The Bill is now being considered by its Public Bill Committee, and it is possible to send in a submission with suggestions, evidence etc.; I think this is a good opportunity for the Pirate Party to use its available expertise in and understanding of the Internet etc. to try to make a difference. I would like us to submit some points on this clause, along with a draft amendment for replacing it. Ideally by Tuesday morning (when the committee first meets), if not a bit after. I will, however, need some help with this.
More details on the Defamations Bill's progress, including links to the second reading debate, can be found here.
More details on submissions to public bill committees can be found here.
===The Current Clause===
Defamation Bill 2012 wrote:5 Operators of websites
(1) This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website.
(2) It is a defence for the operator to show that it was not the operator who posted the statement on the website.
(3) The defence is defeated if the claimant shows that—
- it was not possible for the claimant to identify the person who posted the statement,
- the claimant gave the operator a notice of complaint in relation to the statement, and
- the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.
(4) A notice of complaint is a notice which—
- specifies the complainant’s name,
- sets out the statement concerned and explains why it is defamatory of the complainant,
- specifies where on the website the statement was posted, and
- contains such other information as may be specified in regulations.
(5) Regulations may—
- make provision 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);
- make provision specifying a time limit for the taking of any such action;
- make provision conferring on the court a discretion to treat action taken after the expiry of a time limit as having been taken before the expiry;
- make any other provision for the purposes of this section.
(6) Regulations under this section—
- may make different provision for different circumstances;
- are to be made by statutory instrument.
(7) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(8) In this section “regulations” means regulations made by the Secretary of State.
Basically, this gives a defence to website operators against defamation actions provided they can prove they didn't post the comment.
However, the defence is defeated iff:
- the claimant cannot identify the original poster,
- the claimant gives the website operator notice, and
- the website operator fails to comply with specific regulations that
haven't been published (even in draft).
In theory, as this only creates a new defence and so gives website owners greater protection, it is a good thing. However... it has some downsides, and could be a lot better.
- It only applies to websites, not the rest of the Internet. Apparently it is supposed to, but the drafters may not have known the difference. Even then, it is still technology-specific which is usually a bad idea. The defence should cover any sort of platform-providing service, online or offline.
- There is no definition of "website operator". As someone who runs a wordpress blog, am I the operator of the website (re defamatory comments), or is Wordpress?
- Legally it is a mess; it doesn't fit in with existing (or proposed new) defences or law. The circumstances when it would apply but no other defence would apply are fairly narrow and there will be many situations where this defence would not apply, but a website will still not be liable (either due to not being a publisher, or having immunity under the e-Commerce Directive limitations).
- Following that, it gives website operators a false impression, i.e. that they must comply with this law in order to be protected from defamation. The result of this could be to strongly discourage UK-based websites from allowing anonymous or pseudo-anonymous postings (and this seems to be the government's aim).
- There seems to be no justification for not applying it to anonymous comments other than that the Government doesn't like anonymity. There are good arguments (both moral and legal) for this being bad.
- Even if we accept the limitation, the bill does not define "identify"; it does not specify whether the identity must be obvious on the face of the post, or merely provided to a claimant by the website operator on request. It does not say what will be sufficient; an email address, real name, IP address? None are enough alone to properly identify an individual. Additionally, it does not specify whether the burden is on the website operator to ensure any information it gets is accurate. In short, this bit is full of holes and uncertainty.
- It creates a formal notice-and-takedown system. We know from experience with the US's copyright one that these are very bad things. Interestingly, when examining the issues of defamation online back in 2002, the Law Commission considered, but seemingly rejected such a system, suggesting instead that ISPs be granted complete immunity. They also recommended other changes, some of which are finally being discussed in Parliament now.
- It fails to go far enough in some situations, such as where the poster is identified, but cannot be reached legally (due to being outside the jurisdiction, dead etc.). There the website would be immune so the defamed party would be completely stuck.
- It also misses (or does not consider) situations where someone could post material to a website, but cannot then remove it (e.g. Slashdot comments); in such a case the author could continue to be liable for each view the statement receives, while the website is immune, despite the author having no control over it.
==A possible solution==
Given all the problems it is likely this clause will be amended for the final version. We should try to ensure that the final version is us-friendly. I propose that we suggest an amendment where;
- This defence applies to anyone who provides a public platform for posts (online or offline, but with some limits for when the website has full control, and exercises that control - such as with the main content, but not comments, on newspaper websites),
- This defence should apply whether or not it is possible to identify the author.
On top of this, due to concerns about defamatory material staying online etc., I would add a new clause that:
- Allows the High Court to order the removal or modification (such as adding a correction or reply) of unlawfully defamatory material from a public publishing platform (as defined above);
- Requires the court to consider, among other things, any applicable defences, and the importance of freedom of expression, etc.
- Allows the court to order the claimant to reimburse the website for any reasonable costs incurred in complying with the order,
- Limits liability in defamation for a statement subject to such an order so anyone originally liable for it can't be sued for subsequent views/publications.
However, while 'reasonable', this second part possibly goes against current Party policy which states that "we will not allow censorship of the Internet for anything except for in the most extreme circumstances."
===What I need help with===
What needs doing is turning all of this into a formal submission, and turning the proposals into legalese. Most of that shouldn't be too hard (and I've begun working on it) but what I really need help and ideas on is who should get immunity under this, and how to define them legally so that it covers everything we want it to cover, but doesn't cover anything else.
It would also be helpful to have any thoughts on my suggestions in general (and particularly on the modification order part), to make sure I haven't missed anything obvious or important.
Finally, it would be very useful to get thoughts and feedback from who would be affected by something like this; such as people who run websites or platforms that allow comment. Obviously this includes people within or outside the Party.
Anyone willing to help draft the final submission, send me a PM/email or find me on IRC.