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Allegedly defamatory comments from named authors should stay online, say MPs

Out-Law News | 20 Oct 2011 | 2:28 pm | 4 min. read

Web hosts and ISPs should be allowed to keep allegedly defamatory comments online as long as the author of the comment is identified and a notice of complaint is published alongside the comment, a Parliamentary committee has recommended.

Under the proposal it would be up to a judge to decide if the comments should be taken down. Anonymous comments would be taken down immediately unless the author identifies himself or herself, in which case the complaint notice would be published and a judge would decide onthe fate of the comment.

The system has been suggested by a joint Parliamentary committee reviewing proposed new UK defamation laws. The Joint Committee On The Defamation Bill said that a "cultural shift" is needed in how anonymous internet postings are viewed.

"We expect, and wish to promote, a cultural shift towards a general recognition that unidentified postings are not to be treated as true, reliable or trustworthy," the committee said in its review of the Bill. "The desired outcome to be achieved—albeit not immediately—should be that they are ignored or not regarded as credible unless the author is willing to justify or defend what they have written by disclosing his or her identity."

Web hosts and ISPs currently have to remove comments immediately if they are informed that the comments are defamatory or risk being liable for that defamation.

The new plans would absolve them of that liability if they posted notice that a comment from a named person had been complained about and removed comments that came from anonymous posters.

Under the committee's proposals web hosts or ISPs that receive complaints about an anonymously-posted comment would have to remove it "unless the author promptly responds positively to a request to identify themselves" or unless the ISP believes that the material should remain on the site because it is in the public interest.

ISPs or hosts would have to post a "notice of complaint" beside a contested post from an identified author. The complaints notice "reduces the sting of the alleged libel but protects free speech by not requiring the host or service provider to remove what has been said," the committee said.

Individuals who complain could then apply to the courts for an order that would force the host or ISP to immediately take down the offending material or become liable for defamation themselves, it said.

"We recommend that any material written by an unidentified person should be taken down by the host or service provider upon receipt of complaint, unless the author promptly responds positively to a request to identify themselves, in which case a notice of complaint should be attached," the committee's Defamation Bill review said.

"If the internet service provider believes that there are significant reasons of public interest that justify publishing the unidentified material—for example, if a whistle-blower is the source—it should have the right to apply to a judge for an exemption from the take-down procedure and secure a 'leave-up' order. We do not believe that the host or service provider should be liable for anonymous material provided it has complied with the above requirements," it said.

The committee said anonymous authors of comments can be sued for defamation if they can be identified, and that hosts or ISPs that refuse to take down anonymous material could also be sued.

"If a person who has been defamed can go on to establish the identity of the author (with the help of the courts, online host or service providers) then they may take action against the author in order to pursue a legal remedy for the harm that they have suffered," the committee said.

"Where this is not possible, we believe that the law should provide that ordinarily internet material from unidentified sources may not be relied upon by a defendant or claimant in defamation proceedings. Any host or service provider who refuses to take-down anonymous material should be treated as its publisher and face the risk of libel proceedings, subject to the standard defences and our proposals relating to leave up orders," it said.

Secondary publishers can avoid liability for defamation under defence provisions detailed in the UK's E-Commerce Regulations. The Regulations state that generally secondary publishers are not liable for any material if it acts as a mere conduit or caches or hosts the material.

Service providers that do not initiate the transmission of defamatory comments, do not select who receives the comments or do not select or modify information in the transmission of the comments are not liable under the mere conduit defence.

In order to avoid any liability for unlawful material, the service provider also must, upon gaining 'actual knowledge' that the initial source has been removed or access to it has been disabled, act 'expeditiously' to ensure that the information is deleted or access to it disabled.

The MPs said they wanted to "correct the existing disincentive" for website operators to actively moderate their sites by applying the new "notice and take-down procedure" equally to both moderated and unmoderated sites.

"To achieve this, the Government will need to reform the Defamation Act 1996 to the effect that secondary publishers – such as internet hosts or service providers – shall not be treated as becoming liable for allegedly defamatory statements solely by virtue of having moderated the material or the site more generally," the committee's review said.

"Liability should be determined by the way in which the host or service provider responds to a request for a defamation notice or a take-down order," it said.

The committee also called for a time limit of up to one year following the publication of online comments in which defamation claims can be brought.

"A defamation claim must be brought within one year of the relevant material being published to prevent the publisher facing open-ended liability for what was said in the past," it said.

The committee admitted that its proposals were not "advancing an ideal solution, still less an instant one" but said placing less credit on anonymously posted comments would "minimise the damage inflicted by the mischievous and the malicious".

"Our aspiration is that, over time, people will pay less attention to and take less notice of material which is anonymous," it said.

The committee called on the Government to include its recommended changes in the new Defamation Bill and called for the Ministry of Justice to issue guidance on how to deal with complaints about online material.

The Government published a draft Defamation Bill in March proposing that comments would have to have caused substantial harm in order for it to be labelled as defamatory. Journalists would also be able to rely on the defence that they published responsibly and in the public interest in defamation cases, the draft Bill said.

Individuals accused of making defamatory comments could also rely on claims that they were expressing a fact or an honest opinion, under the Bill's proposals.