Following a recent conference organised by Justice,  LSE’s Paul Moura looks at proposals for new ways of handling defamation cases and what Leveson might mean for new online media

What effect might the proposed defamation law reforms and the Leveson Inquiry have on online publication?  In a media environment where bloggers, tweeters, and other social media users are taking a more prominent role in the distribution of news, it is clear that the current regime must be updated to account for new media technologies.

At a recent Justice conference, Life and Law Online: Defamation, Freedom of Expression and the Web, key experts came together to analyse the new draft Defamation Bill and the developments within the Leveson Inquiry, as well as the potential consequences for libel, privacy, and freedom of expression online.  The panel emphasized the increasing focus on the role of Internet intermediaries in defamation claims.  Ashley Hurst, a partner at Olswang LLP and solicitor-advocate specialising in media disputes, noted traditional concerns about chilling effects on the newspaper industry caused by UK libel laws.  Nonetheless, he pointed to an arguably greater chilling effect happening as a result of evolving intermediary liability laws, particularly in situations where online speakers are difficult or impossible to identify.

The Anonymous Speaker Dilemma

Recently, more and more libel injunctions are being granted against online intermediaries, requiring them to remove allegedly defamatory material posted by anonymous authors.  In light of these developments, the Ministry of Justice is currently reviewing regulations concerning the Clause 5 defence of the Defamation Bill.  The proposed revision removes immunity for intermediaries if the claimant follows proper procedures in giving a notice of complaint to the intermediary, and if the claimant shows that it was not possible to identify the actual author of the statement.

According to Hurst, a primary issue for regulators is whether, in order for intermediaries to preserve a clause 5 defence, the default position should be to compel intermediaries to remove content if the actual author remains anonymous following a removal request.  This, of course, places the burden of removal on intermediaries and risks substantial chilling effects.  Alternatively, the default position could be to allow the material to remain online.  Claimants would then need to result to more complex strategies such as Norwich Pharmacal orders.  These are orders to intermediaries to reveal the IP address, registration details, or other identifying information of authors who choose to remain anonymous.  The Norwich Pharmacal process is also problematic, as claimants would need to initiate expensive proceedings and participate in a full hearing on the merits of the case.

The Proposed Middle Ground

Hurst has proposed a more simplified, low-cost procedure for defamation claims, involving standard forms and an elimination of the requirement of a formal hearing.  He envisions a preliminary stage of dispute, where claimants would demonstrate a prima facie case for defamation before the Master.  If the Master finds that a prima facie case has been established, he may then order the intermediary to temporarily remove the material until a final determination is made.  Hurst emphasized that the obligation to remove should be incorporated into the Clause 5 procedure.  Namely, intermediaries would need to comply with the Master’s determination in order to later assert immunity.  Hurst’s proposed framework resembles the two-stage dispute process discussed by Andrew Scott and Alastair Mullis, and seemingly also opens the door for other discursive remedies during this first stage, such as a correction or ‘right of reply.’

Hurst predicted that intermediaries would support this two-stage framework, as it would leave removal determinations to the Master and not to intermediaries themselves.  Nonetheless, the motivations of intermediaries and the enforceability of a removal order were subject to dispute among panellists.  Emma Jelley, Senior Regional Counsel (UK & Ireland) at Google, noted that intermediaries may generally prefer to maintain as much material online as is possible based on principles of free expression.

The Leveson Inquiry and the Draft Defamation Bill – already “out of date”?

A central notion circulating among the panellists was a prediction that the Defamation Bill and the Leveson Report will have minimal effect on Internet publishing.  Hurst pointed out that defamation regulators have placed online sources and social media farther down on the agenda.  Keith Mathieson, partner at Reynolds Porter Chamberlain, echoed Hurst’s sentiments.  Mathieson emphasized that the Leveson Inquiry’s Terms of Reference refer only to the “press,” while social media remain the elephant in the room.  Indeed, no Internet publishers were initially even asked to provide evidence.  Only at the tail end of the Inquiry did Mail Online editor Martin Clarke give evidence, following a late request to appear.

Hugh Tomlinson QC of Matrix Chambers also forecasted a minimal effect on Internet publishing.  He suggested that reforms to Clause 5 of the Defamation Bill provide little practical benefit if the actual Internet authors cannot be compelled to remove content.  Furthermore, Tomlinson predicted that the proposed new Public Interest Defence, which would provide immunity if the defendant honestly and reasonably believed that the statement was in the public interest, would be too unworkable in practice and its provisions too difficult to navigate.

It remains to be seen how the final Defamation Bill and the Leveson Report might directly address online platforms.  Nonetheless, the panellists’ predictions continue to highlight the Internet’s notorious resiliency to regulation and reform.