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The government did not include measures for tackling online defamation in its draft bill but invited feedback via consultation

Credit: Nigel Chadwick. Some rights reserved

The challenges faced in legislating for online defamation are not "an excuse for inaction", the joint committee on the draft defamation bill said today in response to the government's draft bill.

In the draft bill, which was published in March, the government did not include measures for tackling online defamation specifically, but instead issued a consultation paper calling for feedback on the matter.

Justice Minister Lord McNally also called on experts in the area to come forward and advise on whether it is now time to legislate, and how best to do so.

Today the joint committee proposed a number of measures on how to handle this issue, including the introduction of a new notice and take-down procedure, and changes to the management of anonymous material, such as that posted on social media platforms.

Under these measures, where an author is identifiable, the host of that content must publish a notice of complaint alongside the material, according to the report. If a host does not do so "it can only rely on the standard defences available to a primary publisher, if sued for defamation".

A complainant can then also apply to court for a take-down order, at which point the host and author are able to enter submissions to the judge who will then make a decision "promptly".

"The challenges facing regulation of the internet contribute to what some people have described as a new 'Wild West', in which law enforcement is failing to keep pace with technology," the report says.

"Issues of this kind will not be solved overnight. There is, and will be, cultural change as we adapt to the use of new communication technologies. The law needs to respond to this. The precise direction of this social change is unpredictable but we believe it is possible, and desirable, to influence its development, in part through legislative reform.

"Specifically 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 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."

The report outlined three main recommendations for the government in relation to online material:
  • Ensuring that people who are defamed online, whether or not they know the identity of the author, have a quick and inexpensive way to protect their reputation, in line with our core principles of reducing costs and improving accessibility.
  • Reducing the pressure on hosts and service providers to take down material whenever it is challenged as being defamatory, in line with our core principle of protecting freedom of speech.
  • Encouraging site owners to moderate content that is written by its users, in line with our core principle that freedom of speech should be exercised with due regard to the protection of reputation."
The committee added that any material which has been written by an unidentified person "should be taken down by the host or service provider upon receipt of complaint, unless the author promptly responds positively to a request to identify themselves, in which case a notice of complaint should be attached".

"The government needs to frame a coherent response to the challenge of enforcing the law in an online environment where it is likely to remain possible to publish unidentified postings without leaving a trace.

"As part of doing so, the Ministry of Justice should publish easily accessible guidance dealing with complaints about online material. We recommend that the government takes the necessary steps to implement the approach we outline."

Outside of the online environment, the committee said publication of the draft bill "represents a welcome indication that long overdue legislation is finally to be delivered".

Other recommendations include replacing the draft bill's test of "substantial harm" to reputation with a "stricter test", requiring "serious and substantial harm" to be established.

It also calls for a provision to be added to the bill giving the press "a clear and unfettered right to report on what is said in Parliament and with the protection of absolute privilege for any such report which is fair and accurate".

However the committee argued that in relation to reducing costs, the government's proposals "do not go far enough".

"The changes to procedures proposed by the Government are largely a tightening up of existing mechanisms: they cannot be seen as radical and do not go far enough towards reducing costs to the extent that legal action will be realistically accessible to the ordinary citizen," the committee says in its report.

"We want to see the development of a culture in which expensive legal action is the last rather than the first resort.

"We believe that a tougher approach is required to ensure that the potential for early resolution is properly explored in all cases. There should be straightforward alternative means of dispute resolution which form the starting point for any complainant, unless there are exceptional reasons for going directly to court.

"The advantages of using these alternatives to the court should be sufficient to ensure that a far smaller number of claims ever reach court in the first place, never mind proceed to full trial."

The committee's proposed approach covers three elements, of "mediation or neutral evaluation" as the norm, voluntary arbitration and if the claim cannot be settled these ways, with a court decision based on "improved procedures".

The report also touched on the issue of privacy, making reference to "the recent very public clash" between a privacy injunction and parliamentary privilege, an apparent reference to the naming of the subject of an injunction by an MP in parliament.

The joint committee said the government's reaction to set up a committee to consider this "does not absolve the government of its responsibility to develop a coherent and principled vision for what should be the interaction of the rights of privacy, reputation and freedom of expression rather than finding itself buffeted by successive tabloid or online revelations and controversial court decisions."
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