[Note: This post has been updated following Royal Assent to the Defamation Bill on 25 April 2013. The Bill is now the Defamation Act 2013. Most of the Act is not yet in force. None of the provisions discussed below will apply to Scotland. The Act does not apply to Northern Ireland.]
The Defamation Bill Act 2013 published last week after the Queen’s
Speech contains four clauses five sections of especial significance for the internet:
- Clause Section 5: a new defence for website operators in
respect of third party posts. In
essence this significantly enhances website operators' protection for posts by identifiable posters; and is also designed to encourage website operators voluntarily to disclose
to defamation complainants identity and contact details of the author of an anonymous defamatory post.
- Clause Section 8: a single publication rule for purpose
of time-barring defamation actions. This
will protect internet republications and archives. Some legislative action in this area was
inevitable following the 2009 decision of the European Court of Human Rights in
the Times v UK case.
- Clause Section 9: a forum bar on defamation actions
against defendants domiciled outside the EU or EEA, unless of all places in
which the statement has been published, England and Wales is clearly the most
appropriate place in which to bring an action.
While this is framed as a general restriction on forum-shopping, it will
have especial impact on actions founded on the mere accessibility of a foreign
internet publication in England and Wales.
- Clause Section 10: a bar on defamation actions against secondary
publishers unless it is not reasonably practicable to proceed against the
author, editor (if any) or commercial publisher (if any). Although mainly presented as a defence for
booksellers, this clause will also benefit online intermediaries.
- [Update] Section 13: the court is empowered, where it gives judgment for the claimant in a defamation action, to order the operator of a website on which the defamatory statement is posted to remove the statement; and to order certain secondary publishers to stop distributing, selling or exhibiting material containing the statement. This section was introduced during passage of the Bill through Parliament. The terms of any proposed order against a website would have to be considered in the light of the prohibition in Article 15 of the Electronic Commerce Directive on placing general monitoring obligations on hosting intermediaries.
The most controversial and difficult of these provisions is
Clause section 5, which according to the government’s consultation response on the
draft Bill was to deliver a greater degree of protection against
liability for intermediaries.
To achieve this aim, the Clause section 5 defence would have to be
significantly more attractive to online intermediaries than the defences
already provided by S1 of the Defamation Act 1996 and (other than for injunctions) by the conduit, caching and hosting safe harbours under the Electronic Commerce Directive.
For identifiable posts
Clause section 5 does provide significantly greater protection than existing defences, since the defence is not defeated by any degree of knowledge so long as the operator can show that it did not post the statement [Update] and the claimant cannot show that the operator acted with malice in relation to the posting. However this may raise a question (which would also apply to non-identifiable posts) as to when
moderation (which under section 5(12) does not of itself defeat the defence) strays from knowledge into participation in posting.
For anonymous or pseudonymous posts, on the face of it Clause Section 5 mostly offers no more than the existing defences, and in some important respects is less attractive. A proper assessment of the effect of Clause section 5 on anonymous and pseudonymous posts is hindered by the unsatisfactory device of leaving significant elements to be prescribed by secondary legislation. The clause section reads as if the drafters gave up half way through and punted off the most difficult aspects to a statutory instrument.
[Update] Despite calls for the government to publish draft regulations during the passage of the Bill, this did not occur. Indications of the government's thinking can be gleaned from the informal consultation among interested parties conducted by the Ministry of Justice at the start of 2013.
Identifiable posts apart, the most significant increase in protection for online intermediaries
is in fact delivered by Clause Section 10, which should make it much more difficult to
proceed against online intermediaries rather than the primary perpetrators of
the libel.
Apart from its impact on website operators, Clause section 5 is controversial in singling out anonymous and pseudonymous speech for special treatment. The justification for this is said to be that people who defame others should not be able to hide behind a cloak of anonymity.
However, taken in isolation this
is mere sloganeering. Any serious
policy-making has to take into account the benefits of anonymous and
pseudonymous speech, including speech which someone aggrieved (and let’s not
forget that libel claimants can be notoriously thin-skinned) may consider
to be defamatory, even with the new threshold of ‘serious harm to reputation’. Anyone who heard Rowan Davies of Mumsnet
speak at the Westminster Legal Policy Forum on 15 March 2012 could
hardly doubt the value of anonymous speech.
At a detailed level there are more reasons to be concerned
about Clause section 5. Here are some that are
immediately apparent.
Effect on common law publication
Clause Section 5 applies where an action for defamation is brought against a website operator in respect of a statement posted on the website. It provides for a defence where the website operator can show that it did not post the statement on the
website.
[Update] Section 5(11), introduced during the passage of the Bill, provides that the defence is defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned. The Explanatory Notes to the Act give the example of where the
website operator had incited the poster to make the posting or had otherwise
colluded with the poster.
Since the provision is cast as a defence, it presupposes
that a website operator would otherwise be at risk of liability for publishing
a third party post. However this is
contrary to the trend of the most recent defamation caselaw on liability for
publication, namely Tamiz v Google.
That
case (which is understood to be under appeal) held found on appeal that (at least prior to notification of the existence of the defamatory statement) Google was not a publisher of comments to a blog hosted on its Blogger platform. Not only is someone who is not a publisher in
no need of a defence, but a defence reverses the burden of proof. It is for the claimant to prove that the
defendant published the statement, whereas an affirmative defence places the
burden on the defendant.
Clause Section 5 shares this vice with S1 of the Defamation Act 1996, which is structured in similar terms and provides a defence for various secondary publishers, some of whom (such as conduits) would almost certainly not have been regarded as publishers at common law.
It is true that no-one to date has argued that the terms of the 1996 Act
broadened or should influence the class of those taken to be publishers at
common law, but then until Tamiz v Google in the Court of Appeal the recent law in this area had been built almost entirely on
claims by litigants in person.
It would be most unfortunate if the effect of Clause section 5 were to
render website operators or other intermediaries potentially liable for publication of statements for
which they may currently be able to argue that they are not publishers at
common law. At least it should be have been
explicitly stated that Clause Section 5 does not affect any question of whether
the defendant has published the statement at common law; and it would do have done no
harm to take the opportunity to insert a similar provision in the 1996 Act. It is doubtful whether
Clause 14 Section 15, stating that publish and publication have the meaning they have for
the purposes of defamation law generally, is sufficient.
What is a website operator?
Clause Section 5 is silent as to what is meant by a website, or the operator of a website. This is understandable to an extent, since attempts to define such terms are liable to be overly technology-specific and to create uncertainty through excessive precision (see Professor Chris Reed’s new book Making Laws for Cyberspace for an excellent discussion of these
pitfalls). However the terms ‘website’ and
‘operator’ are themselves hardly models of precision or certainty.
We can think of a core set of examples that will fall within the provision. A business website with a discussion forum would be one. A site such as Mumsnet would also be a good candidate.
But what about, say, the Blogger platform considered in Tamiz v Google and Davison v Habeeb? Is the Blogger
platform a website? Is an individual
blog hosted on the platform a website? If
so who is the operator: Google, the blogger, both? Is Facebook a website? Is Twitter a website? Is World of Warcraft a website? We could go on. The clause section gives no hint of what the thinking
behind the drafting may have been.
[Update] During the passage of the Bill an amendment was tabled in the House of Lords to replace 'website' with 'electronic platform'. Responding for the government, Lord Ahmad of Wimbledon said on 15 Jan 2013: “The purpose of Clause 5 is to provide a defence to website operators that host third party content over which they exercise no editorial control. ... If in further
discussion in Committee or at Report a form of technology is brought to our
attention that is akin to a website and serves the same purpose in hosting
third-party content, and a suitable form of words can be found adequately to
describe that in legislation, the Government are open to considering that point
further.” No change was made.
Defeating the defence –
inability to identify the poster
The section 5 defence is defeated if the claimant can show
three things:
1.
That it was not possible for the claimant to
identify the person who posted the statement
2.
The claimant gave the website operator a notice
of complaint (containing various specified information); and
3.
The website operator failed to respond to the
notice of complaint in accordance with regulations to be made under secondary
legislation
So if the claimant is able
to identify the person who posted the statement, then the defence cannot be
defeated regardless of whether the operator had knowledge of the defamatory or
actionable nature of the posting. This is a significant enhancement over
existing defences since it avoids website operators being put in the invidious
position of acting as judge and jury over third party statements alleged to be
defamatory.
[Update] The introduction of the malice exception in Section 5(11) may render this less of a 'bright line' defence, since there may be room for debate about where the lines are between participation in a post, moderation of posts and malice in relation to a post.
Presumably the inability of the claimant to identify the person posting the statement is to be assessed by reference to the information available on the site, rather than taking into account e.g. the possibility of making a Norwich Pharmacal application against the
website operator to ascertain this. However
nothing is said about what constitutes ‘identity’. Does a pseudonym or an alias qualify? Or does the clause only bite on anonymous
speech? But what if the identity behind a
pseudonym is apparent, to some degree of certainty, from material available
elsewhere on the internet?
[Update] Section 5(4), introduced during the passage of the Bill, provides that it is possible for a claimant to 'identify' a person only if the claimant has sufficient information to bring proceedings against the person.
Defeating the defence –
notice of complaint
A notice of complaint in respect of a post by a non-identifiable poster has to specify the complainant’s name,
specify where on the website the statement was posted and contain such other
information as may be specified in regulations (why leave this to secondary
legislation?).
Most importantly, the notice must set out the statement
concerned and explain why it is defamatory of the complainant.
Under Clause section 5 the complainant has only to explain why the
statement is defamatory, not why it is actionable. Actionability brings into play possible defences
such as (as reframed under the Bill Act) truth, honest opinion, responsible
publication on matters of public interest and so on.
Since this is a notice to which a
website operator has to consider how to respond, why should the notice not be required to address the
whole context? It is unclear why a
website operator should potentially be encouraged to reveal identity details or take down a post, even an anonymous
post, on the basis of only half the story.
In this respect the provision repeats a feature of
the 1996 Act secondary publisher defence, but which is absent in the Electronic Commerce
Directive hosting exception which refers to knowledge of illegality.
On the other hand it appears that prior knowledge of the defamatory or illegal nature of the post would not defeat the Clause section 5 defence, so long as the website did not post the statement (see comments above regarding moderation [and malice]) and upon receipt of a notice complying with the Clause section 5 requirements [or possibly in some cases a non-compliant notice] follows the procedure laid down in Clause section 5 and the regulations.
[Update] See update comments above regarding the introduction of section 5(11) concerning malice. The regulation-making powers were expanded during passage of the Bill to allow the regulations to address circumstances in which the website operator receives a notice that does not comply with the specific requirements of a notice of complaint. This is thought to be so that regulations can 'require' (i.e. as a condition of being able to rely on the defence) a website operator to revert to the giver of the notice and explain what is required for a valid notice.
Defeating the defence –
the website operator’s response
The government consultation response proposed that on receipt of a
notice of complaint in respect of a non-identifiable poster, the intermediary would have to contact the author of the
material or, if this did not prove possible, take the posting down. If the matter remained in dispute after an
exchange of correspondence, the intermediary would be required to provide
details of the author to the complainant, who would then have to sue the author
to secure removal of the material and could not pursue an action against the
intermediary.
One attraction of this proposal to intermediaries would have
been that, having initially acted as a liaison and then having provided
identity and contact details to the complainant, the intermediary was out of
the picture even if the disputed posting stayed on the website. The existing defences under the 1996 Act and
the Electronic Commerce Directive hosting exemption provide no route to safety
other than taking down the allegedly offending material.
However, rather than clearly implement this escape route the
Bill Act leaves it to secondary legislation, giving the government an
unsettlingly wide range of future options.
The Bill Act merely provides that Regulations may make provision including “as
to the action required to be taken by an operator of a website in response to a
notice of complaint (which may in particular include action relating to the
identity or contact details of the person who posted the statement and action
relating to its removal)”. There is no
suggestion here that taking down the posting would occur only if the intermediary
could not contact the poster of the material.
Why is a new route to disclosure
of identity needed at all?
A troubling aspect of the provisions regarding non-identifiable posts is why, when there is
already a widely used judicial route (the Norwich
Pharmacal order) to obtaining the identity of anonymous posters of
defamatory material, any of this is necessary at all. The court is uniquely able to balance
competing considerations of reputational harm, privacy and freedom of speech. So, for instance, in Sheffield Wednesday Football Club Ltd and Others v Hargreaves the
court refused to order disclosure of identities for posts that it regarded as bordering
on the trivial, saloon-bar moanings, or mild abuse, even if arguably defamatory.
The procedure under Clause Section 5 would, on the face of it, throw
this balancing exercise back on website operators, or encourage them
to reveal identity and contact details without regard to broader
considerations, simply in order to preserve their own liability position. It is difficult to see how this can serve a wider
interest. It may also not comply with EU
law as interpreted in the Promusicae
and Bonnier Audio ECJ decisions, even allowing
for the generous latitude to Member States granted by those decisions.
The government consultation response stated that there would
“be a need to ensure that appropriate safeguards were in place relating to the
releasing of details of the author of the material to the complainant, taking
into account concerns such as those expressed by the Committee in relation to whistleblowers.” None of this is contained in Clause Section 5. If it is intended to be addressed in
secondary legislation, is that the right place to deal with issues of such
importance?
What does ‘required’
mean?
As set out above, Clause Section 5 provides that Regulations may make
provision as to action ‘required’ to be taken by a website operator in response
to a notice of complaint in respect of a non-identifiable poster. Since this is
all in the context of defeating the defence provided by Clause Section 5, it is to be
hoped that ‘required’ means no more than ‘required in order for the operator to
rely on the defence’. However [Although] this is not explicitly stated, it does appear from the MoJ informal consultation on the possible content of regulations that . If the intention is that the only consequence
is that the operator be unable to rely on the Clause Section 5 defence, then ‘required’
is ambiguous and should be revisited.
If the intention is that a website operator should be
subject to other sanctions if it does not do what is required, then that should
be made explicit so that it can be fully debated and, it is to be hoped,
rejected.
The notion that a website operator could be compelled to disclose
third party identity and contact details, or face sanctions for not doing so,
merely through receipt of a notice alleging defamation, with no opportunity for
a court to review the full circumstances and exercise its discretion, would [have been] be highly controversial and quite likely contrary to Promusicae
and Bonnier.
It is questionable whether a website
should even be encouraged voluntarily to disclose such
details through the threat of losing the benefit of this new defence. At any rate the
operator’s ability to rely on other existing defences, and to argue that it has
not published at common law, would need to be fully preserved.
How does Clause 5
interact with Clause 10?
Clause 10 provides that a
court does not have jurisdiction to hear and determine an action for defamation
against a person who is not the author, editor or publisher (i.e. commercial publisher
- all as defined in the 1996 Act) of the statement unless the court is
satisfied that it is not reasonably practicable for an action to be brought
against the author, editor or commercial publisher.
It is interesting to speculate on whether a
website operator’s decision not to respond to a notice under Clause 5 would be
held against it in the court’s evaluation of reasonable practicability, even
though it is open to the claimant to pursue a Norwich Pharmacal application against the website operator to disclose
the identity of the author. Given all
the problems with Clause 5, it is to be hoped not.
[Updated 11.30pm 13 May
2012 to add material re identifiable posters and prior knowledge; further
polishing at various times on 14 and 15 May 2012; updated following Royal Assent on 4 May 2013.]
