The Defamation Bill had its second reading in the House of Commons on Tuesday. Most of the MPs who talked about the new defences for website operators (clause 5 of the Bill) seemed to appreciate the complex balance between protecting reputation and protecting free speech, and agreed with the Justice Secretary:
our current libel regime is not well suited to dealing with the internet and modern technology. Legitimate criticism sometimes goes unheard because the liability of website operators, as providers of the platform on which vast amounts of information is published by users, puts them in the impossible position of having to decide when to defend or censor information. Meanwhile, individuals can be the subject of scurrilous rumour and allegation on the web with little meaningful remedy against the person responsible.
There were also a number of helpful comments that any duties on website hosts must be proportionate, but it’s clear that there are still some MPs who think that websites should be subject to the same liability regime as newspapers. Some of these mentioned horrific cases where criminal bullying and harassment had been committed through on-line services; both the Minister and his shadow stressed that the current Bill only deals with defamation, which is not a criminal offence, and that if there are gaps in the criminal law or its enforcement then these need to be addressed separately.
The Bill will create a new process that website hosts can follow when they receive a complaint; Julian Huppert MP stressed that this must not replace the existing options (either immediately removing material that is clearly illegal or alternatively leaving up material where a complaint seems to have no merit). The Regulations setting out this process haven’t been published so there was some confusion over what they will involve. The Justice Secretary said it would be “a procedure to put complainants in touch with the author of allegedly defamatory material”, whereas his shadow suggested that “[the author’s] details will be passed on to a potential claimant bringing an action”: very different! Both recognised that the process must protect “genuine whistleblowers”, but no one mentioned the need to protect the privacy of all web authors against those who will try to misuse the process to discover their identity. At the moment the identity of the author of a web page is protected by the Data Protection Act, and is only disclosed for alleged civil wrongs once the severity of the wrong and of the privacy breach have been balanced by a court applying the Norwich Pharmacal process. It’s particularly important that the Bill doesn’t pass that responsibility to the website host who has no access to the relevant facts or law and could inadvertently create a breach of the privacy or even (as some MPs noted, online disputes can escalate into real physical threats) the safety of their authors.
The Bill will be considered by a Committee of the House of Commons next week. The Government undertook to provide that Committee with “a note on the new process”, and that “draft regulations [implementing the process] will be published for consideration by stakeholders in due course”.