A proposed overhaul to the UK's stringent libel law could have "a chilling effect on those publishing material online", an influential human rights committee warned today.
The tabled amendments to the law of defamation could force website owners to take down defamatory material on request even if there is a valid legal defence to keep it online. That's according to Parliament's human rights joint-select committee, which criticised the draft legislation.
As the law stands right now, there are a number of defences to publishing a statement that damages a person's reputation. One such defence is simply the provable truth: it is defamatory, for instance, to call someone a crook, but it is a justified statement if, say, a court has found them guilty of fraud.
But Clause 5 of the proposed legislation allows someone to order a website to take down a defamatory statement about them regardless of any valid legal defence. If the website complies and censors itself, it can avoid further litigation. If the website operator chooses to stand by the defamatory material then it must run the gauntlet of the High Court.
It's this crucial Clause 5 that the committee of MPs and peers have urged the government to change. The panel's report reads:
We are not satisfied with the government's distinction in this matter. We think there is a real risk that website operators will be forced to arbitrate on whether something is defamatory or lawful, and to readily make decisions on commercial grounds to remove allegedly defamatory material rather than engage with the process.
As drafted, Clause 5 risks removing material from the internet, which, although it may be defamatory, may be lawful if a relevant defence applies. Material which is lawful may be suppressed because website operators are served with such notices. We recommend that the threshold for a Clause 5 notice should be elevated to 'unlawful', which would also ensure consistency with the E-Commerce Directive and the Pre-Action Protocol for defamation.
The committee chairman MP Hywel Francis said the panel welcomed the steps that had been taken in the bill to "protect website operators who are merely hosting content" to allow them to have a defence against the content published on their sites.
But he said they were concerned that freedom of speech could be threatened if the government didn't introduce a "higher threshold" to protect against material said to be defamatory being removed from the internet.
The committee said in its report that, under any new law, a defamatory statement should "only unlawful... if there are no defences that can be made against a claim for defamation, such as if the statement is true or if there is a public interest that the information should be published and the publisher has acted responsibly in testing the truthfulness of it".
The MPs and peers also called into question the bill's planned public interest defence to offer more protection to publishers by arguing that it lacked clarity.
"We propose an alternative that is both clearer and more flexible. This would help to ensure that the bill fulfils its main aim of rebalancing the law of defamation in favour of freedom of speech," the committee concluded in its report.
There has been an explosion in reports of online trolling cases in the UK this year, in part because local newspapers have heavily covered web attacks on ordinary folk as well as celebrities. In many incidences, the plod has investigated a nasty tweet or sick Facebook post in response to public pressure or demands from angry mobs on social networks.
The defamation law amendments are working their way through Westminster and a House of Lords committee will scrutinise the proposals next.
Separately, the Director of Public Prosecutions is putting the finishing touches to interim guidelines on how offences involving social networks and the internet should be prosecuted. He has previously warned cops in England and Wales to approach such cases in a measured way to avoid what he said could end up being millions of web trolling offences being prosecuted in courts across the land.
Late last month, the Law Commission opened a public consultation on contempt of court and the internet after a wave of high-profile cases of contempt online. ®