The Defamation Bill: A Fair Balance?

The Defamation Bill includes proposals of major interest to many advising web sites and involved in any form of hosting and publishing online. Andrew Tibber looks at the crucial proposals.

While measures to promote economic growth and regulate the banks grabbed the headlines, this year's Queen's Speech also heralded the Government's intention to enact long-awaited reforms to the law of defamation.

The Defamation Bill is the Government's response to mounting concerns that have been expressed at the state of English and Welsh libel law. As well as dealing with issues such as 'libel tourism' and the right to trial by jury, the Bill is intended to reform defamation laws so that they strike a fair balance between the right of people that have been defamed to take action to protect their reputation where appropriate, and the right of people to speak and express themselves freely without being unjustifiably impeded by actual or threatened defamation proceedings.

The focus of this article is on three provisions of the Bill which will be of particular interest to those hosting and publishing information online.

1                 Requirement of Serious Harm

Clause 1 of the Bill provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

The original wording of the draft Bill was 'substantial harm' rather than 'serious harm', reflecting the development of a threshold of seriousness in the common law of libel. However, following consultation, the wording was amended to raise the bar for bringing a claim to the higher standard of 'serious harm' to give greater confidence to publishers that statements which do not cause significant harm, such as parody and irreverent criticism, do not put them at risk of losing a libel claim. The wording would also give due allowance to the nature of the charge, prompt apologies, the width of publication and any other relevant background.

The courts are already inclined to give less weight to defamatory comments online, with some bulletin board postings complained of being dismissed as 'jokes', 'saloon bar moanings'[1] or 'mere vulgar abuse'[2].

The statutory threshold introduced by the Bill is likely to make it increasingly difficult to establish that such postings are defamatory.

2                 Protection for Web Site Operators

Background

The Report of the Joint Committee on the Draft Defamation Bill (HL Paper 203/HC 930-I, 19 October 2011) was highly critical of the current law governing the legal liability of internet hosts and service providers for defamatory material that is posted by online users.

The Joint Committee proceeded on the basis that online fora and hosts ('secondary publishers') are liable for statements made by their users ('primary publishers') where they fail to take down material once they know that it may contain a defamatory allegation. This is because the defences that are available to secondary publishers under s 1 of the Defamation Act 1996 and the Electronic Commerce (EC Directive) Regulations 2002 do not apply once the secondary publisher has actual knowledge of the defamatory material.

(In fact, recent case-law suggests that some intermediaries such as Google may not be liable at all as either primary or secondary publisher for material posted on their web sites - see, eg, 'Goodbye Godfrey, Hello Tamiz', Graham Smith, Computers & Law, Vol 23, Issue 1.)

The result is that secondary publishers often choose not to moderate material on their web sites, so as to avoid actual knowledge, and then are quick to remove such material if they receive a complaint from an aggrieved party, whatever the merits of the complaint. As the Joint Committee put it:

'As the law stands, far from encouraging service providers to foster legitimate debate in a responsible manner and removing the most extreme material, it encourages them to ignore any dubious material but then to remove it without question following a complaint. This is contrary to the public interest and an unacceptable state of affairs.'

The Joint Committee's recommendation to the Government was to introduce a notice and take-down procedure distinguishing between material that is identifiable in terms of authorship and unidentified material.

For identifiable material, the proposal was that for the host or service provider to avoid liability for the publication, it would have to publish any notice of complaint received next to the material in question. The complainant would then have to apply to court to take-down the material, with the author duly notified and able to make representations in response.

For unidentified material, the Committee recommended that, in order to avoid liability, the host or service provider should take down the material on receipt of a complaint, unless the author responds promptly to a request to identify themselves (in which case the identifiable material procedure would apply). The service provider would be able to apply to a judge for an exemption to the take-down procedure and secure a 'leave-up' order in cases where public interest justified continued publication (for example, if a whistle-blower was the source).

This two-stage procedure was recommended to apply to both moderated and unmoderated web sites, thereby removing the existing disincentive to online hosts to moderate sites.

The Clause 5 Defence

Clause 5 of the Bill only partially implements these proposals. It provides that, where an action for defamation is brought against the operator of a web site in respect of a statement posted on that web site, it will be a defence for the operator to show that it was not the operator who posted the statement on the web site.

It also provides that, for unidentified material, in order to avoid liability the operator will need to respond to any notice of complaint received 'in accordance with any provision contained in regulations'.

The regulations themselves do not yet exist, and will be made by statutory instrument. According to the Bill, they 'may' contain provisions relating to the action required to be taken by the operator, including action relating to the identity of the author and action relating to removal of the material. The regulations may also 'make different provision for different circumstances'.

The devil will certainly be in the detail, but the Government's Response to the Report of the Joint Committee on the Draft Defamation Bill (Cm 8295) gives some indication of what those regulations may contain. The preferred outline solution for unidentified material is for the web site operator, on receipt of a notice of complaint, to contact the author (and if this was not possible to take the material down). The web site operator would be expected to enter into initial correspondence with the author, but if this did not resolve the issue, to forward the author's contact details to the complainant, who could then if necessary take legal proceedings. Issues such as time-limits and safeguards for whistle-blowers are to be the subject of further discussions and impact assessments. The Government is not in favour of the proposal for intermediaries to be able to apply for 'leave-up' orders.

As for identifiable material, it is clear from the face of the Bill that the Government has rejected the Joint Committee's proposals entirely. According to its Response to the Joint Committee, the Government considered there were 'practical and technical' difficulties in publishing a notice of complaint alongside the allegedly defamatory material (the main examples cited relating to consideration of the precise location of the notice, when the material in question is embedded within a number of different sites or where the material is contained within a video or sound recording.) The Government is apparently content that where an author is identifiable, complainants should pursue a remedy directly with them, and if that fails, seek redress through the court.

Assessment

The clause 5 defence appears to significantly broaden the protection for web site operators from liability for publication of defamatory material. However, leaving aside the detail of the regulations, other questions remain about the interpretation of the provision.

As explained above, the defence will be defeated 'if it was not possible for the claimant to identify the person who posted the statement', the claimant has given the operator a notice of complaint and the operator has failed to respond in accordance with applicable regulations. But what does 'it was not possible' mean?

For example, where an author uses an online pseudonym and is not therefore immediately identifiable, it may be possible for a claimant to identify the author by applying for a Norwich Pharmacal order against the web site operator. In such circumstances, does the web site operator have to comply with a notice of complaint received or not? Amendments to the drafting appear to be required to clarify this.

As for would-be claimants, the defence is undoubtedly bad news. Web site operators and hosts are often the preferred target for complaints about defamatory material, because they are often located within the jurisdiction whereas the author is not, because writing to them avoids the need to confront the author directly (which can often aggravate the problem) and because this approach often produces a quick, cheap and effective resolution (ie takedown or amendment of the offending material).

In some respects, it can be argued that the Government's proposed solution has actually made the problem identified by the Joint Committee worse. Online intermediaries will now be able to publish identifiable 'extreme' and 'dubious' material with impunity, and it is going to become much harder and more expensive for claimants to get it removed.

3                 The Single Publication Rule

Under s 4A of the Limitation Act 1980, no action for libel or slander can be brought after a year has passed from the date of publication of the offending statement. As a new cause of action attaches to each publication of defamatory material, a one-year limitation period runs for each new publication of that material. This is known as the 'multiple publication rule'.

The rule was not particularly controversial when the main form of publication was print, other than relating to the sale of back copies long after the publication of the original edition. However, for online publications, the practical effect of the rule is that the one-year period restarts each time a web page is viewed. As a result, the online publisher's liability for libel lasts potentially for so long as the material in question remains accessible on the site.

The Government Consultation on the Draft Defamation Bill (CP3/11) acknowledged that the multiple publication rule was unsuitable 'for the modern internet age.' Accordingly, clause 8 of the Bill introduces a 'single publication rule' to address this problem.

Under the rule, there is a one-year time limitation period which begins to run from the first publication of defamatory content. Subsequent publications of the same statement, or a statement which is 'substantially the same', will be actionable only to the extent that they fall within this time-limit.

Clause 8, as drafted, applies the single publication rule only to the subsequent publication of the same material by the same publisher. The Joint Committee wanted to extend the scope of the single publication rule to any publisher of the same material. This was rejected by the Government on the basis that it would provide claimants with insufficient recourse against those making defamatory statements. However, the Government did recognise the potential injustice that could be caused if a second publisher produces a fair and accurate copy of the original material. Instead of an extension of the single publication rule, the Government promised further consideration into the possibility of extending qualified privilege to protect the second publisher in such circumstances.

The single publication rule does not apply where the manner of a subsequent publication is 'materially different' from the manner of the first publication, having regard to the level of prominence that a statement is given, and the extent of the subsequent publication.

In its Response to the Joint Committee, the Government resisted calls to provide firm examples of what constitutes publication in a materially different manner. Instead the Response helpfully states that the test is 'best left to the courts to determine in individual cases.' However, the explanatory notes accompanying the Bill suggest that where a story was originally published relatively obscurely on a web site but is later promoted to a section of the site accessible via a link on the home page, increasing considerably the number of hits it receives, that could be a materially different manner of publication. A further example is given in the Consultation Paper which refers to an article initially being available in a subscription-based journal later being made available free of charge.

Notwithstanding the proposed introduction of the rule, the court will retain its discretion to extend the one-year limitation period if it considers it equitable in all of the circumstances. However, this discretion is likely to be exercised sparingly.

4                 Conclusion

The proposed introduction of a statutory threshold of serious harm, a single publication rule and wide-ranging exemption of liability for web hosts and intermediaries will undoubtedly be welcomed by primary and secondary publishers, and will help to protect free speech and freedom of expression on matters of public interest on online fora and blogs. However, 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. 

Andrew Tibber is a Senior Associate, Burges Salmon LLP



[1] Sheffield Wednesday FC and Others v Hargreaves [2007] EWHC 2375 (QB)

[2] Smith v ADVFN [2008] EWHC 1797 (QB)

Published: 2012-05-28T17:40:08

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