Concerns over Clause 5, Defamation Bill

This is an extract from an email sent to my MP concerning the Defamation Bill 2012, highlighting some of the issues with Clause 5, covering operators of websites. A more detailed post of the issues and the surrounding law will follow.

Clause 5 provides a new defence that protects the operators of websites against statements on their sites which they did not themselves post, provided that certain conditions are satisfied. Again, in principle, this is a welcome addition to the law as defamation can easily be abused to suppress online speech. My concerns are over the specific requirements of the defence, the extra burden it may impose on domestic website operators, and the chilling effect on free speech that such a blatant attack on anonymity will have.

The new defence seems out of phase with both existing law and even the rest of the bill. In drafting clause 5 (and commenting on the bill in the media) the Government seems understandably unaware of the recent case of Tamiz v Google[1]. In that case it was held that the website operator (Google, with regard to its hosting platform Blogger) was not a publisher at common law, as it did not have to take any positive steps to make material available (see, in particular, paragraph 39). Additionally, Eady J went on to find that, were Google a publisher, the defences under both the Defamation Act 1996 and the E-Commerce Directive would apply (see paragraphs 40-51 and 52-61 respectively). Given this, it seems that website operators may already have much greater protection against defamation claims than previously thought. However, rather than building on or clarifying these existing defences, the Government seems to have headed in an orthogonal direction, creating a new defence. This may simply add greater confusion to what is already a confusing and complex area of law.

The new defence seems unnecessarily limited. As it stands, it applies only to comments on a “website.” Aside from the fact that this seems to ignore the rest of the Internet (such as email services, instant messaging systems, or news posting networks such as Usenet), there seems little justification for restricting this defence to a specific technology. While the web seems to have remarkable staying power, one could compare such a limited defence to a defence specifically created for telegrams or fax machines; seemingly important at the time, but later made redundant. The aim behind the defence seems to be to provide immunity from defamation claims to those who merely provide a platform for comments. As such, it might be more appropriate and forward-thinking to re-phrase the defence in technology-neutral terms, applying to anyone who operators a platform by which third parties can publish or express their thoughts.

Another concern is that the meat of the measures provided in the clause 5 defence are being left to regulations. While I understand that this is an increasingly common way of passing legislation, the use of secondary legislation may add to the uncertainty and confusion of the defence (particularly to website operators who may not be intimately familiar with the English legal system or defamation law), and the lack of Parliamentary scrutiny such legislation requires could result in the defence being overly restrictive or counter-productive. Comparing this with the suggestions of the Parliamentary Committee on the draft bill,[2] the aim seems to be to create a “notice and takedown” system for defamation. While such systems are effectively in place through the defences in the E-Commerce Directive, there are very few examples of notice and takedown systems that have been implemented effectively and proportionately. In the United States, takedown legislation over copyright infringement has been notoriously unsuccessful, frequently being used for vexatious or fraudulent claims, or to stifle fair and lawful criticism or competition. Parliament should be very cautious about implementing a law here that comes down to placing a “remove this because I object to it” button on every comment on the Internet.

Another concern is the way it this clause singles out anonymity, again with no apparent justification. If the issue here is the ease with which a claim can be brought against the author of such comments, such situations would already seem to be covered by clause 10 of the bill, which provides a technology-neutral, general defence to third parties for comments where it is “reasonably practicable for an action to be brought against the author, editor or publisher.” If website operators are not publishers under this definition, then it does not matter whether the potential claimant can identify the author, provided that the operator (in conjunction with ISPs if needed) can do so. Recent high-profile cases involving Nicola Brookes[3] and Louise Mensch MP[4] show that is it often possible for the police or claimants to identify (within certain limits) online authors using existing law (the the latter case, via police actions, in the former using Norwich Pharmacal orders). It is worth noting, however, that those cases both seem to go beyond mere defamation to criminal offences of harassment, public disorder or the sending of malicious communications. Given this, the limitation of this defence to non-anonymous authors seems to add little to the law, but could lead to practical problems for and have chilling effects on website operators and free speech online.

While it is easy to sympathise with those on the receiving end of anonymous online abuse (having spent a great deal of time online, I am no stranger to it myself), and feel that something must be done to restrict it, those on the receiving end of online abuse or harassment already seem to have greater protection (at least in terms of evidence available due to information retained by ISPs) than the victims of offline harassment, which is arguably more serious, whether done in person or through the postal services. Given this it seems inappropriate to be singling out the online world for stricter laws while ignoring offline problems. That said, the existence of such “trolls” would seem to be a part of the price we have to pay, as a society, for freedom of expression and the right to privacy (in the form of anonymity). Insults, many of which may fall outside the scope of defamation as mere vulgar abuse, are common in society; whether in everyday social interaction, at public events (such as sports matches) or even being hurled across the floor of the House of Commons. It is not always the place of the law to step in to prevent these, unless they go too far and reach criminal levels of abuse or harassment.

In addition to the problems with the legal aspects and principles of the limitations to this new defence, I also have concerns with the practicalities of it. Most notably, the bill refers to situations when a claimant is unable to “identify” an author, and yet no definition of identify is given. Even with a definition, it would seem practically impossible for a website operator to guarantee and publish the identity of everyone posting online; even full, real names are rarely unique or enough to narrow down to a single legal person. Unless the Government plans to introduce some form of “online ID card” (contrary to its welcome opposition of ID cards in general), there seems to be no way for website operators to ensure enough information is provided (or to protect against dishonest authors, providing false information).

Secondly, this new burden to ban anonymous authors would only apply to UK-based website operators (or those within the reach of English and Welsh courts). While foreign operators may willingly co-operate (as Facebook has done), it may be difficult, if not impossible, to force these requirements onto many of them, particularly those in the United States of America, which has specific laws to protect against foreign defamation claims. This new defence, if it is going to be effective at all, would seem to place a heavy burden on UK websites (including your own blog, which currently seems to allow various levels of anonymity for comments), potentially making it much harder for them to compete on the International stage.

While this proposed law may take the form of an extra defence, giving website operators further protection, it may have the effect of scaring many websites into banning anonymity (and recent comments from the Government seem to confirm that this is the aim). It is understandable that a government would wish to oppose anonymous speech, which can be used to undermine those in power, however anonymity is vital to ensuring real freedom of speech. If online “trolls” do not have the freedom to insult people anonymously, those wishing to expose corporate corruption or speak out against oppression will similarly not have the protections provided by anonymity. Parliament should be very cautious when legislating to ensure that, while trying to make life slightly more pleasant for some people, it does not chip away too many of the fundamental freedoms required to protect our society.

  1. [2012] EWHC 449 (QB) – http://www.bailii.org/ew/cases/EWHC/QB/2012/449.html
  2. Joint Select Committee on the Draft Defamation Bill – http://www.parliament.uk/business/committees/committees-a-z/joint-select/draft-defamation-bill1/
  3. Facebook to release ID of users who abused woman online – http://www.bbc.co.uk/news/uk-england-sussex-18351855
  4. Warrant issued for man who threatened MP Louise Mensch – http://www.bbc.co.uk/news/uk-england-gloucestershire-18345139
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