Government Response on Draft Defamation Bill

The Ministry of Justice has published their response to the Joint Parliamentary Committee’s comments on a proposed Defamation Bill. As discussed in a previous post, those comments included a novel suggestion that third party postings on websites be treated differently depending on whether the posting is attributed or anonymous. For organisations that allow such postings on their websites this would have reduced the current pressure to immediately remove postings when any complaint is received; it would also have reduced the risk that arises at the moment if an organisation decides to proactively check what is posted (more detail about these risks can be found in the Janet response to the original consultation).

The Government agrees with the Committee that the aim of reform should be to

strik[e] 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.

and that

on balance we accept that the current position in the law is not satisfactory, and that a greater degree of protection against liability for intermediaries is appropriate.

However they consider that the Committee’s recommendations would prove impractical and instead propose only an alternative way of handling complaints that doesn’t seem to address the problem of proactive checking.

The suggestion is that a new process be included in the Defamation Bill (the original consultation had planned to deal with on-line publication later, so at least the urgency of change has been recognised). At present an unaware hosting provider is protected from liability until they receive a complaint about specific material on their site. Under the proposal this protection would continue provided the host informed the poster of the complaint and attempted to resolve it. If this was not possible within a short time, the hosting provider could inform the complainant of the poster’s identity and would then be protected while a court decided the case between the poster and complainant.

This approach clearly leaves truly anonymous postings (where the website is unable to identify or contact the poster) in the same position as at present: likely to be taken down at the first complaint. It also seems to me that the process for dealing with attributed postings will have to be carefully designed: the Government recognise that safeguards will be needed, for example to protect whistleblowers, but if those make the required communications too onerous then hosting providers may conclude that the extended protection isn’t worth it and continue to behave as at present.

The alternative process might give some help to universities and colleges who (unlike commercial ISPs) have a statutory duty to protect free speech by their members and guests. If taking down a posting in response to a complaint seemed likely to harm free speech then the university could, perhaps, invite the poster to make themselves known to the complainant and have the balance of rights decided by a court. However this doesn't help those who want to go further and check postings before they receive a complaint.