Website operators to get special protection from Defamation Bill

Website operators will be protected against libel claims based on comments posted on their sites by a special clause in the government’s long-awaited Defamation Bill, not included in the draft version.

There is also a new clause extending qualified privilege to the publishers of scientific and academic journals, where articles are peer-reviewed.
The bill, which has just been published on the parliamentary website, states that it is a defence for an operator to show that “it was not the operator who posted the statement on the website”.

A potential claimant has no remedy against the owner of the website, or the ISP, where the author who posted the comment is identified.

Only where the post is anonymous, and the operator has failed to respond to a ‘notice of complaint’, will anybody be able to launch a libel action.

The ‘notice of complaint’ must name the complainant, explain why the comment is defamatory under the new, stricter rules set out in the bill, specify where on the website the comment was posted and give any other information required by the regulations.

David Hooper, partner at RPC, said the clause protecting website operators “pushes us closer, but not as far as” the American position, where operators were given a complete “carte blanche” to put up comments even if asked to take them down.

“One of the issues was how far we should go towards American law, and we’ve gone quite a distance,” he said.

Hooper said the complainant would have to give “chapter and verse” as to why he or she had been libelled, so the ISP could “take a view” on what to do.

“Taking down comments will not be an automatic thing and publishers will think quite carefully as to whether they need to, or whether the complaint could be resolved by giving a right to reply.”

Hooper said the extension of qualified privilege to the publishers of academic and scientific journals would give them a “pretty strong defence” against potential claimants.

“You would have to prove malice, which would be virtually impossible where the journal was of good repute,” he said.

Hooper added that underlying both new clauses was the requirement that complainants prove they had suffered ‘serious harm’ and it was clear that their cases should be dealt with under English law.
Jonathan Coad, partner at Lewis Silkin, who acts for libel claimants and defendants, said website operators hosting content from users were doing it partly as a public service and partly for profit.

He said the clause protecting operators could “generate litigation like nobody’s business” over the issues of how to identify the author and, where comments were anonymous, over notices of complaint.
“What lengths are you supposed to go to identify a person?” Coad asked. “Is the test objective or subjective? In other words, does it depend on whether the claimant is a large company or a private individual with limited means?”
Coad said comments posted under pseudonyms could be “completely untraceable” if they were posted from internet cafes.
“This is an attempt to make things clear, but it is replete with problems,” he said. “The courts will ultimately end up making the decisions.”
Coad said he believed the new clause on scientific and academic journals was “completely unnecessary” as he could not think of any successful action against a peer-reviewed article.
 

He said that, rather than extending qualified privilege, justification was the proper way of testing academic articles.