Status: Bill has received Royal Assent. (this page may need some updates to reflect the current status)
Seection 5 of the act relates to operators of websites, allowing a defence that website owners have for comments posted by third parties (user generated content), but this does not apply to comments made by unidentifiable parties when certain actions are not taken by the operator.
- 37. Subsection (2) provides for the defence to apply if the operator can show that they did not post the statement on the website. Subsection (3) provides for the defence to be defeated if the claimant can show that it was not possible for him or her to identify the person who posted the statement; that they gave the operator a notice of complaint in relation to the statement; and that the operator failed to respond to that notice in accordance with provision contained in regulations to be made by the Secretary of State. Subsection (4) interprets subsection (3)(a) and explains that it is possible for a claimant to “identify” a person for the purposes of that subsection only if the claimant has sufficient information to bring proceedings against the person.
In late January 2013, amendments were moved on report and one of these amendments, put forward by Lord Phillips of Sudbury and Lord Faulks, focused on Clause 5. The proposed amendment alters the language of the original text and provides a mechanism for defence, as opposed to what can be used to defeat any defence used by an operator, as found in the original text.
Graham Smith writes:
"The most controversial and difficult of these provisions is Clause 5, which according to the government’s consultation response on the draft Bill was to deliver a greater degree of protection against liability for intermediaries.
"For anonymous or pseudonymous posts, on the face of it Clause 5 mostly offers no more than the existing defences, and in some important respects is less attractive. A proper assessment of the effect of Clause 5 on anonymous and pseudonymous posts is hindered by the unsatisfactory device of leaving significant elements to be prescribed by secondary legislation. The clause reads as if the drafters gave up half way through and punted off the most difficult aspects to a statutory instrument."
Notice and takedown: avoiding court orders?
The government’s preferred option in response to the joint committee was for ISPs to act as a liaison between the person complaining about a defamatory posting and the author (where the identity and contact details of the latter were unknown to the complainant.
The ISP would contact the author (or if this did not prove possible, take the posting down). If after an initial exchange of correspondence the issue remained in dispute, the ISP would be required to provide disclose the identity of the author to the complainant, who would then have to sue him/her to get Takedown ---and no claim could be taken against the intermediary.
Julian Huppert MP asked in the Commons that the government publish a draft of the additional regulations for website operators but no answer was forthcoming. These calls for draft regulations were again made in the second reading of the Bill.
Public Bill Committee
- Clause 5, 2012-06-21
Joint Committee on Human Rights
From the report:
- 40. We are not satisfied with the Government's distinction in this matter. We think there is a real risk that website operators will be forced to arbitrate on whether something is defamatory or lawful, and will to readily make decisions on commercial grounds to remove allegedly defamatory material rather than engage with the process. As drafted, Clause 5 risks removing material from the internet, which, although it may be defamatory, may be lawful if a relevant defence applies. Material which is lawful may be suppressed because website operators are served with such notices. We recommend that the threshold for a Clause 5 notice should be elevated to 'unlawful', which would also ensure consistency with the E-Commerce Directive and the Pre-Action Protocol for defamation.
Lord Puttnam has put forward an amendment, passed in the House of Lords by 272 to 141, for a Leveson-style libel arbitration body that could leave journalists open to large fines if they do not consult with it before publishing their stories. Lord Lester has decried the amendment as "party political gamesmanship" and has warned that the whole Bill may have to be abandoned. Lester stated;
- "Free speech in this country is in grave danger of being stifled by party political gamesmanship. The threat comes from politicians who have hijacked an attempt to reform our out-of-date, repressive libel law by clogging the Defamation Bill with wrecking amendments."
The full text of the amendment is as follows;
"Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board
(1) The Lord Chief Justice shall establish a Defamation Recognition Commission.
(2) Schedule (Recognition Commission) makes provision relating to the Defamation Recognition Commission.
(3) The Defamation Recognition Commission shall certify bodies as Independent Regulatory Boards in accordance with the criteria in Schedule (Recognition Commission).
(4) An Independent Regulatory Board shall provide a recognised arbitration service as set out in Schedule (Specialist Arbitration Service).
(5) A court shall take into account when awarding costs and damages whether either party, claimant or defendant in a dispute has chosen not to use the recognised arbitration service of an Independent Regulatory Board.
(6) A court shall award costs under subsection (5) on an indemnity basis unless the interests of justice require otherwise.
(7) A court may order a successful party to pay all the costs of proceedings if such party has unreasonably refused to use an available recognised arbitration service.
(8) A court awarding in its judgment exemplary damages where a defendant is guilty of a flagrant breach of a defendants rights, can also take into account whether-
(a) a claimant refused to use a recognised arbitration service;
(b) a defendant refused to use or join a recognised arbitration service;
(c) the court shall also take into account whether a defendant first sought advice from a recognised Independent Regulatory Board before publication."
In March 2013 amendments were proposed to the Crime and Courts Bill to provide for independent press regulation.
- What the Defamation Bill means for the internet, Graham Smith, 2012-05-13
- Defamation Bill 2012 - libel reform ok, but not if you operate a website with "anonymous" comments etc., Spyblog, 2012-05-13
- The Defamation Bill, Non Commercial Use, 2012-05-26
- Trolls and the defamation bill 2012, Francis Davey, 2012-06-12
- Explanatory Notes for section 5 of the Act
- What the Defamation Bill means for the internet, Graham Smith, 2012-05-13
- Government Response CM 8295.pdf See §77 et. seq. of the government response to the joint committee.
- Case C‑461/10 Bonnier Audio. Neither the Data Retention or the e Privacy Directive Directive (2004/48) prevent domestic laws allowing courts to make orders for disclosure of personal data, provided they weigh the conflicting interests involved, on the basis of the facts of each case and take due account of the requirements of the principle of proportionality. See also Case C‑275/06, Productores de Música de España (Promusicae) v Telefónica de España SAU
- Hansard, Defamation, 2012-05-15
- Defamation Bill Hansard, 2012-06-12, "For the sake of proper parliamentary scrutiny, it is imperative that the Government publish their regulations before Committee and subject resolutions to the positive procedure."