If you want fair libel law for the Internet age, get involved

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This is a guest post by Amanda Bancroft, a former lawyer who maintains a keen interest in law as it affects the digital sphere. She moved into the digital space in 2006 and currently freelances on a range of digital projects.

Last Tuesday, (15.3.11) the government announced its review of libel law by unveiling the draft Defamation Bill. You are probably already wondering what the heck this has to do with anything tech related. The answer is quite a lot, actually.

The law relating to defamation in England and Wales has a long established reputation as being one of the toughest regimes for writers and publishers in the world.

As online publication has grown, the court is faced with attempting to apply centuries old law to very modern situations. For instance, it is currently the case that in law, ‘publication’ occurs whenever an article is downloaded, artificially extending the one year limitation period of bringing an action and meaning that a new action can be raised on each ‘publication’.

We have recently (11.3.11) had our first Twitter libel decision here, where a court ordered Colin Elsbury to pay £3,000 to Eddie Talbot for claiming Talbot was removed by the police from a polling station, despite putting out a second tweet acknowledging that it was a case of mistaken identity.

The £3k damages is the least of Mr Elsbury’s worries however. He has also been ordered to pay Mr Talbot’s costs, estimated as being in the region of £50,000.

It is estimated there are 15 more libel cases involving Twitter in the court process.

Libel involving online publication in England and Wales is not limited to Twitter. There have been various cases involving bloggers (including the rare successfully defended case involving David Osler) and it is the unusual forum that has not at least received a threat of action.

Last November, a group including Mumsnet, AOL, Yahoo! and the Internet Service Providers’ Association wrote an open letter to the government seeking that:

* ISPs and forum hosts – ‘intermediaries’ – should not be forced to take down material without a determination by a court or competent authority that the content is defamatory. The claimant should in the first instance approach the author rather than an uninvolved intermediary;

* There should be a single publication rule and a limitation period of one year from original publication;

* Claimants in libel law should demonstrate that there has been a substantial tort in the jurisdiction in which they bring proceedings;

* There should be a public interest defence in cases where the material is on a matter of public interest and the author has acted in accordance with expectations of the medium or forum;

The draft Bill currently includes the following:

* A new requirement that a statement must have caused, or is likely to cause, substantial harm in order for it to be defamatory;

Currently there is no requirement to prove damage. Earlier this month, Lalit Modi attempted to have the case brought against him by Chris Cairns dismissed, on the basis that Modi’s expert estimated only around 35 people who have seen the allegedly libelous tweet.

Although Cairn’s own expert estimated around 100 people would have seen it, the High Court refused to dismiss the action, with Mr Justice Tugendhat saying:

“A claimant’s primary concern in a libel action is vindication, not damages for what has been suffered in the past,” he said. “So the damage that has occurred before the action is brought may not give an indication of the importance of the claim.”

* A new statutory defence of responsible publication on matters of public interest;

* A statutory defence of truth (replacing the current common law defence of justification);

* A statutory defence of honest opinion (replacing the current common law defence of fair/honest comment);

* Provisions updating and extending the circumstances in which the defences of absolute and qualified privilege are available;

* Introduction of a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one year limitation period has passed;

* Action to address libel tourism by ensuring a court will not accept jurisdiction unless satisfied that England and Wales is clearly the most appropriate place to bring and action against someone who is not domiciled in the UK or an EU Member State;

* Removal of the presumption in favour of jury trial, so that the judge would have a discretion to order jury trial where it is in the interests of justice.

The consultation on the Bill is now open, and will remain so until 10 June. Whilst the government wants views on the Bill generally, it is specifically seeking views on responsibility for publication on the internet in that it asks whether the law should be changed to give greater protection to secondary publishers such as internet service providers and discussion forums and/or ‘how the existing law should be updated and clarified’.

Nick Clegg has said:
‘…we want to go further [than the current draft]– we have also launched a consultation calling for views on changing the law to better protect “secondary publishers”, like discussion forums and internet service providers. They must not be unfairly targeted for content over which they have no control.’

A publisher the size of TechCrunch will hold quite some sway in submitting a collective response to the consultation, and is precisely the type of body the government is seeking views from. If you want to help formulate those views, the comment box is below.