One of the perverse effects of the current law on liability of website operators is that it discourages sites from checking comments and posts provided by others. Instead the law encourages the operator to do nothing until they receive a complaint. Earlier this week the House of Commons Select Committee considered whether an amendment was needed to the new Defamation Bill to address this problem.
The Opposition noted that “Post moderation is something that should be encouraged. Many consider it best practice and so it would be a great shame if this Bill ended up creating a chilling effect of its own while failing to protect those who moderate posts” and proposed that the law should explicitly protect moderation:
(2A) The defence provided in this section is not affected by the operator having a policy of amending content (“moderation”) after it has been published provided that any changes made as a result of the actions of the moderator—
(a) do not significantly increase the defamatory nature of the words complained of;
(b) do not remove a relevant defence to an action for defamation in relation to the words complained of; and
(c) do not significantly increase the extent of the publication of the words complained of.
The Minister agreed “that responsible moderation of content should be encouraged” but argued that the Bill already provided the necessary protection. However this only applies if the website operator follows a set procedure which has not yet been published (or, it seems, provided to the Committee), so it’s not yet clear whether it will be sufficient to encourage moderation or whether operators will continue to rely on the existing un-moderated approach.