The Joint Committee on the Draft Defamation Bill have made long overdue proposals in respect of how the law deals with libel online recognising the “global issue” it represents but stating that this should not be “an excuse for inaction”.
A notice and take-down procedure is suggested. There are different procedures proposed depending on whether the authorship of the material is “identifiable” or “unidentified”.
1. Identifiable material
- Where a complaint is received by an internet host or ISP regarding material written by an “identifiable” author, the host/ ISP must immediately publish a notice of complaint alongside the content to avoid liability at that stage otherwise it can only rely on the usual defamation defences (e.g. truth or “honest comment”).
- The complainant must then apply to the Court for a “take-down order”. The Court will consider the written submissions from the author of the material and complainant on paper and make a decision which must be implemented swiftly thereafter.
2. Unidentified material
- Where a host/ ISP cannot identify the author of the content, then the material should be taken down upon request from a complainant unless the author responds positively to a request that they identify themselves.
- However, a host/ ISP may, if they regard there are public interest reasons to support the continued publication, apply to the Court for a “leave-up order”.
- In both of the above circumstances, the host/ ISP may avoid liability.
- If a complainant can establish the identity of the author (with assistance from the Courts, ISPs or hosts) then they may take action against them.
- It is also stated that material which is unidentified should be capable of being relied upon in defamation actions by claimants or defendants.
The Committee acknowledge that the proposals to deal with internet libel are not ideal but state that the notice procedure will “help promote a culture which downgrades the credibility of anonymous online material”.
The Committee also suggests that measures should be implemented to “encourage a change in culture in the way we view anonymous material that is user-generated, including via social media”.
Conclusion
This is one of the most troublesome areas in terms of regulating the media with it necessary to protect both the rights of those being written about whilst also not seeking to impose unreasonable restraints on hosts/ ISPs who are unlikely to be in a position to properly judge the content.
The distinction between authors who can identified and those who cannot appears to be a logical one. However, the burden on the Claimant to apply to the Court for a “take-down” order where an author of material is identifiable is potentially an onerous one and, despite the aims, the costs of the procedure are likely to be considerable. It also arguably represents a shift in the burden of proof from author to complainant.
For further information please contact Chris Hucthings on 0207 355 6104 or e-mail: chutchings@hamlins.co.uk or Callum Galbraith on 0207 355 6033 or e-mail: cgalbraith@hamlins.co.uk