The report centres on what the Joint Committee considers to be the key elements of the Defamation Bill that impact on human rights, being the proposed codification of the Reynolds defence in clause 4, the new defence for website operators in clause 5, and the proposed single publication rule in clause 8. In this post, I follow on from my previous postings about internet libel and clause 5 (see Part 1 and Part 2) by commenting on the Joint Committee’s recommendations as to clause 5.
The threshold for a clause 5 notice: defamatory or unlawful?
The purpose of clause 5 is to provide a new defence for website operators in circumstances where the claimant can pursue his claim for defamation against the person who posted the statement.
Under the current drafting, clause 5(6)(b) requires that in order for a claimant to defeat the defence, he need only explain in his/her notice of complaint why the statement complained of is defamatory, not why it is unlawful. This requirement mirrors the practical effect of the defence under Section 1 of the Defamation Act 1996 (“Section 1″) but is a lower legal threshold than is required to defeat the hosting defence provided to internet hosts by Regulation 19 of the E-Commerce Regulations 2000 (“Regulation 19″), which requires a claimant to demonstrate why the information complained of is “unlawful”.
Regulation 19 applies beyond libel claim to, for example, claims for copyright infringement and breach of privacy. However, in the libel context, it means that the claimant need not only demonstrate that the words complained of are defamatory but also have some regard to whether any defences might be available. As recent cases (e.g. Davison v Habib  EWHC 3031, Tamiz v Google  EWHC 449 and McGrath v Amazon  EWHC B3) have shown, whilst a notice showing that a statement is defamatory may be sufficient to defeat the Section 1 defence, it may not be sufficient to defeat the Regulation 19 defence unless it also makes out a prime facie case of unlawfulness.
Although the precise requirements for a claimant to meet this “unlawful” threshold are uncertain, it seems to be clear from the case law so far that the claimant must substantiate his/her claim in some way before the internet intermediary loses its Regulation 19 defence. In Bunt v Tilley  EWHC 407, followed in Davison v Habib, Mr Justice Eady stated that in order to be able to characterise information as “unlawful“, a person “would need to know something of the strength or weakness of available defences.” Similarly, in Tamiz v Google (which was considered by the Court of Appeal last week) Mr Justice Eady held that “more was required” from the claimant than a simple assertion that the words complained of are defamatory.
If the drafting of clause 5 stays as it is, we will therefore be left with the situation where website intermediaries, some of whom receive hundreds of notices of complaint a month, will need to consider each notice by reference to two legal standards one a UK standard and one European standard. The inevitable result will be disputes between claimants and website operators as to whether or not a notice of complaint was sufficient to defeat a Regulation 19 or clause 5 defence. There are already enough of those disputes without two separate standards to complicate matters.
The Joint Committee has recognised this issue and has recommended that the requisite threshold in a clause 5 notice be elevated from “defamatory” to “unlawful” in order to ensure consistency with the E-Commerce Directive 2000 and the Pre-Action Protocol for defamation. Following this recommendation, Lord Lester of Herne Hill has tabled an amendment to add the words “and unlawful” to clause 5(6)(b). This will be considered by the House of Lords Grand Committee on Wednesday.
The Government’s response at the time of the report was to draw an unclear distinction between the E-Commerce Regulations, where an intermediary can be liable once notified that a statement is unlawful and clause 5, which encourages the website operator to “simply fulfil the role of a middle man” in the take down process and in doing so, will evade any liability. In fact, there is no proper distinction here because both standards affect both the take-down process and whether an intermediary can be held liable.
At the House of Commons Committee stage, the Government rejected an amendment more in line with the Regulation 19 defence on the basis that it would be too onerous on claimants to have to consider potential defences to defamation. The Joint Committee acknowledges this argument but considers the risk of website operators simply removing the material rather than engaging in a proper analysis on the merits to be too great.
There is some merit in the Government’s concerns. It must be right that litigants in person cannot be expected to understand the subtleties of the defences of honest comment and qualified privilege in libel law and should not be forced to take legal advice to make an initial complaint. However, that is not to say that claimants ought not to be able to state basic factual information in relation to their complaint; they should have no difficulty in explaining (1) why the allegations complained of are defamatory, (2) why any facts complained of are false, and (3) why any opinions in the words complained of are unsupportable. That would at least enable website operators to have some regard to the available defences of truth and honest comment.
These requirements should, in my view, be plain on the face of clause 5 in a way that does not leave uncertainty as to what “unlawful” means. This was one of the issues being considered by the Court of appeal in Tamiz v Google last week. There should be no room for uncertainty as to what a claimant is required to state in his notice of complaint and as to which standard the website operator ought to apply when assessing a complaint.
Adopting these specific amendments would assist with the quick resolution of complaints, discourage unmeritorious or abusive claims, and ensure consistency as to what claimants are expected to include in their notices. It would also avoid the situation of website operators having to consider the contents of a notice of complaint against multiple European legal standards in considering its potential liability.
These amendments to address the “unlawful” threshold should also be supplemented by a requirement for the claimant to explain why the statement complained of has caused or is likely to cause serious harm to the claimant. That is an existing requirement of the common law and will be codified in clause 1 of the Defamation Bill. Many online defamation complaints in fact get nowhere near this threshold and are simply too trivial to get off the ground in any court action. This requirement would therefore help to reduce the number of trivial and frivolous complaints that website operators are required to deal with.
The Regulations and clause 5 notice and take-down procedure
The Joint Committee has also recognised that the big black hole of clause 5 – the Regulations that are intended to follow it – are in fact perhaps the most important element of the clause. It is these Regulations that will govern in practice what the website operators will need to do in order to rely on the clause 5 defence. As the Committee has recognised, the Regulations should therefore be subject to full scrutiny by adopting the affirmative resolution procedure, thereby requiring the formal approval of the Regulations by both Houses of Parliament. Lord McNally has now tabled a formal amendment to reflect this.
The Regulations raise complex issues, particularly in respect of anonymous content (see my previous post on Inforrm). For clause 5 to have a positive impact on freedom of expression online whilst at the same time protecting genuine victims of online defamation, very careful scrutiny is required as to the many different types of internet libel cases and the procedures that website operators (both large and small) can put in place to handle complaints. Hopefully, the House of Lords Grand Committee will do just that next Wednesday when it considers clause 5.
Ashley Hurst is a Partner at Olswang LLP, specialising in media and internet-related disputes