The Defamation Bill arrived in the House of Lords this week. Most of the debate concentrated on how to reform the definition of defamation and the court processes for dealing with it. However Lord McNally (at Column 934) gave a good summary of the twin problems affecting websites that host content provided by third parties:
It is also a fact that our current libel regime is not well suited to the internet. Legitimate criticism sometimes goes unheard because website operators, as providers of the platforms on which vast amounts of information are published, often choose simply to remove material which is complained of rather than risk proceedings being brought against them. Meanwhile, individuals can be the subject of scurrilous rumour and allegation on the web without meaningful remedy against the people responsible.
Clause 5 of the Bill proposes measures to try to find a better balance but, as in the Commons, there was general regret that the Government has not yet provided details of how this will be achieved. The Government aims to have consulted on these by the end of the year.
A couple of speeches seemed to suggest that the solution was to disclose the identity of the author whenever a complaint was received – the Bill iself is silent on whether this is what is intended – but Viscount Colville spotted (at Column 944) that this would replace a freedom of speech problem with a privacy problem:
However, I ask the Minister to be aware that the clause could be used by people who want to unmask the identity of an anonymous individual, maybe a whistleblower or someone like that, by using a spurious defamation claim to force a website operator to do so. There needs to be some burden of proof when making the claim that a remark is defamatory before it should be removed.
The detail of the Bill will now be examined in the Lords’ Committee stage.