[Updated to add clause 6 on peer-reviewed scientific and academic journals]
As Lord May (once the government’s chief scientific advisor) pointed out, publicly telling someone they are wrong is an essential part of developing knowledge. That is why universities and colleges are required by the Education (No.2) Act 1986 to promote free speech by their members and guests. However under the current eCommerce Regulations a website that does not take down an article after receiving an allegation that it is defamatory may share liability with the author. As both Simon Singh and Nature have discovered, defending scientific criticism in such cases can be very expensive. At present, therefore, universities and colleges may have to choose, without any help from the courts, between their legal duty to support criticism and their legal duty to protect others from unlawful defamation.
Although details of the Government’s proposed process under clause 5 of the Bill have not been published, it seems these would create new options. On receiving a complaint that an article on a website is defamatory, the operator of the website will be required to contact the author if it’s not possible for the complainant to do so direct. For articles by members or guests of universities and colleges this shouldn’t be a problem. The author may either agree to the removal of the article, or ask for it to remain. Provided the author gives their name and legal contact address to the website operator, the operator may leave the article up without risking liability. The author can choose whether or not to allow the website operator to pass those details on to the complainant: in either case the complainant can then take action in court against the author, either immediately or after obtaining a Norwich Pharmacal Order to have the contact details disclosed by the website operator. Provided the operator follows the prescribed process it remains protected from liability until a court orders that the article be removed.
There are some obvious issues about how this would apply to the particular situation of universities and colleges as opposed to the millions of other websites that will be covered:
- For most members and guests it’s likely that a university or college would already have the required contact details without asking, though they would be prohibited by data protection law from releasing them without either the author’s agreement or a court order;
- For those members who are employees, I suspect that the normal rule that an employer is vicariously liable for what employees do in the course of their employment will take precedence over the new rules for website operators. However clause 6 of the Bill also contains measures to protect “peer-reviewed statement[s] in scientific or academic journal[s]”; the House of Lords debate seems to confirm an intention that this will cover both print and electronic formats, as well as identifying some of the new types of journal that are now emerging.
The Ministry of Justice have invited comments by the end of the month so I’ll be submitting these. Any other suggestions?