The Defamation Bill published last week after the Queen’s Speech contains four clauses of especial significance for the internet: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. [s2If !is_user_logged_in()] Please log in to read the full article [/s2If] [s2If current_user_can(access_s2member_level1)] To achieve this aim, the Clause 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 by the conduit, caching and hosting safe harbours under the Electronic Commerce Directive . On the face of it Clause 5 offers no more than the existing defences, and in some important respects is less attractive. Further, a proper assessment of Clause 5 is hindered by the unsatisfactory device of leaving significant elements to be prescribed by secondary legislation. The clause reads as if the drafters gave up half way through and punted off the most difficult aspects to a statutory instrument. The most significant increase in protection for online intermediaries is in fact delivered by Clause 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 5 is controversial in singling out anonymous and pseudonymous speech for special attention. 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 to this 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 5. Here are some that are immediately apparent.
- 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.
Effect on common law publicationClause 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. 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 that 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 5 shares this vice with S1 of the Defamation Act 1996, which is framed in similar terms and provided 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 the law in this area has been built almost entirely on claims by litigants in person. It would be most unfortunate if the effect of Clause 5 were to render website operators potentially liable for publication of statements for which they may currently be able to argue that they are not publishers at common law. At the very least it should be explicitly stated that Clause 5 is without prejudice to any question of whether the defendant has published the statement at common law; and it would do no harm to take the opportunity to insert a similar provision in the 1996 Act.
What is a website operator?Clause 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 excess 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 gives no hint of what the thinking behind the drafting may have been.
Defeating the defence – inability to identify the identity of the posterThe Clause 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 legislationPresumably 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? What if the identity behind a pseudonym is apparent, to some degree of certainty, from material available elsewhere on the internet?