The Joint Committee on Human Rights has published its conclusions on the Defamation Bill. Among other changes the Bill intends to clarify the position of websites that accept posts from third parties and make it less likely that lawful posts will be removed because of fear of liability. The Committee are “glad to see steps taken to protect website operators who are merely hosting content”, however they are concerned that the new proposals may actually reduce the protection of posts where the host is unable to contact the author.
This is because under the Bill the website operator may lose its defence to liability if it receives a complaint that a post is “defamatory” (clause 5(6)(b)). Since there are circumstances in which a defamatory statement may nonetheless be lawful – for example if it is true – this could result in website operators removing lawful material from their sites. The Committee recommend that complaints should be required to explain why the statement is unlawful, in other words both that it is defamatory and that there are no defences available to the poster. The European Ecommerce Directive uses this higher threshold and a High Court case earlier this year found that a web host did not have “actual knowledge of unlawful activity” because it could not determine whether any defences applied to the article complained of.
The Committee also note that the actions that will be required of a webhost if it is able to contact the author will be set by Regulations, which are not yet available. Since these Regulations will have a significant effect on the balance between the human rights of privacy, free speech and reputation, the Committee consider that they should be debated in Parliament rather than adopted by default.
Finally, the Committee recognise the particular problems that the Bill would create for universities and colleges who would have conflicting legal duties to promote free speech but also to remove defamatory material. They recommend that the Government provide statutory guidance for universities and colleges on how to respond to complaints of defamation, rather than them having to risk liability for a breach of one or other of these duties.
The Bill is due to start its committee stage in the House of Lords next week. The government is also expected to consult on the Regulations for website operators.
