ISPs could act as 'liaison' in online defamation disputes, Government announces

Out-Law News | 06 Mar 2012 | 4:28 pm | 4 min. read

Internet service providers (ISPs) and other "online intermediaries" could be forced to act as go-betweens in defamation disputes on the internet in a bid to resolve cases before they reach court, the Government has said.

In a response to a joint Parliamentary committee's analysis of its draft Defamation Bill, the Government said the intermediaries would act as a "liaison point" between the authors of comments and their subjects who were making allegations of defamation in cases where the author's identity is unknown to the person complaining.

They would be required to pass correspondence between the disputing parties during an "initial exchange" in a bid to help resolve disputes, and could avoid legal action being taken against them for the comments if they follow other procedures. 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.

"Upon receipt of a notice of complaint, the intermediary would have to contact the author of the material (or if this did not prove possible, take the posting down)," the Government said in responding (36-page / 129KB PDF) to a committee of MPs' recommendations on libel reforms. "If after an initial exchange of correspondence the issue remained in dispute, the intermediary would be required to provide details of the author to the complainant, who would then have to initiate legal proceedings against him or her to secure removal of the material (if the matter could not be resolved by other means), and could not pursue an action against the intermediary."

The Government said the "approach" could help cut the number of defamation cases that reach court but said "a number of issues" had to be resolved in order for the system to work. The "initial liaison" would have to be "strictly time limited". If disputes could not be resolved and it required a court order to remove material, those cases would need to handled under more speedy court processes, it said. In addition, proper "safeguards" would have to be in place to protect whistleblowers being identified.

The Government said it would consult on a potential framework with a view to drafting legislative provisions in a revised Defamation Bill to introduce it.

"On balance we consider that this option may provide the most practical and effective way of offering greater protection to online intermediaries and aiding free speech, while enabling claimants to protect their reputation by securing removal of defamatory material without undue delay," the Government said.

"We will discuss this option further with interested parties and aim to develop the detail of this approach and resolve outstanding issues. Subject to these discussions and a full assessment of the impact on affected groups we will prepare provisions giving effect to this option for inclusion in the substantive Bill. If we proceed with this approach, we will also ensure that appropriate guidance on the new system is published as recommended by the Committee prior to its being implemented," it said.

The Government rejected other recommendations made by the Joint Committee On The Defamation Bill over the process that should be devised for online defamation cases.

The Committee had said that 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.

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 on the fate of the comment.

However, the Government said the Committee's "two-track system" would not work in practice.

"Content complained about may be embedded within a number of different sites, making it unclear who should be responsible for attaching the notice and where exactly it should be placed," it said. "There could also be difficulties arising from the fact that audio-visual material cannot be edited easily, and imposing a caption over the material would be unnecessarily intrusive."

"In addition, it would be very difficult to ensure that the notice was transferred across to any subsequent site on which the material might appear, particularly since the notice could potentially need to remain posted in perpetuity if the complainant chose to take no further action," it said.

Last year the Joint Committee said that a "cultural shift" is needed in how anonymous internet postings are viewed. It said that ISPs should be able to "apply to a judge for an exemption from the take-down procedure and secure a 'leave-up' order" if they had "significant reasons of public interest that justify publishing the unidentified material—for example, if a whistle-blower is the source".

However, in practice ISPs would still face similar difficulties they currently do in assessing "public interest reasons" to justify the anonymous comments.

"These practical difficulties mean that, while we agree in principle with the aims underlying the Committee’s recommendations, we do not consider that they would be workable in practice," the Government said.

The Government said its libel reforms would aim to "[strike] a balance which provides an effective means for people to protect their reputation where this is defamed on the internet, while ensuring that internet intermediaries are not unjustifiably required to remove material or deterred from properly monitoring content because of the fear that this will leave them potentially liable."

The Government published a draft Defamation Bill in March last year proposing that comments would have to have caused substantial harm in order for it to be labelled as defamatory. The Government has now revised the requirement so that only comments that have caused "serious harm" could be deemed defamatory.

"The Committee proposes that a higher hurdle should be applied, and that this should be reflected in a test of 'serious and substantial harm'. We are concerned that the use of two separate terms alongside each other would be likely to cause uncertainty and litigation over what difference may exist between the two terms, which would add to disputes and costs. However, in the light of the Committee’s views and the balance of opinions received on consultation we are persuaded that it is appropriate to raise the bar for bringing a claim. We believe that a test of 'serious harm' would do this, while maintaining a balance that is not unduly restrictive on claimants’ rights," the Government said.

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.