It’s taken time for defamation to go digital it seems. The UK’s defamation laws are more comfortably set in times for print and television than they are suited to the fast pace and activity we see online.
A defamation bill is to be debated in the House of Commons today that could lead to the protection of website owners if they help to unveil Internet trolls.
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The bill will more generally look at reforming aspects of the law of defamation. Currently this is governed by common law and the balance of course is whether changes would affect freedom of speech.
A draft Bill was published in March 2011 and subject to pre-legislative scrutiny. The Defamation Bill was presented on 10 May 2012. It extends to England and Wales only, today should see the second reading.
Proposed changes, if the bills is passed, mean that claimants would have to show they have suffered serious harm before suing for defamation. Under the law as it currently stands, a claimant does not have to prove the words they are complaining about have caused them actual damage.
The digital realm is of course under discussion too with talk of introducing new processes of governing responsibility for publication on the internet and to give greater protection to operators of websites hosting user-generated content – like comments on forums. One of the proposals is for these hosts should comply with a procedure to enable the complainant to resolve any dispute, direct with the author of the material concerned.
This could mean the ability to uncover the whereabouts of trolls in order to bring about private cases directly against them if it is felt that real distress and defamation has taken place.
Last week saw a landmark case where, for the first time in the UK, a woman was able to request IP information from Facebook in order to pursue legal cases against them personally. A High Court order was passed and Facebook agreed to give up the information.
If the defamation bill being discussed in the House of Commons today brings this case up in talks, it could mean that other forums and sites that carry user-generated content will also have to reveal this type of information.
This could be a powerful move for victims of trolling and defamatory attacks online. There are many organisations that deal with cyber bullying that highlight the misery and distress that can be caused in these cases.
Getting the balance right can be tricky though as the introduction of laws that empower too much legal action could lead to censorship and restriction of freedom of speech.
Justice Secretary Ken Clarke told the UK Press Association (UKPA):
“As the law stands, individuals can be the subject of scurrilous rumour and allegation on the web with little meaningful remedy against the person responsible. Website operators are in principle liable as publishers for everything that appears on their sites, even though the content is often determined by users.
“But most operators are not in a position to know whether the material posted is defamatory or not and very often – faced with a complaint – they will immediately remove material. Our proposed approach will mean that website operators have a defence against libel as long as they comply with a procedure to help identify the authors of allegedly defamatory material.”
He went on: “The Government wants a libel regime for the internet that makes it possible for people to protect their reputations effectively but also ensures that information online can’t be easily censored by casual threats of litigation against website operators. It will be very important to ensure that these measures do not inadvertently expose genuine whistleblowers, and we are committed to getting the detail right to minimise this risk.”
The Bill will also introduce a single-publication rule. This means that there will be a one-year limitation period in which a libel action can be brought which would run from the date of the first publication of material. In digital terms this would work even if the same article is subsequently published on a website on a later date.
This idea is to counteract the idea that material in online archives is seen as being republished every time it is downloaded. That naturally leaves the archive operator at risk of being sued many times over.
According to UKPA, the so-called Reynolds defence of responsible journalism published in the public interest also gets statutory recognition, as responsible publication on a matter of public interest. So there is some protection of freedom of the press.