZDNet in May 2008 but surprised I didn't hear about it. After following link after link, I've learned more and more about the background to this - Oliver Starr, Marc (very sad), Sethi and Arrington... this is huge.

    While I won't comment on my personal opinion - simply because it's unfair to do so after only just finding out about it - it's certainly a big, very messy mess. We most certainly can learn a thing or two from this. Keep it professional, and leave personal issues aside.
    zwhittaker
    • See what you've been missing

      The background is huge but the libel case was focused on some very specific issues. I'm no lawyer but having both won and lost in court I know that some of what was going on was pretty darned extreme. I don't know whether Arrington/TC would have won in a contested issue but that is now moot. It's over
      dahowlett
    • Keep it professional

      This was a right royal mess and sadly litigation was the only way I could see to get some closure. Being a UK citizen it was my right to seek redress in the UK courts.

      As for Mr Starr sadly there is more to come as Dennis is aware but that is for another day. I accept I made mistakes and wish I could turn the clock back to correct them but I did not deserve the personal character assasination from Starr/Arrington and the Techcrunch trolls.

      I hope this brings a close to this whole sorry mess for all parties. The show is over time to move on.
      samksethi
  • RE: Michael Arrington snared in libel verdict: lessons for us all

    Oh come on, it is patently absurd to litigate this in
    the UK. Unless you believe that UK courts have jurisdiction over anything written anywhere on the
    internet.

    The UK is a total libel tourist paradise. Hopefully the
    libel laws will be reformed at some point.

    I think you are far too dismissive of Techcrunch's
    decision not to litigate, that they lost on a default
    judgement is not an indication of anything but the fact
    they didn't turn up.

    If you were sued in Nigera or China or the Federated
    States of Micronesia, are you obligied to spend up to
    half a million dollars to defend yourself?
    moocowmoo
    • Wrong

      Sethi lives in the UK, he was the person libeled, he gets to choose, end of story. If Arrington and TechCrunch don't like it then tough but that's how it plays in the UK. If anyone was dismissive it was Arrington making clear - I ain't playing by your rules. Well guess what? Other jurisdictions don't take kindly to that sort of thing. And big though he may be, he isn't exempt. Now everyone else has to shut up or all they're doing is compounding the problem. In addition, Arrington/TC ARE on the hook in the UK. Doesn't matter what anyone thinks. That's where Arrington's wheels have really fallen off.
      dahowlett
      • Wrong in numbers

        Arrington is hardly the first American to refuse to participate in UK libel proceedings. See, for instance, Rachel Ehrenfeld whose book about terrorist funding was not even sold in the UK. In response, the New York senate passed a law protecting against foreign libel judgments.

        A *law* was passed specifically to protect the type of response Arrington made.

        Maybe this case will cause the same thing to happen in the Californian senate, that should be fun.
        moocowmoo
        • It still means...

          ...there is a judgment filed in the UK courts. He can't argue that. Now if he chooses to try overturn then that's another matter, but so far he's saying no. Well, that's his right I guess.
          dahowlett
          • Half a million dollars?

            moocowmoo - you seem to be propogating Arington's suggestion that action in the UK would have cost him $500,000 - where did he get that number from? Sorry, but I don't believe that.
            david_terrar
          • Sorry, Wrong Response Level

            My apologies, I was attempting to reply to the author of the article.
            Benabbydk
          • Don't Try to Practice Law if you Aren't a Lawyer

            You know nothing about the law of libel in the US and UK, and you know nothing about the concept of jurisdiction, so I suggest you either get a lawyer to explain it to you, or stop talking about what you don't understand. The UK's attempts to assert jurisdiction over speech outside the UK and punish it are absurd. They are sovereign, and can do what they want, but no one else is bound to pay them any attention. ANY idiot can get a judgement filed against someone by default in ANY jurisdiction. I can sue you in Illinois for anything and get a default judgment against you because you are not going to be stupid enough to show up. Then IF I knew you were coming to Illinois, I could get your personal possession's seized when you get into the state to satisfy the judgment. HOWEVER, and this is a big thing, the judgment is totally invalid, because the court never had valid jurisdiction over you. If you challenge it (and presumably win) the whole thing is tossed out, and if it's egregious enough, I am subject to sanction for abuse of the legal process. That's the way it works when political entities have ethically and morally acceptable jurisdictional rules. Our constitution prevents Illinois from asserting jurisdiction over you. The UK's attempts to asset jurisdiction here are morally and ethically invalid; that's why the US can pass laws prohibiting the enforcement of those judgments here. I think we have learned from our own civil rights history that just because some political entity passes a law doesn't meant that law is morally or ethically valid. In fact, the law, at least in the US, recognizes an OBLIGATION to refuse to obey laws that violate acceptable norms.
            Benabbydk
          • Don't be such a fool if you're a lawyer

            I am a lawyer, who has worked in both the US and UK. If you injure someone in the UK, s/he gets to sue you there, even if you're an American (just as someone injured in the US would be entitled to sue in an American court for injury caused by a Brit). So there's no oddity about the British concept of jurisdiction at all. All you are objecting to is the idea that someone can sue for injury caused by speech. Fine - but no legal system outside the US is obliged to take the American viewpoint. If Arrington has no intention of going to the UK, then all this will have little practical effect on him. If he had intended to go to the UK at some point, then he was a fool not to think through the full implications of what he was doing. In any event, just because someone has the legal right to do something, doesn't necessarily make it a good thing to do.
            KTS951
          • Bullseye!

            very well put comment and opinion. Thanks KTS951
            GeorgeAtha
          • Duh?

            None of this has anything to do with what YOU think is immoral or ethical but about what a sovereign court in the UK decided based on the FACTS as presented in a valid plaint under UK law. As I said in the article: that may not be to everyone's liking but that's not the point, something that doesn't seem to make any impression.

            And please let's not even attempt to go down the road of what the US thinks is moral. This is NOT what this story is about.
            dahowlett
          • Ruling based on facts?

            The U.K. court's ruling wasn't based on any "FACTS" other than the fact that the accused party didn't show up.

            You're lending too much weight to default judgments.
            ParrotHead_FL
  • Uhm...

    Who is Michael Arrington? This article refers to him as a blogger and no other background is provided.
    mithraigor@...
    • Funny

      TechCrunch founder.
      dahowlett
      • Tech Cruch

        What is TechCrunch, haven't heard of it either.
        dhays
        • what is what?

          And what are blogs? And courts? Lawyers?
          :-)
          Zoli Erdos