On 14 December 2012 the Ministry of Justice commenced an informal consultation seeking views on the content of the Regulations to be made under clause 5 of the Defamation Bill concerning the new defence for website operators. These Regulations will establish the notice and take-down procedure that website operators will have to follow in order to be able to rely on the new clause 5 defence.
Clause 5 and the Regulations were also debated at length last week by the House of Lords Grand Committee, which was somewhat divided as to where the balance should lie between protecting reputation and preventing the all too common practice of website operators removing defamatory statements without scrutiny for fear of legal liability.
The full text of the consultation document was reported on this blog earlier this month. In contrast to the formal public consultation on the primary legislation in 2011, the present process has been sent to interested stakeholders and previous respondents, although it is of course open to others to respond. The Regulations will be prepared once the consultation has concluded and will be subject to the affirmative procedure for statutory instruments, whereby they will be laid before Parliament for the purposes of approval by both Houses before becoming law.
Until now, clause 5 has been debated in something of a vacuum in the absence of any underlying Regulations to give an idea of how the Government proposes the defence will work in practice. However, the consultation document provides the first real glimpse of the detail of the procedure currently envisaged by Parliament, and raises some important points of principle as to how clause 5 will operate. As expected, there are still some thorny issues to be resolved.
The proposed procedure
The primary intention of Parliament in relation to clause 5 is that as far as possible it will encourage claimants to pursue their complaints against the person who posted the material complained of rather than the website operator.
The procedure starts with a notice of complaint from the complainant, which must provide certain information (see further below) in order to benefit from the clause 5 defence. The website operator will then be required to contact the poster of the material complained of within a specified time period (currently envisaged to be 72 hours) to inform him of the complaint, ask whether he wishes to contest removal of the material in question and, if so, whether he is willing to provide contact details so that the complainant can contact him directly.
If the poster provides full contact details (including a postal address for service) within 7 days, the website operator will be allowed to continue to publish the material.
If the poster does not respond within the specified period of time, or indicates that he wishes to contest removal of the material but does not wish to give his contact details, the website operator must remove the material complained of in order to retain the clause 5 defence. The complainant will then be required to apply to the court for a Norwich Pharmacal order to obtain the poster’s contact information should he wish to take the matter further.
The notice of complaint
One of the most important aspects covered in the consultation is the information required to be submitted to a website operator to constitute a valid notice of complaint. Not only is this of clear importance from a practical perspective, but this could also have a significant impact on the ability of website operators to rely on the clause 5 defence.
As I noted in my most recent post on this blog, the current draft of clause 5(6)(b) requires the complainant to explain why the statement complained of is defamatory. This mirrors the legal threshold required by section 1 of the Defamation Act 1996, which has been found to fall some way below the threshold of “unlawfulness” required the E-Commerce (EC Directive) Regulations 2002. This inconsistency has, perhaps unsurprisingly, led to website operators relying on the latter of these defences and section 1 becoming all but redundant.
Clearly, ordinary internet users cannot be expected to consider the intricacies of all the legal defences that may apply to a potential libel action. However, it would not be too onerous a burden for the complainant to set out reasons why any facts complained of are false and why any opinions in the words complained of are unsupportable. This has now been recognised by the MoJ in its consultation document. However, it seems to distinguish between “core” requirements of a clause 5 notice (including explaining why the words complained of are defamatory) and some additional requirements (including stating which facts are untrue).
Some of the peers in the Grand Committee appeared to struggle with the distinction between “defamatory” and “unlawful”, which is not surprising. The same would be true of any non-libel lawyer. This, in my view, is all the more reason why the requirements of the clause 5 notice all need to be set out clearly in clause 5 itself, including those factors that address the “unlawful” threshold by requiring some consideration of factual information relevant to the potential defences of truth and honest comment. Leaving these additional factors to the Regulations will simply cause confusion, particularly for litigants in person.
In my view, there should also be an additional requirement for complainants to explain why the words complained of have caused or are likely to cause serious harm, as will be required by clause 13 of the Bill.
One need only spend ten minutes browsing Twitter or Facebook to see that a large proportion of online comment is of the utmost triviality. In this sense, legislating for defamation online poses unique challenges not often faced in the context of more traditional media. Indeed, it is often the more trivial cases such as reviews of small businesses, restaurants and hotels that cause problems for website operators rather than the obviously serious cases like that of Lord McAlpine where take-down is normally achieved very quickly. In the more borderline cases, whether an allegation is sufficiently serious to warrant a take-down is not always easy to determine without any evidence of harm.
Parliament has addressed the issue of claimants bringing abusive claims in the first clause of the Defamation Bill, effectively codifying Tugendhat J’s requirement in Thornton v Telegraph Media Group  EWHC (QB) 1414 for the claimant to demonstrate “serious harm” or the likelihood of it. Adding this as a requirement of a clause 5 notice will help to weed out frivolous claims and assist website operators to consider the merits of complaints.
Perhaps the most fundamental point of principle raised by the clause 5 procedure (as recognised in the House of Lords debate) is how it should approach anonymous speech. Under the proposed procedure, a website operator must remove the material complained of if the author does not respond or refuses to provide his full contact details in order to continue to rely on the clause 5 defence.
But is it right that if the author doesn’t respond, or responds but is unwilling to provide a home address for service, that the content simply comes down? What if the website operator is unsure of whether the requirement of serious harm has been met or whether the words are defamatory as opposed to mere abuse? Is it fair or appropriate to expect the operator of a small blog (or even Google on a mass scale) to make these decisions? Fair or not, the reality is that certainly the smaller website operators (other than perhaps the operators of this blog who know a thing or two about libel) will simply remove the material when in doubt.
As I have previously argued, I would therefore propose that a declaratory procedure be made available to claimants, website operators and authors (on an anonymous basis if necessary) in the event that the author remains anonymous and the website operator or author is able to make a compelling case that the material should continue to be published. Such an electronic procedure could easily be carried out by the Masters unit at the Queens’ Bench Division simply by bypassing the need for hard copy papers and using standard forms.
Such a procedure has received support from a number of peers and will now be scrutinised in greater detail before the Grand Chamber reports on its findings.
It is worth pointing out that the declaration procedure is not a device simply to allow website operators to leave more material on the internet. It would also allow a legitimate complainant cheaply and quickly to obtain an official document that would greatly assist him to achieve the take-down of defamatory material when it is subsequently republished elsewhere, as is often the case.
The deadline for submissions to the consultation is 31 January 2013.
Ashley Hurst is a Partner at Olswang LLP, specialising in media and internet-related disputes.