A single complaint about an anonymous article or posting online could be enough to legally force a website to take it down – if new Parliamentary proposals on defamation get passed into law.
Though the draft Defamation bill mainly deals with traditional media and issues such as libel tourism, one of its expressed aims is to bring internet publishing and social media in line with the mainstream press.
"We agree that the internet cannot be exempt from the law of the land, and that the rule of law should apply to the fullest extent possible online," states paragraph 93 of the report.
The two core recommendations of the committee include a new "notice and take-down procedure", and "measures to encourage a change in culture in the way we view anonymous material that is user-generated, including via social media".
The notice and take-down procedure would mandate that, upon receiving a complaint, website editors would need to publish the complaint next to the original article. If the complainant wishes to push the matter further and get a take-down order, they can initiate a defamation action which would be cheaper and more streamlined than it currently is. It would involve both parties submitting a comment to a defamation judge who would then make a decision on the case.
This will apply to public parts of social media sites, such as Twitter, forums and public Facebook pages, as well as blogs and online publications. Mumsnet and TripAdvisor were both specifically named by the report. It will apply equally to sites that are moderated and sites that are not.
The scenario for anonymous postings – articles and presumably videos and sound tracks – is even tougher. If one complaint is received, the web editor or website hoster will have to take the post down, unless the writer or creator is willing to identify him/herself. Paragraph 125 states:
We recommend that any material written by an unidentified person should be taken down by the host or service provider upon receipt of complaint, unless the author promptly responds positively to a request to identify themselves, in which case a notice of complaint should be attached. If the internet service provider believes that there are significant reasons of public interest that justify publishing the unidentified material — for example, if a whistle-blower is the source — it should have the right to apply to a judge for an exemption from the take-down procedure and secure a "leave-up" order."
If the writer or creator does identifies him/herself, the dispute can then be taken to before a defamation judge, following the same notice and take-down procedure stated above.
One protection for anonymous writers is built into the bill – if there is an overriding public interest in publication, something that could protect whistle-blowers for example.
Acknowledging the practical limitations on what they recommend, including the time and expense of tracking down anonymous users, the committee expressed the hope that their new laws will change what they called the "Wild West" of online culture, making for a general shift over future years.
We expect, and wish to promote, a cultural shift towards a general recognition that unidentified postings are not to be treated as true, reliable or trustworthy. The desired outcome to be achieved — albeit not immediately — should be that they are ignored or not regarded as credible unless the author is willing to justify or defend what they have written by disclosing his or her identity.
View the Joint Committee on the Draft Defamation Bill - First Report on the Parliamentary Publications website ®