The UK Government has suggested that Internet Service Providers could act as go-betweens between parties involved in defamation disputes online. The suggestion comes as part of the reform of English libel legislation.
Proposed reform of UK libel legislation
In an effort to reform English libel legislation, the United Kingdom Ministry of Justice in March 2011 published on its website a Draft Defamation Bill, inviting input the from interested parties in the form of a public consultation.
At the same time the draft defamation legislation was being examined by the Parliamentary Joint Committee on the Draft Defamation Bill, with the Committee publishing its report in October 2011.
The UK government has now responded to the Committee’s comments and recommendations, clarifying its position in regard to specific points raised.
Notice of complaint instead of deleting online comments
The aim of the revised libel legislation is to strike a balance between the protection of freedom of speech and protection of reputation – something that is especially important when it comes to online interaction. Instances of online defamation, where the alleged slanderer’s identity is unknown to the person complaining, were thus among the issues tackled by the Parliamentary Committee’s report.
Under current UK rules, ISPs have to delete allegedly defamatory comments upon being informed of them, or else face being liable for defamation themselves.
In its report the Committee suggested that ISPs needn’t delete allegedly slanderous material when the material is that of an identifiable author, but rather put a notice of complaint alongside the material. A judge would then decide if the comments in question should be taken down.
Controversial texts of unidentifiable authorship, on the other hand, should be taken down immediately, said the Committee.
ISPs should act as liaisons
In its response, the UK Government has now made it clear that it does not believe the Committee’s approach would work in practice, and suggests that a better solution would be that Internet Service Providers (ISPs) act as liaisons between the parties in dispute.
Put simply: in instances where an individual would feel defamed by comments posted by a user online, the ISP would have to pass correspondence between both parties in an effort to mediate the dispute before it reached court.
As is already the norm, should the author’s identity be unknown to the ISP, the ISP will have the obligation of removing the offensive comment immediately, says the Government. In instances, however, where the author of the comments in dispute would be identifiable, the ISP would have to contact said author upon receiving a notice of complainant.
“If after an initial exchange of correspondence the issue remained in dispute”, writes the UK Government, “ the intermediary would be required to provide details of the author to the complainant, who would then have to initiate legal proceedings against him or her to secure removal of the material (if the matter could not be resolved by other means), and could not pursue an action against the intermediary.”
Step in the right direction
“ISPs should not be forced to remove materials simply to avoid potential legal action against them, as this could severely affect the freedom of expression,” agrees Boštjan Makarovič, Aphaia’s expert on communications law, “Giving them a more neutral role such as exchange of correspondence seems to be the step in the right direction.”
The UK Government claims to be aware of the fact that its proposed scenario still has many issues to work through – among them the need for a strict timeline of the initial contact between the parties in dispute and the need for speedier court trials in removing online comments. The Government promises to open its proposal for discussion, should it decide to implement it.
