ModernityBlog

“Nearly all men can stand adversity, but if you want to test a man’s character, give him power.” Abraham Lincoln

The Implications.

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The implications of this judgement are explained by Dave Osler’s brief:

And Dave himself explaining it:

Update 1: Thanks to Stroppyblog, here’s the press release from Bryan Cave:

“In an important judgment handed down today in the High Court, Mr. Justice Eady ruled in favour of Bryan Cave pro bono client David Osler, a well-known journalist and blogger, who was defending a libel claim brought against him by Johanna Kaschke. London associate Robert Dougans represented Mr. Osler and acted as the advocate at the hearing. Mr. Justice Eady ruled that the claim against Mr. Osler was an abuse of process and should be struck out.

This significant case clarifies the position in respect of bloggers and the online media in relation to the liability they face in respect of old postings still available in their archives. Dougans advised on the recent landmark libel case win for Dr. Simon Singh brought by the British Chiropractic Association, which has been one of the causes of a campaign to reform England’s libel laws.

The Osler case arose out of a blog post written by Ms. Kaschke in which Ms. Kaschke stated that she had been wrongly arrested in Germany in the 1970s. Mr. Osler linked to, and summarised her blog post, which caused Ms. Kaschke to sue him for libel. However, Ms. Kaschke did not issue the claim form until over a year after Mr. Osler’s blog was posted on the web. Mr. Osler applied to the court to strike out the claim on two grounds, namely that the claim was an abuse of process and that there was no evidence of any publication after the expiry of the 1-year limitation period.
In the light of this decision, it is clear that real evidence of publication of such material is required, and that it will not lightly be inferred by the courts.

Dougans successfully convinced the court that the claim brought by Ms. Kaschke fell within the situation envisaged in the case of Jameel v Dow Jones [2005] QB 946, and should be struck out as an abuse of process. Mr. Justice Eady held that there was very little difference between what the claimant had put into the public domain and what Mr. Osler had published on his blog. In the circumstances, damages could only ever be very minor and a trial was simply not worth the time and expense that would be incurred. On these grounds, Ms. Kaschke’s claim was struck out as an abuse of process.

“This is a rare occasion where the Jameel argument has actually succeeded in striking out a claim. This argument is often run, but rarely succeeds” Dougans said. “Mr. Justice Eady’s decision today ought to clarify exactly when it is appropriate to run this argument, and give clarity to both Claimant and Defendant lawyers as to the type of dispute, which should be allowed to proceed by the courts” Dougans added. “This is not just my victory. My thanks go to the excellent William McCormick QC, of Ely Place Chambers, and David Allen Green, Of Counsel at Preiskel & Co; both played a key role in assisting me in this case, particularly in the development and expression of the key arguments, which were successful on the day. Further thanks are also due to Tooks Chambers’ Joel Bennathan QC and Martin Huseyin, who offered their time to represent Mr. Osler at trial, should it have been necessary, on a pro bono basis. It is a privilege to have been able to work with such a team.” “

[My emphasis.]

Update 2: Sense About Science covers it too.

Update 3: journalism.co.uk has a piece:

“Allen Green, who has acted pro bono along with solicitor Robert Dougans, reproduced the post on his own blog yesterday, but disabled the comments facility.

Green reported on Twitter that Kaschke had threatened a new libel claim against him: “I have just been formally THREATENED WITH A LIBEL CLAIM by Johanna Kaschke,” he wrote. “I am just the latest of dozens of bloggers/journalists threatened/served with libel by Kaschke.” This, Green said, is why he and Dougans acted pro bono in the Osler case.

Kaschke has also brought a libel action against LabourHome blogger Alex Hilton. Hilton failed to get the case struck out of the High Court last month. Hilton writes today: “Readers may well be aware that Ms Kaschke has a similar claim against me, running now for two years, on the basis of something written by a Labourhome contributor. I sincerely hope I will be able to follow Dave Osler’s route out of this mess.”

Update 3: Stroppyblog does a follow up post, David Osler libel case, the impact on lives.

Update 4: There’s a snippet on V3 on the case and the Internet message boards.

Update 5: The Press Association has more:

“The judge said he was quite satisfied the posting did not link Ms Kaschke to terrorism in the sense of suggesting in any way that she was directly linked with it or that she approved of the extremist activities. Mr Osler, he added, was merely choosing to highlight an unusual event in the history of someone who was at the material time active in politics in London.

Striking out the claim, he concluded that if a jury found in favour of Ms Kaschke, the damages would be very modest and out of all proportion to the time and money spent on the cost of a two-week trial.

He commented: “It is an important consideration for the court to have in mind on any abuse application that the fact of being sued at all is a serious interference with freedom of expression.

“That may be appropriate in the majority of libel actions, where it is necessary to countenance such interference in order to vindicate the rights of another person in respect of whom a real and substantial tort has occurred.

“But the court must be vigilant to recognise the small minority of cases where the legitimate objective of vindication is not required or, at least, cannot be achieved without a wholly disproportionate interference with the rights of the defendant.”

Update 6: There’s more coverage from East London Lines, Digital Spy, Robert Sharp and Peter Risdon.

Update 7: John Gray has his own thoughts on the matter, and is the subject of a libel act from Ms. Kaschke at the moment:

“It is practically unheard of for libel cases to be knocked back for this reason which shows how completely daft it was in the first place.  In a nutshell Kaschke is a German born national who in her youth in the 1970’s had been wrongly arrested and detained on warrant for several weeks by the German police on suspicion of being involved in terrorist activities.  She was released without charge and later given compensation for wrongful detention. Despite posting this information on her own blog and being offered a full right of reply she decided to sue Dave for posting about her own admissions.

Check out the links here, here, here about the whole sorry silly tale of how a former Labour Party member who failed to be a Parliamentary candidate defected to Respect then turned to the Communist Part of Great Britain then the Communist Party of Britain then the Labour Party again and finally (for now) joined the Conservative Party – all within a few months. Who then went on to waste tens of thousands of pounds of public money by taking out multiple libel actions and court applications that were doomed to fail. There has probably by now been millions of pages of documents wasted and thousands of hours of court administration officers and officials time used up. An incredible number of different expensive direction hearings, applications and appeals. Imagine how much Royal Court of Justice Masters and Judges are paid per day and how much nonsense they had to read and listen to!

Dave is a professional journalist and has suffered the stress and uncertainty of if he was to lose this action being made bankrupt and losing his home for the past 3 years.  Check out his Partner Stroppy account of the stress and strains this has caused. “

Update 8: The Times is running with it:

“A political activist today failed in her libel action over a journalist’s blog which referred to her “Baader-Meinhof” link.

In a ruling that gives bloggers some protection against libel actions, Mr Justice Eady rejected a claim by Johanna Kaschke , a Tower Hamlets-based Conservative, against David Osler, a Labour Party member, over an article that was written in April 2007.

Ms Kaschke claimed that some of the comments linked her with terrorism. The judge at the High Court in London, however, struck out the claim as an abuse of process. “

Update 9: Tim Worstall, I know I disagree with Dave Osler about everything…

2 Responses

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  1. […] and latterly a convert to Toryism, Johanna Kaschke has lost her vexatious libel actions against Dave Osler, John Gray and Alex […]

  2. […] The Implications. […]


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