Defamation Bill

Memorandum submitted by the Pirate Party UK (D 01)

Summary

The Pirate Party UK [1] welcomes reform of the law on defamation but has concerns about the economic impact of the narrow wording of the draft bill, the chilling effects on free speech of not having a broader and clearer exemption for user comments, and potential loopholes and drafting mistakes in the current text. Several weaknesses and limitations have been identified within clause 5 of the current bill, and alternative clauses, aimed at fixing these are suggested. These clauses expand clause 5 to cover all platform-providers, remove the restriction on anonymous comments and associated notice provisions, but adds a power by which a court can order the removal or modification of defamatory content.

1. Introduction

1.1 The Pirate Party UK is a political organisation registered with the Electoral Commission. It campaigns for significant reform to copyright and patent law, protection for personal privacy and government transparency, and greater freedoms of speech and communication. It was formed in 2009 and has fielded candidates in elections for local government and the Scottish and UK Parliaments. The Party has links (through the umbrella organisation Pirate Parties International) with similar organisations in nearly fifty countries worldwide, and "Pirate" politicians have been elected to local, state and international Parliaments.

1.2 Government attempts to regulate the Internet are often highly unpopular with voters, and lead to a reinforcement of the view that politicians do not 'get' the Internet. The Party feels the issues with the current draft of the bill would tend to reinforce that view. While this may prove advantageous to the Pirate Party at the ballot box, it would prefer it to be fixed sooner rather than later. While the case for dealing separately with online defamation is clear - online forums are often non-commercial, and run by individuals who cannot reasonably be expected to have the same legal or fact checking resources as commercial publishers. The Party feels it is inappropriate to single out a specific technology when creating defences. Such an approach could lead to an over-complication of the law, with defences required for each new technology as it develops. The natural delay between new technologies and amendments to the law that take account of these technologies will inevitably lead to problems and stagnation.

1.3 In debates on this bill, particularly in its second reading in the House of Commons, the broader issue of bullying or 'trolling' was discussed. While bullying is a serious issue, whether online or offline, the Party feels this is not an appropriate place for a discussion on it. There are already a raft of criminal measures designed to tackle abusive, harassing or malicious behaviour, which are being successfully applied in the online world (although this should not be taken as an indication of support, by the Party, of these powers, many of which are too broad). It is unlikely that a situation would arise where those measures would not apply, but defamation would, particularly considering the requirement of "serious harm", or the application of the defences of truth or honest opinion (or their existing equivalents). Additionally, it is likely that many statements falling outside the scope of criminal measures would be dismissed as "mere vulgar abuse", and even in cases of defamatory bullying online, a claim under defamation is unlikely to be the most appropriate course of action. The Party feels that, while issues of bullying do need to be discussed, this bill and the debates surrounding it should focus on reputation and defamation alone.

1.4 The Party broadly supports the Defamation Bill, and welcomes the commitment of all major political parties to reforming English defamation law and protecting freedom of expression. However, the Party has strong concerns over clause 5 ("Operators of websites") of the current bill, which are listed below, along with suggestions for improving the law. The Party notes the lack of a clause imposing limitations on the ability of non-natural persons to bring actions for defamation, and would support the amendment in the name of Robert Flello MP marked as NC4.

2. Specific Concerns

2.1 The Party is concerned that, as it stands, clause 5 only applies to "websites", and that no definition of a website has been given. Unless the authors of the text specifically intended to exclude Newsgroups, Internet Relay Chat Rooms, and mobile phone apps etc., then this defence, protecting providers of publishing platforms, should not be protocol-specific, or even technology-specific. It should cover any similar publishing platform, whether on the Internet or using another technology.

2.2 The Party notes that the defence under clause 5 appears to have significant overlaps with existing limitations to defamation claims. Following the recent case of Tamiz v Google Inc, [1] in many situations where this defence could apply, the website operator would not be liable due to not being a publisher at common law. If the author of the statement is identifiable, there may be a defence under the proposed clause 10, and if insufficient notice has been given to the operator there may be a defence under reg. 19 Electronic Commerce Regulations. [2] If the purpose of this bill is to make things clearer for internet users, then it should cut through this tangle of case law and EC Directives, and spell out the legal position in plain English.

2.3 Rather than clarifying this complex area of law, the current clause seems only to add to the confusion, potentially giving website operators who are not experts in the law a false impression that, unless they comply with this defence or if they allow anonymous postings, they will be liable for defamatory comments. The addition of the defence could have a chilling effect on anonymous or pseudo-anonymous speech online, and a corresponding adverse economic effect as website operators choose to locate offshore, despite it's aim of reducing the possible liability of website operators. Any new defence in this area should be as clear and unconditional as possible, ideally also covering the above defences.

2.4 The existing clause fails to specify who the "operator" of a website is; it could be the hosting company, a person financing a website, a company running a blogging or commenting service used on a website, or any person with administrator access to the website. A narrow interpretation of this definition could dramatically limit the effectiveness of the defence (particularly for websites where a third-party comment system is used), and without clarification, the uncertainty (only to be settled by long and costly litigation) could add to the confusion surrounding and ineffectiveness of the defence. This term should be clearly defined in the bill.

2.5 The Party is concerned by the lack of justification for withholding this defence from website operators who allow anonymous comments. If the purpose of this clause is to promote a free and open Internet by limiting the liability of website operators for statements they are not directly responsible for, it seems illogical to remove this protection for the website operator merely because the author of the statement cannot be identified. As the long gestation period of Ofcom's 'code' portion of the Digital Economy Act has shown, identifying the exact person behind a keyboard is far from a trivial task and may not be possible at all, rendering the whole clause worthless. This withholding also raises issues of proportionality. If this defence strikes the correct balance between freedom of expression and the right to respect for private life (extending to the protection of reputation) when applied to posts of identified authors, it seems unlikely that it will do so with regard to anonymous authors where the interference with private life is less (due to anonymous speech generally carrying less weight), but where the interference with freedom of expression is greater, as the website operator has fewer protections. This defence should apply regardless of whether it is possible to identify the author.

2.6 If this limitation to the defence is to remain, it is crucial that the bill (rather than regulations) should define what is needed to "identify" the author of a statement. The current clause could be interpreted as covering situations varying from where the claimant can identify the poster through any means (including through obtaining court orders against the website operator and ISPs requiring the disclosure of evidence) to where the full name of the poster is publicly visible next to the post. The clause does not specify what information is sufficient to "identify" a poster; whether it is their real name or IP address (rarely unique or sufficient to narrow down to a single person alone), or nickname or email address (leading to the problems linking that persona to an individual). The clause could be interpreted as placing an impossible burden on website operators to verify any identification information provided by their users. If this qualification is to remain in the defence, it should state precisely what degree of certainty is needed to satisfy or fail the condition currently in subsection (5)(a). If this is not made clear, there will be significant pressure on UK website operators to move offshore, leading inevitably to economic damage. The Pirate Party feels this new defamation legislation should aim to make the UK a jurisdiction that attracts, not repels Internet companies.

2.7 While not specified in the bill, it seems that the regulations created under clause 5 are intended to create an extra-judicial 'notice and takedown' procedure for defamatory posts on websites. Such a system may informally exist under the EC Regulations but Parliament should be wary about creating a formal system without a thorough consultation on the merits and dangers of such a system. The Pirate Party notes that similar systems implemented elsewhere, particularly the 'DMCA takedown' system in the United States of America for copyright infringement, have come under intense criticism due to being open to significant abuse. Parliament should not create, or authorise the creation, of such a system, especially without a more detailed examination.

2.8 As noted in the second reading of the bill, this clause could lead to situations where a defamed individual is left without a remedy. In situations where a defamatory statement is posted on a website, the operator is not the poster and the author can be identified, but where the author is outside the reach of the courts, a claimant would be powerless to recover any damages or force the removal of the statement. This may be appropriate in the circumstances, having regard to the importance of freedom of expression, however, if something is to be done to fix this, the Party suggests a process whereby a defamed party could apply to a court for an order remedying the situation (discussed in more detail below).

2.9 A final concern is that this clause may create problems in situations where an author may be unable to remove or alter their statements. Many websites have comment sections where, once posted, an author has no control over their comments. If the author is identifiable, this defence would grant immunity to the website operator, while not protecting the author. As such, even if a successful action were to be brought against the author, they would be unable to remove their statement and could be liable for subsequent damage done to reputation, while the website remains protected. Even if the website is interpreted as becoming the "poster" at this point, they could still be practically immune if outside the jurisdiction of the courts. The bill should provide for such circumstances by ensuring that the liability of an author in such circumstances is limited.

3. Proposals

3.1 The Pirate Party recommends an amendment to the Defamation Bill replacing the current clause 5 with the following:

Clause [A]: Operators of public publishing platforms

(1) This section applies where an action for defamation is brought against the operator of a public publishing platform in respect of a statement posted through that platform.

(2) It is a defence for the operator to show that the operator was not the author of the statement.

(3) In this section-

(a) "author" has the same meaning as in section 1 of the Defamation Act 1996,

(b) "public publishing platform" includes any system whereby the public, or any section of the public may post statements for publication, and

(c) "operator" means anyone with control over a platform or part of a platform.

3.2 Subsection (1) of this clause mirrors that of the existing clause, but extends it to any "public publishing platform" - see paragraphs 2.1-2.3 . Subsection (2) creates the defence, but restricts it in cases where the operator is the author. Subsection (3) defines the various terms.

3.3 As discussed in paragraphs 2.8-2.9, it may be necessary to include some form of judicial 'takedown' system. If that is the case, the Pirate Party recommends an amendment to the Defamation Bill, adding the following clause:

Clause [B]: Order for removal or modification of defamatory statements

(1) The High Court shall have the power to grant an order against the operator of public publishing platform requiring the removal or modification of an unlawfully defamatory statement.

(2) An order under this section may only be made on the application of an individual defamed by the relevant statement.

(3) In determining whether to grant an order under this section a court shall take into account -

(a) any applicable defences or limitations to a claim for defamation, and

(b) any other matters which appear to it in the particular circumstances to be relevant.

(4) In any action for defamation regarding a statement subject to an order under this section, no account shall be made of any publication or damage caused after the granting of the order.

(5) In this section "public publishing platform" and "operator" have the same meaning as in section [A].

3.4 This clause covers similar material to the amendment in the name of Robert Flello MP marked as NC2, but contains significant differences. Subsection (1) creates the power, but extends this power to the removal or modification of a statement. This would allow the court to require that the statement be altered to include a correction, to have the offending part removed, or to include a reply (in circumstances where removal would not be in the public interest). Subsection (2) limits the application to the defamed party. While this clause does not require that the website or author be notified, the Party understands that the court has the power to notify or join then if appropriate.

3.5 Subsection (3)(a) specifies that the court must consider any applicable defences or limitations to the claim. This is to remove the practical bias in favour of claimants in situations where the defendant (the website operator) may not have an interest in arguing the case, challenging evidence or raising defences. [1] Subsection (3)(b) gives the court the power to consider anything else it feels relevant. Subsection (4) provides the limitation discussed above in paragraph 2.9, making an author immune to an action in defamation for any subsequent damage.

3.6 Unlike the amendment NC2, this clause would not make the website operator liable under defamation for not complying, but such failure would still be breach of a court order, potentially falling under contempt of court. This clause contains no explicit time limit for complying, as such a limit would seem arbitrary. Instead, the imposition of a time limit would be left to the discretion of the court, considering all relevant circumstances. In some cases this could be a matter of hours, in others longer may be needed.

June 2012


[1] For more information on the Party, contact the press office on press@pirateparty.org.uk or visit www.pirateparty.org.uk

[1] Tamiz v Google Inc & Google UK Ltd [2012] EWHC 449 (QB), at paragraph 39

[2] The Electronic Commerce (EC Directive) Regulations 2002/2013, as applied in Tamiz

[1] See recent cases under s97A Copyright, Designs and Patents Act 1988, such as Dramatico Entertainment Ltd & Ors v British Sky Broadcasting Ltd & Ors [2012] EWHC 268 (Ch) & [2012] EWHC 1152 (Ch), where a claim concerning a website was brought against ISPs, who did not appear in court or raise any defence.

Prepared 22nd June 2012