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.