What the Defamation Bill means for the Internet

The Defamation Bill published last week after the Queen’s Speech contains four clauses of especial significance for the internet:

  • Clause 5: a new defence for website operators in respect of anonymous third-party posts.  In essence this is designed to encourage website operators voluntarily to disclose identity and contact details of the author of an anonymous defamatory post.
  • Clause 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 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 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.

The most controversial and difficult of these provisions is Clause 5, which according to the government’s consultation response on the draft Bill was supposed to deliver a greater degree of protection against liability for intermediaries.

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