An earlier study by the Commission, published in May 2002, perceived abuses of defamation procedure in England and Wales. The new report, published just one week after a high-profile Australian case on internet defamation, investigates problems with the way the law of defamation and contempt of court affects internet communications.
The report is partly based on discussions with four ISPs. Some on-line publishers were also consulted.
The Commission believes it has a strong case for reviewing the way that defamation law impacts on ISPs. Its report observes that, while actions against primary publishers are usually decided on their merits, the current law places secondary publishers under some pressure to remove material without considering whether it is in the public interest, or whether it is true.
These pressures appear to bear particularly harshly on ISPs, whom claimants often see as "tactical targets". There is a possible conflict between the pressure to remove material, even if true, and the emphasis placed upon freedom of expression under the European Convention of Human Rights. Although it is a legitimate goal of the law to protect the reputation of others, the Commission considers it important to ask whether this goal can be achieved through other means.
Several reforms have been suggested that, the Commission believes, require further examination. One possibility is to exempt ISPs from liability completely, as in the US. Another is to consider possible extensions to the innocent dissemination defence, as set out in the Defamation Act of 1996. If this defence were extended, the legislation would need to be accompanied by clearer guidance to ISPs on how to deal with the practicalities of receiving and responding to complaints, possibly through an industry code.
The Commission also recommends a review of the way in which each download from an on-line archive gives rise to a fresh cause of action, and causes the limitation period to begin anew.
Publishers have argued that they should only be subject to the defamation laws of their own jurisdiction, which they know and understand. The Commission believes, however, that "any solution would require an international treaty, accompanied by greater harmonisation of the substantive law of defamation."
The report added:
"We do not think that the problem can be solved within the short to medium term. We do not therefore recommend reform in this area at the present time."
The full report can be downloaded as 56-page PDF from available at:
www.lawcom.gov.uk/files/defamation2.pdf