Defamation - staying protected

In March, with the wonderful support of mySociety, I presented a half-day training session at Mozilla London about the English law of defamation and its relevance to people running websites with user-generated content. There has been some interesting new law (including the Defamation Act 2013) which bears close examination.

People seemed to have fun and mySociety have kindly produced a video of me giving the event. I am not sure how watchable this really is because I was not presenting for a video, but for an audience. My slides (in PDF format) and some notes should be available on github pages.

My apologies for the very many errors and formatting infelicities there are bound to be. I am still new at publishing things in this way. Comments welcome, but errors, missing material or other areas where you think there may be room for improvement are best raised as github issues.

The defamation bill 2012 and the web

I have already commented on one aspect of the Defamation Bill 2012 that is directly aimed at operators of websites, but there are two other provisions, in the current draft (in the public bill committee) at clauses 8 and 10, which have a bearing on the way we do things on the web and which I do not believe have been properly thought through.

The host's nightmare

As soon as you allow other people to contribute material to your website, whether by comments to a blog, forum posts or something more substantial such as a wiki, you risk being held accountable for what they say. Even if you could rely on one of various defences, such as the "hosting" defence in the e-commerce directive, if a potentially defamatory comment has been brought to your attention, you are put in the invidious position of deciding whether to remove it or be prepared to defend your decision to allow it to stay. The various intermediary defences only go so far. If you bravely decide to keep it there, you may find yourself having to defend the statement itself. But of course if its not your statement, you may find that very difficult to do.

Last year I highlighted the problem this can cause for WhatDoTheyKnow but this is a problem that can affect vast numbers of website providers and of course any upstream posts they have. Surely this needs fixing?

What ought to happen?

Suppose someone - call them X - finds that a really damaging, but false, allegation has been made about them on a website run by Y, which will, or at least is likely to, cause X harm but the statement was made by someone else - call them Z. Y acting as an innocent host (forum operator, blogger etc). It seems right that X should be able to do two things:

• have the statement removed, or at least corrected in some way
• be compensated for damages for any harm they have suffered

These are two quite different things. It is only someone who is, in some sense, at fault for making the false statement who should be responsible for any compensation - where we can argue what "at fault" might mean. But, merely because someone ought not to be liable to pay damages for a damaging and false statement, does not mean they should not be responsible for removing it in any possible circumstances. For example, if X were able to prove in court that the statement was false - more than a claimant in defamation has to do right now - and satisfy the court that the statement should be removed at X's expense, then it seems hard to believe that X should have no way to compel Y to do so.

The defamation bill breaks this simple idea in at least two places.

Clause 10

The existing clause 10(1) says:

A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.

What this seems to be trying to do is to force claimants to go after the "real" culprit than an innocent intermediary. X must sue Z not Y. That seems entirely reasonable if we are talking about a claim for damages. If X can sue Z then they should get on and do it. But it may be utterly useless if X wants to prevent the continued publication of the statement. For example if X is able to sue Z and obtain damages but Y has closed Z's account (Z clearly being a troublemaker) then it is useless for X to obtain a court order against Z to stop the publication. Z no longer has the power to do so. Only Y can remove the statement, but X cannot sue Y - the court has no jurisdiction to hear their claim.

I do not believe this is what clause 10 is meant to do but as far as I can see, that is its effect.

The single publication rule

The bill also addresses a much older controversy, that goes back to the odd case of Duke of Brunswick v Harmer (1849) 14 QB 185. Charles II, Duke of Brunswick does not seem to have been a very nice man. He was drummed out of Brunswick and his duchy taken over by his brother. While living in Paris he sent a servant to collect a newspaper article about him in the archives of the British Museum. Although the limitation period since the article had been first published by the newspaper had long run out, he successfully sued for libel on the basis that there had been a fresh publication, to his servant, of the article when he had gone to collect it from the museum.

This rule has received lots of criticism over the years. See, for example, a Guardian article from 2005 suggesting that it threatens the internet. Newspapers that keep online archives have been particularly concerned. The limitation period for libel is one year after which time a newspaper editor could, potentially, breathe a sigh of relief, but if each time someone accesses an online newspaper archive there is a fresh publication, liability could last forever.

As an aside, the worst part of the Duke of Brunswick case has always seemed to me to be the fact that the Duke himself organised the publication to one of his servants. It seems unfair to allow someone to engineer an actionable wrong against themselves for which they can be compensated. Thankfully the world has moved on. Today the Duke of Brunswick's claim would almost certainly be struck out as an abuse of process because it fails to show a substantial tort, see Dow Jones v Jameel [2005] EWCA Civ 75.

It turns out that the multiple publication rule probably doesn't threaten newspaper archives. The Court of Appeal did not believe so in Loutchansky v The Times and the European Court of Human Rights, in the circumstances, agreed. Clearly there could be problems with a newspaper threatened with a libel action for an article published so long before that it would be difficult to defend, but if that were to happen, the newspaper's article 10 rights ought to permit the court to strike it out - at least the European Court of Human Rights seemed to think that is what ought to happen. I suspect our courts would agree.

The other concern about archived material was that once a defamation claim had been upheld, the article would have to be removed, changing the past in Orwellian fashion. Not so (it seems). All that is needed is the attachment of a short "Loutchansky" notice to the article indicating that its contents are disputed.

For example:

“Legal Notice 30 July 2009: Mr Budu denies that he was an illegal immigrant. He was granted indefinite leave to remain in the UK on 23 June 2004.”

appears on a BBC news report concerning the claimant in Budu v BBC and seems to have been sufficient.

It seems to me that the multiple publication rule is not as quite as broken as many commentators suggest, but nevertheless, I can see that it is something that might need further though. The Defamation Bill seeks to "fix" it.

Clause 8

Clause 8 essentially abolishes the rule in the Duke of Brunswick case. It applies where anyone:

• publishes a statement to the public (“the first publication”), and
• subsequently publishes (whether or not to the public) that statement or 
  a statement which is substantially the same.

In which case the one year provided for in the Limitation Act 1980 starts running at the first publication. It does not start running again at every subsequent web access.

The authors of this clause clearly had in mind newspaper archive style publication where the first publication is made in a blaze of prominence and later publications (via the archive) are simply parasitic on the first. A claimant, they obviously feel, has had an opportunity to make their complaint when the publication is first made and should not be able to challenge it later. For paper news that is later electronically archived I can see that might make sense.

But the web works differently. Many things are published in obscurity. In theory they are available to the world, but often search engines do not find them or at least consign them to many pages down the search results which is effectively the same thing. Sometimes something then happens to force the obscure into the limelight. A blog-post or an article might be found by someone influential and re-posted, re-tweeted or otherwise given more juice. It is at that moment that an obscure defamatory comment might come into the limelight and cause its subject problems.

As far as I can see clause 8 completely ignores the way the web actually works and relies on first publication being the most prominent. It gives a nod to a change in circumstance in 8(4) which says:

This section does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication.

But in my example the manner of publication has not changed. It is the way the web links to it that has and that is all important. The limitation period for defamation can be waived by the court in certain circumstances, so clause 8 might not be an absolute bar to a claim, but in my view it would be much better if the whole provision had been thought through properly bearing in mind the way the web now operates.

Trolls and the defamation bill 2012

The Defamation Bill 2012 had its second reading in the House of Commons today. One aspect of the bill which did not (as far as I can see) appear in the draft bill is a rather peculiar defence for website owners. In characteristic style, the BBC picked it up under the title websites to be forced to identify trolls under new measures and mangled the story completely.

The BBC's report mentions the case of Nicola Brookes, who appears to have been the victim of vicious trolling on facebook. It is reported that she obtained a court order forcing facebook to reveal the IP addresses of its users who harassed her anonymously using the site. I have no further details of that case, but it would seem to be an entirely conventional Norwich Pharmacal order used by Nicola Brookes in order to bring a prosecution for breach of the Protection from Harassment Act 1997. Her case has nothing (much) to do with defamation which is not a crime as implied by the BBC.

Her case is an illustration of the fact that there is already a fairly well tested power to force intermediaries, including social networking sites, to reveal the identity of wrongdoers (criminal or civil) by court order. There is no new power to do this under the defamation bill.

What the defamation bill has done is introduce a new defence for some intermediaries - "website operators". In the current draft of the bill, clause 5 applies where "an action for defamation is brought against the operator of a website in respect of a statement posted on the website." The operator has a defence is they are able to show that it was not them that posted the statement on the website.

I'm not exactly sure what "posted" means in this context. Does it include (say) the FOI responses of public authorities on www.whatdotheyknow.com? The public authority is the immediate cause of the appearance of a statement on the site, but the actual transfer from incoming email to web page is done by the site's own software. This does matter. It would be great if sites like whatdotheyknow had a defence against material they manage, but they are unlikely to want to test the matter in court.

In my experience these kinds of semantic difficulties are often sharpened up later on in a bill's passage. I hope that happens in this case.

The defence is not an absolute one. It an be defeated if three conditions hold:

• the claimant could not identify the person making the complaint
• the claimant gave the operator a notice of complaint relating to the statement
• the operator failed to respond to the notice of complaint in time
  

Where the content of the notice, what is "in time" and what an operator is required to do in response are to be specified in a regulations made later with an inevitably reduced level of parliamentary scrutiny, although the notice will be required to specifically point to "where on the website the statement was posted". Surprisingly many "take down" requests my clients receive don't even go this far.

So, lets be clear, there's nothing here that requires the website owner to do anything unless they want to. The sanction for non-compliance is that they lose a defence to a libel claim. But website owners already have a number of common law and statutory defences. In particular they are protected by Article 14 of the e-commerce directive. This is an absolute defence against almost any liability a website owner might have for information supplied by a third party provided that either:

• they don't know about the illegality or
• once they do know they act "expeditiously" to remove the information

This has never been a very good defence since the host has to make up their mind whether or not they know about the illegality, but of course, how can they know? If it is information supplied by a third party they may have no idea. The European Court of Justice has been relatively generous about "knowledge" in this context - being well aware of the difficulties the host may have - but in the context of defamation it is always going to be a tough call. The fact that something looks defamatory ought to be obvious in most cases just by reading it.

So the proposals in clause 5 might have the effect of persuading website owners to give up the identity of anonymous users of their site as a result of general fear, uncertainty and doubt. On the other hand there will be nothing to stop them removing the material if they prefer to do so.

My views of the bill roughly echo those of the Inform Blog. Some of the "reforms" may even make things worse since they copy (into statute) things the courts are doing already, but none of us will be entirely sure whether that copy was, or was intended to be, perfect, so there may be yet more litigation to sort that out. Why we need to enact reforms the courts have already worked out for themselves seems puzzling to me, but I am not a politician.

As things stand the proposed clause 5 has a number of oddities.

First, there's nothing that penalises false use of a notice of complaint, nor is there anything allowing the regulations to impose sanctions on a claimant who misuses the procedure. In my view that should be fixed.

Second, if the claimant can already find out the identity of an anonymous troll (via the Norwich Pharmacal procedure), why do we need to qualify the website owner's defence at all? Sure, a Norwich Pharmacal order is expensive, but then so is a libel claim. 

Third, and most odd of all, the new clause 5 would give an absolute defence for any comment which was from an identifiable individual. As it stands if I, under my own name, post the most unpleasant libel to a website hosted in the UK, the victim of the libel can sue me but cannot sue the website. But suing me may not be what the victim wants - I might be dead, have no money or have run away to another country where they cannot catch me.

What a victim will often want in such cases is for the libel to go away and/or be corrected. They want some way of having the libel taken down. As it stands clause 5 may take away the victims power to do that since the website owner will have no liability in defamation at all. In some cases (eg blog comments) even I may not be able to remove a publication I have made, so a court order against me (the guilty party) may also be useless. 

I am not sure that is what intended and expect that the wording will be tidied up considerably if the clause goes forward but I still doubt very much that it is the right approach.

Libellous freedom of information responses

For those that have yet to encounter it WhatDoTheyKnow (“WDTK”) is a website that helps members of the public make requests under the Freedom of Information Act. It displays the request and any subsequent communication (that was made via the site) between the person making the request and the public body in question. Anyone else may add comments, known as “annotations” at any stage of a request.

Like most other websites to which members of the public may contribute, WDTK has to be concerned about libellous contributions. As they note although they are forced to hide only a small proportion of the total number of requests, doing so still represents a significant effort for their volunteers. Most of the issues of libel arise either in the original request, or in subsequent correspondence including annotations made by third parties. But there is a more difficult problem where the libel is contained in the FOI response itself.

Consider the recent case of McLaughlin v Lambeth [2010] EWHC 2726 in which one of the alleged libels was contained in a “briefing report” prepared by the local authority and sent to the Department of Education. If a member of the public made a successful FOI request via WDTK for that report, WDTK's software would automatically republish it on their site. The Claimants in McLaughlin might well ask WDTK to remove the disclosed material — what then is WDTK supposed to do?

The difficulty is the classic chilling effect. WDTK are in no position to decide whether the briefing report is libellous, or whether their publication of it is defensible under some general libel defence — for example under public interest “Reynolds” qualified privilege. Unlike the commercial news media, who can take a view that profit made from publication is offset by the occasional loss of a libel suit and have the funds to insure against defamation claims, WDTK is a charity funded, volunteer run site. They are in no position to take the risk which means they cannot as robustly defend the public interest in freedom of information as they would like.

There is an absurdity about this since if one FOI request is successful then (because of the “applicant blind” approach) so ought a subsequent one. If I can obtain the briefing report under FOI, then so can you. It is unclear whether WDTK could display a message stating that a particular response had been removed because it was libellous, but that anyone can request their own copy by clicking on a particular link which would then send a fresh request to the authority. Such an approach might be a “publication” of the libel, depending on how one reads some rather old authorities.

The common law might recognise this absurdity and decide that publication of FOI responses was a form of qualified privilege. There is a line of old authorities that the publication of a fair and accurate copy of (or extract from) any register kept pursuant to statute and which by law the public are entitled to inspect attracts the defence of qualified privilege. For example publication of a copy of a county court judgment would attract common law qualified privilege. The reason for this defence was explained by Lord Esher MR in Searles v Scarlett [1892] 2 QB 56:

“The law provides that the register shall be a public document which anybody may consult for this purpose. That being so, the publisher of such a list ... is only doing for the public what they may do for themselves, and is only giving that information to the public and to tradesmen which the legislature has thought it right they should have.”

That reasoning appears to be equally applicable to republication of an FOI request. It is true that the cases are all concerned with documents or registers that the public is entitled to inspect, rather than request, but it seems to me that the right to email a public body and have a document sent in response is a very similar one and the common law reasoning could be extended if a court were properly persuaded to do so.

All this is not of much use to WDTK. The last thing they would wish to do is to litigate this question. What is interesting to lawyers is rarely rewarding to their clients. It would be much better if the question were settled by statute. Most of the old common law forms of qualified privilege of this type have been given statutory force by section 15 of the Defamation Act 1996. If any of you have the ear of government you might suggest that the addition of an exception for the publication of information released under the Freedom of Information Act (and similar legislation) should be added to part II of Schedule 1 of the Defamation Act 1996. If I am right that the common law covers this situation anyway, all such a change would so is enact in statutory form a defence which already exist.

Of course a wider reform of the law of defamation is also desirable, but failing that, this would be a useful improvement.