The Government has recognised when drafting clause 5 of the Defamation Bill that there is a need for individuals and companies to be able to complain effectively to internet intermediaries in respect of libellous content but that internet intermediaries need greater protection from liability for content for which they are not responsible. However, as discussed in the first part of this post, in trying to strike a balance between claimants’ reputations and freedom of speech, perhaps the most difficult issue is how to deal with anonymity.
The main problem with the “leave up” approach to the Regulations, as identified in the first part to this post [LINK], is that claimants currently do not have a cost-effective legal remedy to obtain removal of the material complained of if the internet intermediaries refuse to remove such material or if the claimant can be contacted but isn’t worth suing. Interim libel injunctions in respect of anonymous material have been more readily granted in recent years; see Sunderland Housing Group v Baines ( EWHC 2359 (QB)), and various ‘Solicitors from Hell’ interim hearings such as Robins v Kordowski ( EWHC 1912 (QB)), but they are still very expensive to obtain and require a claimant to commence proceedings and proceed to a full merits hearing.
If a more streamlined process could be developed as part of the clause 5 procedure, whereby a claimant can quickly and cheaply obtain a declaration that he has met the basic requirements of a libel claim, this problem might be overcome.
I am not suggesting an injunction procedure through the back-door. If such declarations were available, they ought not to be capable of binding third parties in the same way that interim injunctions do and would not have a penal effect. They would simply mean that if the internet intermediary continued to publish the words complained of after service of a clause 5 declaration, they would not be entitled to rely on the clause 5 defence. They would still however be entitled to rely on Section 1 of the Defamation Act, Regulation 19 of the E-Commerce Regulations, and all of the usual defences to defamation. The declaration procedure would simply allow internet intermediaries to elect the further defence of clause 5 in circumstances where they think the material should stay up but they cannot contact the person who posted the statement.
Such a procedure would need to be simple enough for those who cannot afford to pay for specialist legal advice with standard forms and a low cost, electronic procedure that would not require a hearing or a detailed reading of Part 23 of the Civil Procedure Rules.
It would be important for such a procedure not to overburden the courts and so it should only be available to claimants who follow the clause 5 procedure and demonstrate that it was not possible to obtain an effective remedy against the person who posted the statement. The Master, or whoever would be responsible for adjudicating such applications, would of course be required to apply established legal principles in deciding whether a clause 5 declaration should be granted, including making sure that the words complained of meet the necessary threshold of seriousness and that there are no obvious defences such as privilege or honest comment. In my view, this would dissuade many claimants from using such a procedure, particularly if they were required to make a statement of truth as part of the application.
Such a new procedure need not drive a coach and horses through the long-established principle in Bonnard v Perryman ( 2 Ch. 269 (CA)) (whereby injunctions are usually refused where the defendant expresses a bona fide intention to justify), as in most cases the proposed defendant is unlikely to come forward to oppose the application. If a posting is taken down following service of a clause 5 declaration and the person who posted the statement then returns from holiday to discover that this has all taken place in his absence, he can simply re-post his original posting. If it is serious, he may be unwise to do so but he will not be in contempt of court.
In any event, even if the anonymous defendant’s stated intention to defend the posting is brought to the attention of the court, in deciding whether to grant a clause 5 declaration, the Master would simply be required to carry out the balancing exercise that judges carry out when considering injunctions in the Solicitors from Hell type cases.
The key aspect of this proposed procedure is that it is the courts, not the intermediaries, who are deciding whether a complaint meets the basic requirements of a libel claim.
This proposal might meet some opposition from those who believe that it may place an additional burden on the courts. In my view, it would not and might even reduce the number of Norwich Pharmacal applications in cases where claimants are forced to try to identify the anonymous poster. However, if that is a legitimate concern, alternatives may be to extend the role of the Information Commissioner or create an internet ombudsman to adjudicate on clause 5 applications. Instead of issuing declarations, the Information Commissioner’s office or the internet ombudsman could simply issue a notice, the effect of which would be to disapply the clause 5 defence if the intermediary subsequently fails to remove the defamatory content within a specified time period of service of the notice.
Whilst creating a new clause 5 procedure for libel claims may be a radical suggestion, and might involve a few amendments to the Civil Procedure Rules if Masters are to be the adjudicators, it is in my view worthy of further consideration to avoid clause 5 becoming a damp squib in practice. If there is insufficient support for such a procedure, then more thought needs to be given as to how to preserve more legitimate speech on the internet, anonymous or otherwise, without depriving deserving claimants of a speedy remedy.
If the effect of clause 5 is that internet intermediaries have to put multiple complaints through an optional complex procedure with stringent time limits, they will simply revert to the current position of saving hassle, administrative expense, and potential liability by taking the cautious approach of removing material upon complaint.
At the very least, the Government ought to give consideration to a procedure whereby a claimant can obtain a declaration of falsity from the court, which might prevent many libel cases getting bogged down in disputes about honest comment and qualified privilege and give claimants something concrete to wave at anyone who repeats or threatens to repeat the defamatory allegations.
Ashley Hurst is a Partner at Olswang LLP, specialising in media and internet-related disputes