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Defamation Bill – Hints at Definitions and Processes

The 21st June sitting of the Commons Defamation Bill Committee provided some hints at answers to my questions about the Bill’s definitions and process.

On the question of who will be a “website operator”, able to benefit from the new defences, the Minister suggested this should be left to the courts, who can adapt to changing technology, rather than writing current definitions into the Act. However he did indicate that at present

Those would include website operators such as Facebook or Mumsnet, and online newspapers and bulletin boards that enable users to post and read messages

On the meaning of when a poster is “identifiable” and a claimant will be expected to deal directly with them rather than involving the website:

I want to make it clear that the word “identify” in subsection (3)(a) is intended to mean that the claimant has sufficient information to make contact directly with the individual who posted the material. What constitutes “sufficient” will obviously depend on the facts of the particular case. On a local discussion forum, where all users are known to one another, a name might in some cases be sufficient form of identification, but on a much larger forum, it is likely that some additional information, such as an e-mail address, might be required.

And although the process that website operators will be required to follow when they receive a complaint about a post whose author cannot be identified is still not available, the Minister indicated that this will not simply involve the site operator releasing contact details whenever a complaint is received. Instead it seems that the operator will be required to ask the author whether they are willing for their contact details to be released to the complainant. If they are not the complainant will be expected to ask a court to order disclosure of the information using the existing Norwich Pharmacal process, thus ensuring that the competing rights of protection of reputation and privacy are assessed by a judicial authority. Members of the Committee pointed out a number of problems with this – including the cost of a Norwich Pharmacal hearing and the fact that that poster may turn out to be in another country where a defamation case cannot be brought. It seems to me that there could also be problems if the process assumes that the website operator knows who the author is, though some members of the committee suggested resolving this by compelling (somehow) every poster to provide their real identity to the website. It seems the actual process is not yet settled and the Minister repeated his undertaking to

seek, in due course, the views of stakeholders—internet organisations, claimant lawyers and the libel reform campaigners—on the terms of draft regulations

By Andrew Cormack

I'm Chief Regulatory Advisor at Jisc, responsible for keeping an eye out for places where our ideas, services and products might raise regulatory issues. My aim is to fix either the product or service, or the regulation, before there's a painful bump!

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