Notice and Takedown Consultations

Two consultations have come along at once – one from Westminster and one from Brussels – that both seem to recognise the problems with incentives that current liability rules create for sites that host third party content. Under both the UK Defamation Act 1996 and the European eCommerce Directive (2000/31/EC) hosts are discouraged from themselves checking what others put on their site until they receive a complaint, and then encouraged to remove whatever is complained of without considering whether the complaint is justified. The title of the Commission’s consultation, “A clean and open Internet”, neatly summarises what current incentives fail to promote!

The first consultation is by Parliament’s Joint Committee on Human Rights, which has chosen to look at the human rights issues of the Defamation Bill published by the Government following the Queen’s Speech. That Bill does seem to offer better protection for authors whose statements are the subject of unjustified complaints, but hosts will need to be sure that all the required conditions are met before they rely on it. Since this clearly relates to the human right of free speech, I’m planning to send a Janet response recommending greater clarity on this point.

The consultation by the European Commission expresses concern about unwarranted removal of material, and also asks about the problem of self-checking before a complaint is received. It’s likely to be some time before we see draft European legislation resulting from this, but a change to European law could cover all types of complaint, not just defamation.