June 13, 2012

In his excellent article in this issue, Andrew Tibber asks the question ‘The Defamation Bill: A Fair Balance?‘ in his title for the piece. He ends, I think with clause 5 (the web site operators’ defence) in mind, thus: ‘genuine claimants, for whom an initial cease and desist letter to a web site host or operator may previously have been sufficient to resolve their complaint, may now find that effective and affordable action is beyond their reach. They may feel that the balance is not fair, and that it has shifted too far in favour of the publishers.’

I write this shortly after the Second Reading of the Bill in the House of Commons. I would like to say that I thus have an advantage over Andrew, who wrote his article well before the debate on Second Reading, as I saw Parliament’s finest in action and know that the concerns mentioned above will be addressed. But the truth is that the Bill was sold to the media in advance as some sort of solution to the pain caused by trolls (which it certainly isn’t), the debate included a good deal of grandstanding and wandered off into discussion of criminal remedies, and only Helen Goodman, Robert Flello, and perhaps Jacob Rees-Mogg seemed to have grasped the issue about clause 5 that really concerns me.  Robert Flello puts it succinctly:There is … the worrying development that libellous statements hosted on a website might remain in place because the defamed person is unable to take action against the identified author’.

The problem is that, once a web site operator shows that it did not post the material itself and identifies the peron who did, or indeed where that person is readily identifiable, the web site operator has a defence. The poster of the material may be an impecunious defamer, an identified but untraceable defamer, a 12-year-old defamer or a defamer who is in another jurisdiction (good luck with proceedings in the USA and Russia!), but the defence is made out; there is no further legal obligation for the web site operator to take down a clear libel. Since we all know that there is a massive public appetite for nasty tittle tattle – so great that some ‘celebrities’ make it up about themselves to boost their profile – nobody would be surprised if a web site hosting defamatory comments about a prominent person such as an England football captain drew in an enormous amount of traffic. The commercial interest of the site hosting that material is to leave it up for as long as it can – more traffic, more advertising revenue.

On a local scale, a minor libel on Facebook can render a person unemployable – and thus hardly likely to find the resources to sue the identified defamer. As Rees-Mogg pointed out in an uncharacteristic flash of common sense, the ‘two or three firms that dominate the world … are not necessarily on the side of the individual who is defamed’ so there is little hope of appealing to their better instincts when action involves cost.

I do not dispute the need for libel reform and happily supported Simon Singh and others in their campaigns. But this Bill is probably a once-in-a-decade opportunity to get the balance right – and the shift from the Joint Committee’s proposals for an obligation to post a notice of complaint alongside the offending material has tipped that balance. In the attempt to cleanse the law of libel of some of its abuses, I think that we are throwing the baby out with the bathwater.

I realise of course that intermediaries and many web site operators have told the Government that it is impracticable or impossible to deal with complaints by posting notices and it is not for them to adjudicate on what is defamatory. Of course, as with cookies consent, ‘impossible’ is oft used by such bodies as a synonym for expensive or bothersome; these bodies are not the most reliable judges and have always sought to shirk responsibility. A comparison with the position on file-sharing, whether under the DEA or by way of the filtering required of ISPs in relation to Pirate Bay, is salutary – however much of a waste of time that turns out to be, at least the law tried!

Most of my concerns are policy concerns, and I believe that it will take just one day’s TV coverage of a tormented victim to see a shift, but I have one purely legal point to raise. Is clause 5 in its current form going to be effective? Kenneth Clarke has certified that the provisions of the Bill are compatible with the European Convention on Human Rights. Can it be compatible when, by the combination of the defence under clause 5 and, say, lack of funding, the State offers a victim no redress? Article 8 rights (private and family life) are clearly relevant here; one can readily see a father losing contact rights, jobs being lost and privacy trashed as a result of online comments that remain uncorrected and are not removed. The existing defences for intermediaries, which include notice and take down procedures, bear those rights in mind. I think the absolute defence in clause 5 could well be deemed incompatible with the Convention.