McEvedys Solicitors & Attorneys specialises in litigation, media and intellectual property law. It was founded by Victoria McEvedy who has a particular interest in defamation law in the context of publication on the internet. Her clients include some of the largest online publishers in the UK and she regularly advises on issues arising from content in consumer bulletin boards and other forums. She has given Inforrm permission to reproduce her submission to the government draft defamation bill consultation.

We note the express policy objective and core aim described in the notes to the draft Bill – to ensure defamation law strikes a fair balance between freedom of expression and the protection of reputation. Indeed, the draft Bill is arguably a result of the prevailing consensus that these competing rights are not now well balanced, yet (with two exceptions) the Bill merely codifies current case law – and therefore enshrines rather than alters the balance.

While we welcome codification for its own sake – as the law should be as accessible and predictable as possible – with respect, in our opinion, more radical solutions are called for. This draft Bill is written by defamation lawyers – for defamation lawyers. We do not think this is the right approach in the information age – where every man is an author and publisher. The law should strive to be more accessible and more predictable than ever before.

In particular, we note the proverbial elephant in this Bill is the law on meaning – which the Bill avoids – in part by employing the new term ‘imputation’ – despite the fact that it arises in relation to §1 and §3 – where it is a key issue. The law on meaning desperately needs clarification and simplification – but is not tackled in the Bill.

Publication on the Internet

This is a specialist area of our practice and we regularly advise online publishers and ISPs and offer our observations based on this experience.

It is our view – and we recently undertook a survey and analysis of cases in this field – that section 1 of the Defamation Act 1996 is redundant as it is overly complex and offers a narrower scope of protection than the Ecommerce Regulations – which are therefore being relied on in practice. We recommend section 1 be amended both to state the survival of common law innocent dissemination – as recently clarified in Metropolitan Schools v DesignTechnica [2009] EWHC 1765 (QB) – and to bring the scope of section 1 into line with the Ecommerce Directive -or better still, to delete the current section and cross-refer to the protection of the Directive.

There is a strong economic incentive for the ISPs to merely remove content on receipt of a Takedown Notice. That was the intention of the drafters of the Ecommerce Directive -namely that ISPs would not have to act as judge and jury and determine the merits of any dispute but could remove and allow the parties to take their issues to the courts (See the analysis of the US model in the DMCA and the Directive here. There is no doubt this is chilling in its effect on speech).

Wealthy individuals and corporates are often able to suppress all negative content about themselves – except where it remains on the site of a reputable traditional media outlet or other publisher who cannot benefit from intermediary defences. We are in favour of a statutory put back regime – like the US DMCA model – although US statistics show that that is very rarely employed and content tends to find a new home rather than being put back. We favour put back however on the basis that at least one of the functions of law is to educate and the message it sends is an important one about the value of Freedom of Expression. The real difficulty is that while in the copyright context it is easy for an author/publisher to know whether they have rights to the content (that they are prepared to assert formally on pain of perjury) – it is much more difficult for a lay author/publisher to know whether they have a defence to Libel without taking (expensive) legal advice – thus our comments above and below urging plain English in the draft Bill.

The option of requiring claimants to obtain a court order for removal is also problematic in Libel due to the rule against prior restraint (applicable when a defendant indicates he will defend on grounds of Truth) which means that often the matter will have to go to full trial before an order for removal would be granted. While that could be changed by statute – any interim relief would engage the policy concerns that led to the rule against prior – restraint namely the concern that the courts not be perceived to engage in censorship. The rule however may not survive much longer as its pre-determined outcome does not reflect the balancing of the competing values and Articles – under the Human Rights Act and the European Convention, as noted by Eady J. in his recent speech at the City University and see Sunderland Housing Company v. Baines [2006] EWHC 2359 (QB).

As to the Booksellers’ Association’s concerns – we refer to our comments above as to the scope of section 1 and the concurrent coverage of the Ecommerce Directive. We also note that Metropolitan Schools (above) has clarified that common law innocent dissemination remains intact in original scope. We believe that on the whole the current law works reasonably well. Requiring claimants to sue for removal is problematic as so few could afford to do so. In any event, in practice issues would be resolved largely during pre-action correspondence – so that it would operate in a manner very similar to the Takedown regime in the vast majority of cases.

As to practical problems – many ISPs hosting user generated content – while not moderating or approving pre-publication -have communities with teams of volunteers who enforce acceptable use polices and language standards and tag or remove material. This activity might be regarded as classic moderating or editing and create liability on the basis that knowledge of the relevant content might be imputed to the ISP from the volunteers -perhaps on an agency theory. However, ISPs like the tone/civility and sense of community it fosters – and see it as improving the behavior of members. There is no question that it reduces legal disputes. ISPs would greatly welcome a means of creating a legal boundary between their own knowledge and liability – while allowing the community to continue these policing efforts. A Good Samaritan provision might protect this conduct without jeopardizing the ISPs’ defenses.

ISPs faced with Takedown threats based more on might than right – have asked us to help them fight Takedown and we then remove and then legal the content and re-post it once it can be established that there is a legal basis to defend a claim of Libel – often by working through the Reynolds factors or establishing the factual foundation for fair comment. There is a risk in this – it might jeopardize the ISP’s ability to claim neutrality and the status of a mere host in relation to other content – although current cases and current practice allows ISPs to claim the immunity in relation to some content while acting as a publisher in relation to other content – although we are concerned this may not survive closer scrutiny in future (See Imran Karim v Newsquest Media Group Limited [2009] EWHC 3205, Kaschke v Hilton [2010] EWHC 690, Mulvaney v Betfair [2009] EIHC 133 and the discussion of this issue here).  This is an area that would benefit from further attention.

This is an edited extract from McEvedys’ submission to the government’s draft defamation bill consultation. The full response can be found here.