Defamation and the Internet - Contact your MP Now!
22nd June 2012 01:00 | by Will Tovey
After many years of campaigning, Parliament is finally debating a new Defamation Bill. Defamation (covering libel and slander) is about protecting a person's reputation, and balancing that right against the general freedom of expression. Over the last few years English libel law has become infamous around the world for its chilling effect on free speech, ease of use to silence criticism (informal, political and academic) and its disproportionate costs.
The new Bill attempts to tackle some of these issues. But while it is a step in the right direction, it mainly codifies the existing law rather than significantly improving it. There are still some major problems with the current text and while it is being debated in the House of Commons we have a chance to try to fix it before it becomes law. To do this, we need you to write to your MP, highlighting the major problems. If nothing else, please ask them to read through the memorandum the Party submitted to the Public Bill Committee, the key points of which are outlined below.
There are two main areas of concern with the current Bill; the missing clause on corporations and the new defence for website operators.
Under the current law, "non-natural persons" or companies have the same ability to sue for libel as real people, despite defamation supposedly being about protecting an individual's personal reputation and human right to respect for private life. The Joint Parliamentary Committee that reviewed a draft of this bill recommended including restrictions on the ability of companies to bring libel cases, most importantly, requiring that they get permission from a court before taking any action. The Government removed this section from the final bill, and it is vital that it be returned, particularly to limit how easily libel threats can be used to silence legitimate criticism.
One of the things the Government added into the bill was a clause designed to protect websites from being sued for libellous material posted on them. While this may seem like a good thing, making running websites safer, the way this is being implemented could have the opposite effect. Unfortunately the bulk of this defence is left to regulations, to be added by the Government at a later stage, and while the MPs on the committee have some idea what this will include, there is little publicly available information on it.
The current clause provides a general defence to website operators, protecting them from libel actions over comments and posts on their websites, but written by third parties. However, this defence would fail if the original author was unidentifiable, and the claimant went through a notice-and-takedown procedure, the details of which are being left to the regulations.
The first obvious flaw with this defence is that it applies only to "websites operators", without specifying what a website is. While Labour tried to pass an amendment defining it to cover "a web host, an operator of a social media site, an operator of a search engine or any other information society service provider", the Government rejected this, saying that the term did not need to be defined. Even if it is meant to be interpreted broadly - covering email, newsgroups, IRC and so on - it is unclear why Parliament is singling out a particular protocol or technology. By broadening this beyond websites to any public publishing platform, we can ensure that this law not only protects what it should protect now, but also protects future technologies.
The second big problem is that it could give website operators the wrong impression. By having a detailed, legalistic procedure for removing libellous comments, website operators and moderators may think that they have to comply with it (or face massive legal costs). In reality, there are a number of other defences or limitations protecting websites from being sued for defamation, not least a recent case that found websites had to take some "positive step" in keeping the material available for them to even considered liable in the first place, before considering any defences. Given that most websites are not run by lawyers or experts in defamation law, it is unlikely they will be aware of this, and could feel threatened enough to ban anonymous comments completely (or move their sites out of the country).
The final major issue is the unjustifiable limitation to identifiable authors. While it is understandable that people would want to ensure they have someone to blame (or sue), the practical ability to sue one person should not have an effect on whether another person is to blame. Most of the debates so far on this issue have focused on abusive or bullying behaviour online (described as "trolling"). The fear, uncertainty and lack of understanding around this sort of behaviour is being used to support this restriction to freedom of speech, even though most bullying behaviour is likely to be covered by the wide array of criminal laws (particularly if something as innocent as a joke about an airport is sufficiently menacing to result in a conviction), and if not, will probably fall outside the scope of defamation one way or another. Bullying (online or offline) may be a serious issue, but it is not particularly relevant to defamation and so should not be used as a justification for such a direct attack on anonymity.
What we can do
The best thing to do now is to write to your MP, making them aware that this is a major issue. This is particularly important if they are on the committee currently examining the bill (a list of the relevant MPs can be found on the committee page). Please raise some of the issues mentioned above, or ask them to consider the more detailed points in the Pirate Party's written submission (which they should have all received).
If you are able to attend, the Libel Reform campaign are holding a "mass lobby" at Parliament on Wednesday morning, next week (27th June). This is after the last of the committee meetings, but before the House of Commons has to vote on the bill. The Libel Reform campaign has a similar (but not identical) concerns to those listed by the Pirate Party, although their focus is more on including a broad "public interest" defence, rather than the specific dangers threatening free speech online.
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