The report of Parliament’s Joint Committee on the Draft Defamation Bill acknowledges the problems raised in our response to the consultation and proposes some novel solutions. As was noted by the Law Commission in 2002, current defamation law encourages Internet hosts to remove material provided by third parties as soon as they receive a complaint that it is defamatory, without investigating the validity of the complaint. Furthermore if a host attempts to check or moderate such content before a complaint is received, it may well acquire liability by doing so. The committee conclude (para 99):
As the law stands, far from encouraging service providers to foster legitimate debate in a responsible manner and removing the most extreme material, it encourages them to ignore any dubious material but then to remove it without question following a complaint. This is contrary to the public interest and an unacceptable state of affairs.
They therefore recommend (para 100) that the Government takes action by:
Ensuring that people who are defamed online, whether or not they know the identity of the author, have a quick and inexpensive way to protect their reputation, in line with our core principles of reducing costs and improving accessibility;
Reducing the pressure on hosts and service providers to take down material whenever it is challenged as being defamatory, in line with our core principle of protecting freedom of speech; and
Encouraging site owners to moderate content that is written by its users, in line with our core principle that freedom of speech should be exercised with due regard to the protection of reputation.
They propose that this be achieved by a new statutory notice and takedown process, which would be the only way that an on-line host can acquire liability for third party content. In particular whether a host monitors or moderates will no longer be relevant, so “correct[ing] the existing disincentive to online hosts to moderate sites”. The process would distinguish between material that is “written by an identifiable author” and material that is not (it’s not made clear what constitutes “identifiability” – is an e-mail address sufficient or does the host need to obtain, or even publish, real-world contact details?):
- Where a complaint is made about a posting by an identifiable author, the host will be protected from liability so long as they “publish promptly a notice of complaint alongside that material”. If this is not sufficient the complainant can ask a court to order the removal of the material: if this is done the host must inform the author and then follow the court’s direction. (para 104)
- For postings where the author is not identifiable, the host must remove the material when a complaint is received, “unless the author promptly responds positively to a request to identify themselves”, in which case the complaint is treated as above (this implies that the host can communicate with the author, which won’t always be the case). If the host believes that public interest justifies continued publication then they can ask a court to make a “leave-up” order; otherwise the host becomes liable for any defamation if they do not remove the material. (para 105)
This would clearly provide Internet hosts with much stronger protection than at present where the author of a post is known. For anonymous postings the position doesn’t seem to change much, though the Committee’s comments on the difficulty of identifying and pursuing anonymous authors indicate that they expect the host to be the sole defendant in most cases that do make it to court.
There is some help for universities and colleges who are required to promote free speech by their members – a requirement that may make it harder to follow a notice and takedown procedure. A qualified privilege is proposed to protect reports of academic and scientific conferences and peer-reviewed articles in journals (paras 47-49). And where other types of on-line publication need to be made anonymously then there would be the option of seeking a “leave-up” notice when a complaint is received: in effect this would be a judicial decision on whether or not a complaint is justified, something that is not available under the current system without risking liability if the court upholds the complaint.
It will be interesting to see how the Government responds to these proposals.
The committee don’t limit themselves to changing the law: according to paragraph 103 the treatment of anonymous comments is an attempt to change how they are viewed:
Specifically we expect, and wish to promote, a cultural shift towards a general recognition that unidentified postings are not to be treated as true, reliable or trustworthy. The desired outcome to be achieved—albeit not immediately—should be that they are ignored or not regarded as credible unless the author is willing to justify or defend what they have written by disclosing his or her identity
Since it is suggested elsewhere that the measures will “limit the credibility of, and therefore damage that can be caused by, material that is published anonymously” it seems that the hope is to change the attitudes of both readers and subjects. Given that the committee also recommend (para 28) raising the threshhold so that only publications causing “serious and substantial harm” can break the law, perhaps the aim is to take anonymous comments below the threshhold and out of the scope of defamation law entirely?