I’ve just compiled last week’s media law round up for the Inforrm blog, which opened with the Parliamentary Joint Committee on the Draft Defamation Bill’s first report. Its recommendations concerning internet publication jumped out at me. If adopted, they would significantly affect the legal situation for digital publishers, in regards to comment moderation, take-down (and leave-up) policies and anonymous blogging.

Firstly, the Committee accepts the Draft Bill’s proposal for a Single Publication Rule, which would limit defamation claims to one year following initial digital publication, as long as the contents are substantially the same as the original (the court still has discretion to extend the one-year time-period “whenever it is just to do so”). Additionally, the Committee called for a widening of the clause’s remit, to protect not just the original publisher but anyone who republishes the same material:

The single publication rule should protect anyone who republishes the same material in a similar manner after it has been in the public domain for more than one year. It should be clarified that the simple act of making a paper-based publication available on the internet, or vice versa, does not in itself amount to republishing in a “materially different” manner.

It’s the consultation bit that gets really interesting: the Committee acknowledges “the challenges that any national legislature faces when acting alone in relation to a global issue” but does not regard these as “an excuse for inaction”.

Specifically, it recommends:

• The circumstances of online publication should be taken into account when determining whether material has caused “serious and substantial harm” [with reference to “casual internet publications”, which allow rapid retraction or amendment]
• A new notice and take-down procedure for online publication [including the possibility of a “leave-up” order]
• The encouragement of a “cultural shift towards a general recognition that unidentified postings are not to be treated as true, reliable or trustworthy”

In practice, it recommends different treatment for material with “indentifiable” and “unidentified” authorship.

It proposes that for identifed material, the ISP must publish a notice of complaint alongside the material; if it doesn’t, it can only rely on standard defences available to a primary publisher, if sued. The complainant can seek a take-down order from the courts, with opportunity for the ISP and author to make submissions to the judge. For anonymous and unidentified material, the ISP must remove material immediately upon receipt of complaint, unless authorship can be established. Additionally:

“If the internet service provider believes that there are significant reasons of public interest that justify publishing the unidentified material—for example, if a whistle-blower is the source—it should have the right to apply to a judge for an exemption from the take-down procedure and secure a “leave-up” order.”

This proposed procedure is part of the Committee’s attempt to promote “cultural change … that will minimise the damage inflicted by the mischievous and the malicious” and would mean that the host or service provider is not liable for anonymous material – if it complies with the stipulated requirements.

Finally a note on comment moderation and the ‘to interfere, or leave well alone?’ debate. The Committee suggests its “two-stage procedure” should “apply equally to online sites that are moderated and those that are not” [my emphasis].

The Committee’s evidence revealed that “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 labelled this an “unacceptable state of affairs” and at odds with public interest. Consequently, to “correct the existing disincentive to online hosts to moderate sites” its report recommends that the Government reforms the Defamation Act 1996:

“to the effect that secondary publishers—such as internet hosts or service providers—shall not be treated as becoming liable for allegedly defamatory statements solely by virtue of having moderated the material or the site more generally. Liability should be determined by the way in which the host or service provider responds to a request for a defamation notice or a take-down order.”

Comment: It looks as if the Committee has really tried to get to grips with some of the challenges that digital technology poses for defamation law and procedure. But, as the Committee itself says it is not “advancing an ideal solution, still less an instant one”. There are still uncertainties to be discussed… Have a read, and let me know what you think. We’ll come back to this.

Further reading

• Out-Law.com>> Allegedly defamatory comments from named authors should stay online, say MPs

• The report, below>>