United Kingdom: Freedom of Information and Blogging: A Potentially Dangerous Mix?

Article by Richard Best, published by:

Mondaq 19 January 2005

Article abstract:
"The Freedom of Information Act 2000 ("FOIA") gives people access to information held by public authorities which in many instances they could not previously access. Blogging gives people a publishing power they did not previously have. From commercial and legal perspectives, their combination may make for a potentially dangerous mix. Blogs which at least track Freedom of Information Act requests, such as the "UK FOIA Requests" blog (http://www.spy.org.uk/foia/), are already springing up and, going by the US experience, it would come as little surprise to find bloggers posting copies of documents obtained under FOIA to their blogs. In the fervour surrounding both the Act's coming into force and blogging's power to the people, it may be easy to lose sight of the fact that existing copyright and other legal protections have not fallen away. This article notes some of the risks facing originators of sensitive information supplied to public authorities and bloggers who obtain and choose to publish it."

Comment: This article certainly raises some interesting issues for bloggers and web publishers to think about. The article is certainly right in thinking many FOI requesters will receive and publish information without thought. It is certainly important that bloggers and web publishers consider the risks related to publishing third party materials obtained via FOIA that could be potentially breaking Copyright. The guidance to public authorities to make this clear before releasing is valid: "Originators of copyright material supplied to public authorities can take steps to minimise the risk of copying and posting to blogs (or other websites) by marking their documents with copyright notices, not because such notices are required to preserve copyright but because many people do not understand copyright laws and may innocently break them".

The article goes further to suggest that defamation may be also an issue: "a blogger should not do, at least not before considering certain legal questions, is post FOIA-obtained documents or relevant portions of them which are defamatory of a person or company. Again, although a public authority's release of such documents under FOIA does not expose the authority to an action for defamation (unless the documents were released with malice), the authority's statutory protection does not apply to the recipient. Questions of separate defences to an action for defamation may arise, but that's a separate issue". This is a difficult area, I'm not aware of any cases from overseas where this has happened, I will do some further research and post more if I find it. The whole issue of defemation and the Internet is very complicated due to the issues of jurisdiction, the ease of internet communications challenges many assumptions that underlie traditional defamation law. Further reading of:

Weaver R, 'Defamation Law in Turmoil: The Challenges Presented by the Internet', 2000 (3) The Journal of Information, Law and Technology (JILT).
http://elj.warwick.ac.uk/jilt/00-3/weaver.html

may be of interest related to this topic. Would a case against the publisher of FOIA documents if they were anonymous and held on an overseas server be possible? Would the documents be traceable to the requestor?

Other issues related to Copyright that might also be of interest that weren't mentioned in the article relate to when Copyright is held by the public authority: it is easy to apply for click-use licence from HMSO for Crown Copyright in many cases of reuse and the forthcoming implementation of the EU Directive on Public Sector Information will move the UK closer to the US in allowing reuse of public sector copyright material. (More details on US Copyright law)

Comments posted here are not legal advice and merely the views of the author