The problems that arise when defamatory material is posted online can make the task of a potential libel complainant, and that of his advisors, a particularly complex one. Jurisdictional concerns, and the need to establish the extent to which the material has been read (and so published) within England and Wales, can be thorny issues to address. However, in many instances a complainant is faced with an even more immediate problem, namely that the allegations have been published anonymously.
The High Court’s granting of a ‘Norwich Pharmacal’ order earlier this week – requiring Facebook to disclose details of alleged ‘cyber-bullies’ to complainant Nicola Brookes – shows that in some circumstances the courts are prepared to assist with ascertaining the author’s identity. However, applying for such an order can be a costly exercise, in which the prospects of success are far from certain. In many cases, the cost and risk are prohibitive for the individual who has been defamed, who can be left with little recourse for establishing the appropriate person to whom his complaint should be addressed.
This is a situation which may well be changed in light of the Defamation Bill which, following its presentation on 10 May 2012, this week received its second reading in the House of Commons. The Justice Secretary, Ken Clarke, has announced important new provisions in the Bill which will – for the first time – place a positive duty on website operators to try to identify those who have posted defamatory statements. As such, these proposals would provide claimants, who might otherwise have had to resort to risky and expensive legal action in an effort to identify those who have defamed them, with a far easier and cheaper method of doing so.
The Bill nevertheless strikes a balance between imposing this novel obligation on website operators, and affording them greater protection against libel complaints relating to their sites’ content. As the law stands, website operators can incur liability for defamatory material that they publish, notwithstanding that it has been authored by others. Indeed, in the absence of anything that might identify the author, website operators and service providers can find themselves the subject of legal complaints and demands for the removal of content. The Bill is intended to address this concern. It provides that a website’s operator would have a defence to a claim for defamation where it can demonstrate that it did not post the material concerned, but followed the procedure – to be set out by way of separate legislation – for identifying the author of that material.
The Justice Secretary is reported to have said of the proposals:
“As the law stands, individuals can be the subject of scurrilous rumour and allegation on the web with little meaningful remedy against the person responsible. Website operators are in principle liable as publishers for everything that appears on their sites, even though the content is often determined by users.”
“But most operators are not in a position to know whether the material posted is defamatory or not and very often – faced with a complaint – they will immediately remove material. Our proposed approach will mean that website operators have a defence against libel as long as they comply with a procedure to help identify the authors of allegedly defamatory material.”
If passed, it is expected that the Bill, which also looks more broadly at reforming areas of the law of defamation, will come into force later this year.
The second reading of the draft defamation bill was interesting, if only for the lack of understanding of the issues by the MPs present. Only a few seemed to grasp the realities of the difficulties caused by the plethora of defamation cases originating from the internet.
One point that was overworked was that of Libel Tourism. As Benjamin Pell (one of the foremost experts on libel cases heard at the High Court) points out, there have been extremely few libel tourism cases in the past few years, as the judges are aware of them and tend to reject them if the connection to the UK is tenous at best. Of course, the most prominent case was that of Mahfouz v Ehrenfeld which dates back to 2005 and it did bring the English & Welsh courts into disrepute in the rest of the world, by forcing certain American States to legistlate against enforcement of judgments. However, libel tourism is not the greatest problem facing defamation law. I’m afraid that this is reserved for the internet.
The internet allows just about anyone to easily publish defamatory statements about others and to do so behind the anonymity of a pseudoname or nickname. The new defamation bill seeks to prevent anonymous defamation, by allowing the websites to hand over the contact details of the 3rd party, so that the victim can then request that the defamatory material is removed.
There are several problems which the Bill does not address:
a). The contact details held by the website may not be correct. Many websites do not verify the names and addresses of their users. So the victim could end up receiving an address such as Mickey Mouse, 1 High Street, London, NW1A 1AA, which is totally useless.
b) Even if the website verifies the email address (by sending an acknoweledgement email), this address could be to a web-email host such as Hotmail or Yahoo, which can be created by anyone and has no connection to the true identity of the 3rd party.
c) Even if the email address is correct, the 3rd party may not respond to the victim’s correspondence (by email or letter) whilst the damaging and untrue defamation remains on the website, visible to all and continuing to injure the victim’s reputation. There needs to be a definitive time limit by which the 3rd party must respond, otherwise the defamatory post is removed.
d) If the real address or email addresses are fake, then the only means of finding the 3rd party are through the IP address. Not all websites capture the IP address. If the website does not capture it, then they cannot then rely on the defence under clause 5 that they supplied all the details necessary to contact the 3rd party.
e) Even if the website captures the IP address (and it is possible to use an IP proxy which masks the true IP address of the 3rd party) then the victim would have to obtain a Norwich Pharmacal disclosure order from the High Court to force the ISP (such as BT or Virgin etc) to disclose the identity of the IP user. The problem is that some ISPs only retain the IP data for 6 months and use dynamic IPs. IP numbers that change daily or even every time the user logs onto the internet, or switches their computer on. So the IP that a person uses to create a user identity on a website, could be different to the IP used to publish the defamatory remark. Worse than that, if the 3rd party creates their user name at an internet cafe and then uses the cafe (or another) to publish the defamatory material, then even the IP number would not help the victim, as it would resolve back to the internet cafe, not the person responsible for the defamatory post.
f) Another problem is that the Norwich Pharmacal disclosure order could cost the victim as much as £5,000 or more in legal fees – even if they do all the legal work themselves. Under the Totalise v Motley Fool authority, the ISP supplying the identity of the 3rd party is entitled to their legal costs, as well as the costs of extracting the data about the 3rd party. The problem is that most ISPs will send legal counsel to the Pharmacal hearing, firstly to ensure that the post is defamatory (the Lightman Test from Mitsui Ltd v Lexon Petroleum UK Ltd) and secondly that the information sought is capable of being provided. So long as the ISP does not oppose the Pharmacal request, they are entitled to the costs of representation. This could amount to anything over £5,000 or a lot more. As a result, even if the true identity of the 3rd party is disclosed and they are contacted, they are very unlikely to settle a claim which includes right from the start the costs of the Pharmacal application. So the claim will inevitably end up in protracted litigation, costing both sides a great deal and clogging up the courts.
g) Jacob Rees-Mogg MP pointed at another problem, that Judges cannot be trusted to get things right. I know this from bitter experience, as does Simon Singh, Tom Bower and Ben Pell, all of whom were victims of Mr Justice Eady’s rough justice. There are very few specialist defamation judges. Unfortunately, they do not always get it right. Simon Singh ended up with a massive legal bill (which should not have happened) because Eady J made a decision that Simon was making a statement of fact about the BCA treatments, instead of the opinion that he was actually writing. Thankfully, he was able to turn to the Court of Appeal. However, it took 2 years and hundreds of thousands in legal fees to eventually obtain a judgment which caused the BCA to remove their ridiculous claim. In the case of Tom Bower, Eady J made two decisions during the jury trial which meant Tom Bower had to go to the Court of Appeal during the trial, to get the Eady decision overturned and allow the jury to hear information that was extremely relevant to the defence. The Court of Appeal said that Eady J had almost caused a miscarriage of justice because of his decision. If Tom Bower had been forced to rely on Eady J and not on a jury, it is highly doubtful that he would have obtained justice. In my own claims, some of which are still outstanding 5 years after the original defamations, Eady J made contradictory statements in his judgment, admitted that he’d made a mistake and even issued a second judgment after the first, which prejudiced the appeal which he’d already allowed. This is now a matter before ECHR.
The new bill does away with the right to jury trials. But if we cannot trust a judge to get it right, we must have that right to present the evidence to a jury, who will see the evidence for what it is an not be influenced unfairly by one side or the other.
h) The emphasis of the new bill is to increase the protection for defendants by affording them new defences, without protecting the honest man in the street, who cannot afford to pay for lawyers to show significant harm to his reputation before bringing an action, let alone all the steps needed to find the 3rd party that is attacking him. Access to justice is inherent in Article 6 of the Human Rights protocols. However, if the individual is of modest means, they cannot afford to spend the many thousands required to seek justice. Which is why we need a simplified ‘lower court’ track to allow victims to seek justice with minimal cost. Many 3rd parties will agree that they posted defamatory material in the heat of the moment. They may not have considered the damage that their statements would do to the victim of their attack. Nevertheless, they are less likely to apologise and withdraw their statement if doing so means that they would also have to accept a legal bill in the thousands. The old phrase, ‘speak in haste, repent at leisure’ comes to mind. If the identity of 3rd parties can be verified by the websites (even by using a credit/debit card) to find the true identity, then the victim could contact them to negotiate or mediate a dispute away with the minimum of fuss, a handshake and the settlement of minor costs. However, if the 3rd party seeks to avoid their responsibilities and they did act maliciously in making untrue statements intended to cause harm, then the victims actions should allow them to claim all their legal costs back from the 3rd party, so they are not out of pocket for the harm caused. Likewise, if the 3rd party had good reason to make the statement, but the ‘victim’ was attempting to silence free speech, then the courts would have a chance to strike out the claim at the mediation stage, before it costs either side any serious damage. If the ‘victim’ continues their illconceived claim, then they do so knowing that they would open themselves to a cost liability further down the line. Allowing claims to be heard in the lower courts by a trained mediator is one method which was proposed by some eminent defamation judges as a way of reducing the number of cases that make their way to the High Court. Leaving only the most serious of claims to go there.
I could go on and on about the mistakes in the draft legislation, but it appears to me that they make it harder and harder for the true victims of defamatory posts or organised attacks, to seek justice, without having to resort to harassment law instead of defamation actions. Unfortunately, harassment law does not adequately compensate the victims of defamation. If the present proposed bill is enacted, then I can only forsee that victims of defamation will either be detered from seeking justice, denied from seeking justice or end up seeking justice from ECHR instead of the English & Welsh courts. It’s a pity that the drafters of the bill did not consult with the many litigants involved in internet defamation cases. Thankfully, Simon Singh did make an input which should prevent cases similar to his ever reaching the courts. However, the increasing number internet attacks (by trolls or whatever you want to call them) has arisen because the courts made judgments which allowed them. Allowed them by stating that it was not defamatory so long as the attack contained vulgar abuse, even though another decision agreed that if there is enough vulgar abuse, this could amount to being defamatory, on the principle that if you fling enough mud at a wall, then some of it will stick.
We have to protect people who’ve been the victim of untrue defamatory allegations and make it possible for them to seek justice without bankrupting them. The present proposed bill would deny justice to the innocent and protect the guilty.