UK Draft Defamation Bill and Anonymous Reviews
Earlier this year Parliament appointed a Joint Select Committee to consult and report on its draft Defamation Bill; the Committee recently published its report and it contains recommendations that could have a major impact on anonymous defamatory reviews, requiring website owners to remove such reviews on receipt of a complaint.
The Bill and Internet Defamation
The original draft Bill seeks to rebalance the law in defamation cases between the right of freedom of expression and the right to protect reputation.
However, the Joint Select Committee believes that it does not go far enough in addressing specific issues concerning online content, particularly anonymous reviews.
The Joint Select Committee Draft Defamation Bill Report
The committee proposes a series of reforms aimed at ensuring that disputes are generally resolved rapidly by mediation or arbitration, rather than via the courts.
An essential step in encouraging early resolution of disputes is the abolition of jury trials in defamation actions, in all but exceptional cases. Judges will then be required to take key decisions affecting the outcome of the case at an early stage, before massive legal costs are incurred.
The committee proposes to ensure that trivial cases are weeded out at an early stage by introducing a stricter test for determining whether a case is serious enough to go to court.
The Committee recommends 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.
In its detailed report the Committee recommends that if the author of a defamatory statement is identifiable then a complainant may take action against the author in order to pursue a legal remedy for the harm that they have suffered. The process for bringing a complaint will also be simplified. If the author is unidentifiable, a complaint will place a requirement on the ISP or host to remove the statement, unless the author identifies himself (in which case the aforementioned process applies), or the ISP or host considers the statement to be in the public interest (whereby they have the right to apply to court for exemption from a take-down order).
Excerpt from the report, downloadable in full at http://www.justice.gov.uk/downloads/consultations/draft-defamation-bill-consultation.pdf
NEW NOTICE AND TAKE-DOWN PROCEDURE
101. We propose a new notice and take-down procedure, as indicated in paragraph 93, designed to provide everyone with easy access to the rapid resolution of disputes about online material. It will also help promote a culture which downgrades the credibility of anonymous online material, as discussed below.
102. We are concerned to address some of the problems facing innocent victims of defamatory material on the internet. In particular, a defamatory allegation can spread around the world far more quickly than the victim can react. Posts and blogs are also often written anonymously by users who adopt a generic username and/or email address, or make use of encryption software to mask their identity. Anonymity may encourage free speech but it also discourages responsibility, as people feel free to make abusive or untrue comments without fear of any comeback. We heard a mixed range of views about the feasibility of identifying users by seeking a court order against the host or internet service provider and then investigating the person’s “electronic fingerprint” to reveal who and where they are. It is clear that even where this process leads to the defamer’s identity being known, it is not quick, cheap, or guaranteed in its outcome.
103. The challenges facing regulation of the internet contribute to what some people have described as a new “Wild West”, in which law enforcement is failing to keep pace with technology. Issues of this kind will not be solved overnight. There is, and will be, cultural change as we adapt to the use of new communication technologies. The law needs to respond to this. The precise direction of this social change is unpredictable but we believe it is possible, and desirable, to influence its development, in part through legislative reform. 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.
104. Contributions published on the internet can be divided into those that are identifiable, in terms of authorship, and those that are unidentified, as described above. In respect of identified contributions, we recommend the introduction of a regime based upon the following key provisions:
a) Where a complaint is received about allegedly defamatory material that is written by an identifiable author, the host or service provider must publish promptly a notice of complaint alongside that material. If the host or provider does not do so, it can only rely on the standard defences available to a primary publisher, if sued for defamation. The notice reduces the sting of the alleged libel but protects free speech by not requiring the host or service provider to remove what has been said; and
b) If the complainant wishes, the complainant may apply to a court for a take-down order. The host or service provider should inform the author about the application and both sides should be able to submit brief paper-based submissions. A judge will then read the submissions and make a decision promptly. Any order for take-down must then be implemented by the host or service provider immediately, or they risk facing a defamation claim as the publisher of the relevant statement. The timescale would be short and the costs for the complainant would be modest.
105. In order to promote the cultural change we have outlined above, we recommend that any material written by an unidentified person should be taken down by the host or service provider upon receipt of complaint, unless the author promptly responds positively to a request to identify themselves, in which case a notice of complaint should be attached. If the internet service provider believes that there are significant reasons of public interest that justify publishing the unidentified material—for example, if a whistle-blower is the source—it should have the right to apply to a judge for an exemption from the take-down procedure and secure a “leave-up” order. We do not believe that the host or service provider should be liable for anonymous material provided it has complied with the above requirements. If a person who has been defamed can go on to establish the identity of the author (with the help of the courts, online host or service providers) then they may take action against the author in order to pursue a legal remedy for the harm that they have suffered. Where this is not possible, we believe that the law should provide that ordinarily internet material from unidentified sources may not be relied upon by a defendant or claimant in defamation proceedings. Any host or service provider who refuses to take-down anonymous material should be treated as its publisher and face the risk of libel proceedings, subject to the standard defences and our proposals relating to leave up orders. It is for the Government to make clear in the Bill any exceptional circumstances in which unidentified material should have evidential value for the purposes of defamation proceedings. We do not pretend that we are advancing an ideal solution, still less an instant one, but promoting cultural change is an achievable goal that will minimise the damage inflicted by the mischievous and the malicious. Our aspiration is that, over time, people will pay less attention to and take less notice of material which is anonymous.
106. This two-stage procedure should apply equally to online sites that are moderated and those that are not. This is necessary to correct the existing disincentive to online hosts to moderate sites. To achieve this, the Government will need to reform the Defamation Act 1996 to the effect that secondary publishers—such as internet hosts or service providers—shall not be treated as becoming liable for allegedly defamatory statements solely by virtue of having moderated the material or the site more generally. Liability should be determined by the way in which the host or service provider responds to a request for a defamation notice or a take-down order.