Anonymous posts face legal shake-up

MPs and peers have recommended forcing social networks and service providers to take down anonymously posted comments if they receive a complaint that they are defamatory
Written by David Meyer, Contributor

Social networks should be forced to take down anonymously posted comments if a person mentioned objects to them as defamatory, a parliamentary committee has recommended.

Westminster London

A parliamentary committee has recommended a shake-up to UK laws that impose a new method for dealing with potentially defamatory comments posted online. Photo credit: Trodel/Flickr

A report by the Joint Committee on the Draft Defamation Bill was published on Wednesday, mostly suggesting various ways in which the UK's strict libel laws can be modified to allow greater freedom of speech.

However, one section specifically addressed online defamation, noting that UK libel law has not been adjusted to take account of internet-based services such as social networks. "We acknowledge the challenges that any national legislature faces when acting alone in relation to a global issue, but do not regard these as an excuse for inaction," the committee of lords and MPs said in the report.

"The internet has fundamentally changed the way that we communicate," it continued. "It has created a new online world in which anyone can legitimately share information, engage in debate and express their views. But, at its worst, it has also created a platform on which people can break the law and cause harm, including by making defamatory statements."

The answer, according to the MPs and peers, is for service providers to take down anonymously posted defamatory comments, or risk being sued themselves when someone complains. It should be affordable for people to make a complaint, they said. There would be no test as to whether defamation had occurred, however.

We wish to promote, a cultural shift towards a general recognition that unidentified postings are not to be treated as true, reliable or trustworthy.
– Parliamentary committee

"We expect, and wish to promote, a cultural shift towards a general recognition that unidentified postings are not to be treated as true, reliable or trustworthy," the committee said. "The desired outcome to be achieved — albeit not immediately — should be that they are ignored or not regarded as credible unless the author is willing to justify or defend what they have written by disclosing his or her identity."

In very special cases where the anonymously posted comments are in the public interest, such as when whistleblowers post, service providers should be able to apply to the courts for a "leave-up" order, it added. In addition, if an anonymous poster agrees to identify themselves on the comment, then a notice that a complaint had been received would be attached to the post.

Index on Censorship is one of the key organisations campaigning for reform of the UK's libel laws. While it welcomed the majority of the committee's report, the group was far less keen on the proposals regarding anonymous comments.

"They propose that if there's a public interest defence, then ISPs can apply for an exemption," Index on Censorship editor Jo Glanville told ZDNet UK. "But we all know that ISPs won't do that. The select committee's proposals therefore leave anonymous bloggers... with less protection against libel [claims]."

Complaint procedure

Where the poster of the comment is named, the committee said, the defamation complaint procedure should run as follows: the host or service provider will receive the objection, then publish a notice of complaint next to the offending remark, while leaving that remark up. If they do not do so, they will again be liable themselves.

The complainant will then be able to apply to a court for a take-down order. If this happens, the host or service provider will notify the offending post's author and both sides will submit their argument to the court. If the court orders a take-down, then the host or service provider will have to comply swiftly, or risk liability.

Part of the rationale behind the proposed system is to counteract one of the stranger aspects of current UK media law. Online publishers are not liable for defamatory comments posted on their sites unless they moderate comments, in which case they are legally exposed.

Publishers and social networks will usually be more attractive targets for litigious complainants, as they are more likely than individuals to be able to pay damages. Additionally, they tend not to be able to easily check whether potentially libellous comments are true or not, so complaints usually result in swift take-downs, even without a court's adjudication.

"As the law stands, far from encouraging service providers to foster legitimate debate in a responsible manner and removing the most extreme material, it encourages them to ignore any dubious material but then to remove it without question following a complaint," the committee said. "This is contrary to the public interest and an unacceptable state of affairs."

Reduce pressure on ISPs

The ISP Association (ISPA) welcomed the committee's report, saying it would reduce pressure on service providers to take down material whenever it is challenged.

The select committee's proposals leave anonymous bloggers... with less protection against libel [claims].
– Jo Glanville, Index on Censorship

"ISPA believes that the current regulatory framework for libel law insufficiently addresses the way content is published and conveyed in the digital environment," ISPA secretary general Nicholas Lansman said in a statement. "We welcome the joint committee's report and urge government to adopt a court-based system that provides clarity to all parties involved."

However, the association responded more tepidly to the committee's recommendation on liability when it comes to anonymous posts. "We note with interest what the committee is proposing in relation to anonymous online postings and the promotion of cultural change, and look forward to working with parliament and the Ministry of Justice to make the UK libel law fit for the online age," ISPA said.

The number of defamation cases related to social media almost doubled in the year to June, rising from seven to 16, according to research by Sweet & Maxwell reported by The Guardian. These court cases included one involving New Zealand cricket team member Chris Cairns over a comment on Twitter.

The report addressed another aspect of media law as it relates to online defamation. Currently, the law treats every time a piece of online content is viewed as fresh publication. Although people can only sue a paper-based periodical for defamation up to a year after the offending article was published, this quirk means web-based publishers can be sued at any time, regardless of when the defamatory piece first went up.

The committee recommended changing the law so that web-based publications and social networks can also benefit from the 'one-year rule'. "This should provide valuable additional protection to online publishers," the lawmakers said.

If the committee's recommendations are incorporated into the Defamation Bill, which could go before the House of Commons next year, the UK's libel and defamation laws would change in a variety of other ways. Scientific and academic journals would be protected from defamation suits by people whose scientific findings had been disproved, for example.

Strict limitations would also be placed on so-called 'libel tourism'. This is the situation where someone in the US, for example, who does not like what a US-based journalist has said about them can sue that journalist in the UK because the offending article can be read online there.

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