Long Awaited Libel Reform Puts Privacy at Risk
As the Defamation Bill enters the committee stage Simon Whitten looks at the problems it aims to address and discusses why, in its current form, it could do more harm than good.
One day you receive an e-mail from a person you've never met. She claims that a comment posted on your blog defames her and she threatens to take you to court if it is not removed immediately. You dutifully check the comment; it doesn't seem libellous, provocative perhaps but not libellous. In your judgement the comment is fair and falls well within the norms of comment in a free society but you know these libel laws can be tricky and you definitely don't want to be dragged into the courts over this, so what do you do? Most of us would feel pressured to comply with the demand to take down the comment.
At present in England and Wales website operators, from the owner of a small personal blog through to Google itself are treated as the publishers of all content that appears on their site and as such are, in principle, liable for damages caused by libellous statements made by third parties appearing on that site. Worse, not only is the website operator liable, so potentially are search engines, ISPs and the web host. Some of these disputed claims of defamation are made in good faith and may or may not be upheld in court, others are clearly nefarious and are made with the intention of stifling legitimate debate, comment and criticism.
It's for the best then that Britain's libel laws are undergoing a much needed update. With the Defamation Bill (which entered the committee stage this week) likely to be passed into law we stand on the verge of a major victory for free speech. A response to popular demand following a number of recent high profile libel trials which exposed the inadequacy of Britain's archaic libel laws, if passed the bill would add new legal defences, grant immunity to peer-reviewed journals and crack down on libel tourism.
Of particular interest to internet users will be clause five which addresses the problem described above by granting website operators conditional immunity from liability for content posted by a third party. By allowing allegedly libellous comments to stay up while the dispute is on-going the law would provide some theoretical protection to free speech. There is, however, a catch. On receipt of a mere notice of complaint a website operator would be obliged to disclose the identity and contact details of the comment's author so that legal action may be pursued against him or her. Where the author cannot be identified the website operator will be required to take-down the content or lose their immunity.
As a result the privacy of individual internet users is put at risk. As no court order will be required to force disclosure, only a complaint, the system will likely be open to abuse. In its current form the bill seems likely to lead to website operators being pressured into disclosing the identity or contact details of a poster or user simply upon receiving a complaint by an allegedly injured party or face liability themselves. The operators of small blogs will simply be unable to risk facing the potentially costly battle in the courts that would come from protecting the privacy of their readers while major website operators are simply incapable of judging individual complaints on their merits. The implementation of the Digital Millennium Copyright Act in the US has already demonstrated the ways in which such a process can be abused, with claims under the Act routinely being used in attempts to censor legitimate criticism on YouTube.
It remains unclear what, if any, safeguards will be put in place to protect against the abuse of this mechanism, to protect the privacy of the individual internet user or to prevent malicious use of personal information once it has been disclosed. Although the bill does grant the Justice Secretary the power to implement regulations in this area, the privacy of internet users, individual citizens and freedom of speech on the internet cannot be left to ministerial whim. It's simply not right for the Government to be granted a legislative carte blanche to undermine or safeguard individuals' right to privacy as they please, especially given the track record of recent governments on privacy issues.
Unamended, the bill clearly does more harm than good for internet users. While the conditional immunity of website operators should serve to reduce the pressure for content to be taken down unreasonably, it does so by simply passing the threat of frivolous legal action from hosting companies and website owners onto the individual user who's even less prepared to deal with it and in doing so puts their private information at risk. Libel reform is desperately needed, but must give privacy equal weight to the protection of reputation.
Simon Whitten is an economics and politics student and campaigns for digital economy reform, international development and freedom of information.
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