The Defamation Bill completed its passage through the House of Commons this week with only minor changes to the provisions for third party postings on websites:
- A new power (New Clause 1) will be created for a court to order takedown of an article if it has been the subject of a successful defamation case. This avoids the situation where a claimant wins their case but the defendant does not remove the defamatory article;
- There is a helpful clarification (Amendment 6) that web hosts can moderate posts without risking losing their defence to defamation (note that this won’t apply to copyright and other legal liabilities);
- It has also been clarified (Amendment 5) that the author of a post will be considered “identifiable” (so the webhost doesn’t need to do anything) if the article has sufficient information for a claimant to initiate legal proceedings against the author (so a name and address would be enough but I’m not sure about an e-mail address or other online identity).
So it seems that the Bill envisages three possibilities when a web host is notified that an article may be defamatory:
- If the article contains sufficient information to initiate legal proceedings against the author, the website can wait for the outcome of those proceedings;
- If the author cannot be identified then the host must (as at present) decide whether it wants to take the risk that the article will be found defamatory;
- If the article does not identify the author, but the web host has sufficient information to contact them, then the host may follow a specified process to avoid liability. Unfortunately this process has not yet been published by the Government – the opposition noted that this means the Bill “deals inadequately with the treatment of website operators”.
The Bill now moves to the House of Lords, where there seems likely to be more discussion of the website provisions. The process for situation (3) will be critical for protecting free speech, victims of defamation and whistleblowers. If the process is too onerous for web hosts then they are likely to continue with their current notice and takedown approach. The process must therefore be simple, but somehow permit victims of defamation to obtain a remedy without stopping use of the web to highlight genuine problems. The Government has said it hopes to consult with stakeholders before the end of the year.