Despite the growing number of internet libel cases in recent years, most of the debate around libel reform has concerned the chilling effect of UK libel laws on the newspaper industry. However, there is perhaps a greater chilling effect happening as a result of European intermediary liability laws, which have led to internet intermediaries removing defamatory content without a great deal of scrutiny. At the same time, many genuine victims of online defamation are being left without a remedy due to the challenges of taking action against anonymous users.

As more and more readers turn to online sources and social media for their news, these issues mean that internet libel law is arguably more in urgent need of reform than the traditional libel laws. Yet, surprisingly, they have received only brief scrutiny by the Leveson Inquiry and have been some way down the agenda during the Defamation Bill debate.

In the first of this two-part post I focus on what makes internet libel different from libel in more traditional forms of media such as in newspapers and on television. In the second part, I then go on to suggest a new streamlined procedure to obtain a declaration that might counter some of the challenging issues faced by claimants and internet intermediaries in relation to anonymous material. Such a procedure would be aimed at removing internet intermediaries from the decision-making role in difficult cases and preserving more legitimate speech on the internet, whilst at the same time offering claimants a cost-effective and speedy remedy for genuinely defamatory material on the internet.

The following five key factors are those that I consider to be the most distinguishing features of internet libel cases.

1) The nature of the authors and editors

Defamatory statements posted on the internet are of course subject to the same libel laws as defamatory statements published in newspapers and broadcast through television: the claimant is still required to show that the statement complained of is defamatory of the claimant and has been published to an extent that is sufficient to justify bringing proceedings for libel.  It is then over to the defendant to either admit liability or prove that one of the defences to libel applies.

However, the makers of defamatory statements on the internet are often not newspapers or other media outlets which have the resources for content to be legally checked before publication; bloggers, Tweeters, and Facebook enthusiasts now have a direct route to wide audiences without any pre-publication lawyers explaining the difference between, for example, statements of fact and opinion or the key ingredients of Reynolds qualified privilege. Most such internet users simply publish without a second thought as to whether they should contact the subject of their rant for comment prior to publication. They also do not have the relatively deep pockets of traditional media owners, who at least usually have the option of defending libel cases and have legal expenses insurance.

If the thought of a libel action against a newspaper is unattractive enough, a libel action against a disgruntled litigant in person, who does not engage in the legal process or have any prospect of satisfying any damages or costs awards made against him, is rarely even worth considering unless the claimant has very deep pockets and has been left with no option but to sue in order to restore his reputation. There is also the risk that such action can invoke renewed widespread coverage of a story which may otherwise be approaching the end of its shelf-life.

2) The permanence and speed of republication

Another distinguishing feature of internet libel is that material posted on the internet does not become tomorrow’s chip paper but is stored openly on the internet, searchable by increasingly powerful and far-reaching search engines. This can mean that a story which may not have been prominent when first published can gather a head of steam once discovered by a discerning journalist or blogger. It can then become viral and be republished around the world in seconds.

This permanence and speed of republication makes damages difficult to quantify and injunctions almost impossible to enforce on the internet.  It also means that the best strategy for claimants is often either to do nothing for fear of “stoking the hornet’s nest” or to secure the removal of the material by contacting internet intermediaries as quickly as possible with a take-down request, often without seeking damages, apologies and costs recovery from the author. Indeed the reality is that, in many circumstances, PR advisors and search engine optimisation specialists offer more cost-effective solutions to reputational damage on the internet than libel lawyers.

3) The role of intermediaries

An important distinguishing feature of internet libel is the role of numerous intermediaries in the publication process, which is not directly comparable to the equivalent role of those printers, newsagents and other intermediaries in the newspaper industry.

First, there are the providers of the telephone lines and broadband services through which users connect to the internet. Such providers are considered to be “mere conduits”, i.e. not common law publishers, and therefore immune from liability for defamation; see Bunt v Tilley & Ors ([2006] EWHC 407 (QB)). Further roles may then also be played by website hosts, internet platforms, blog editors, website operators and search engines, all of whom perform slightly different functions in the publication process and have different technical means by which they could prevent further publication of defamatory material if so required. We wait to see whether the Court of Appeal in Tamiz v Google ([2012] EWHC 449 (QB)) will offer any clarification as to how far the mere conduit principle extends, in particular to cover blog platforms as was held by Eady J at first instance in that case.

The above intermediaries have in recent years been the target of many internet libel claimants with the result that defences have been developed (in particular Section 1 of the Defamation Act 1996 (“Section 1”) and Regulation 19 of the E-Commerce Regulations (“Regulation 19”)) that are aimed at providing internet intermediaries with at least some protection for unlawful material for which they are not responsible.

However, many commentators believe those defences have not gone far enough in Europe to protect intermediaries from libel actions because the immediate response of many internet intermediaries to a defamation complaint in recent years has been to take steps to remove the material immediately upon complaint. This, it has been argued, has given encouragement to some individuals and companies to seek to remove internet content that may not in fact be actionable in law upon close scrutiny.

These arguments have been the driving force behind clause 5 of the Defamation Bill, a new proposed defence for so-called “website operators” that aims to provide further protection to such website operators in circumstances where the complainant is able to pursue their complaint against the person who posted the statement, provided the website operators follow a procedure. Clause 5 is due to be debated later this year in the House of Lords and the procedure will form part of Regulations to follow the Bill, which are currently being drafted by the Ministry of Justice. However, as discussed below and in the second part of this post, the current clause 5, in my view, is unlikely to achieve its objective of offering significant further protection to internet intermediaries.

It is also important to note that notwithstanding the fear of intermediary liability in Europe, some of the world’s major internet intermediaries are primarily based in the United States where the collective effect of the First Amendment, Section 230 of the Communications Decency Act (“Section 230”), and the SPEECH ACT of 2010 is to make any foreign libel judgments that impose liability on internet intermediaries in the US almost impossible to enforce if those intermediaries do not have European assets.  This has enabled some of those companies to take a slightly more liberal approach in responding to defamation complaints from Europe than might be taken by European web hosting companies, which has led to some frustrations from a claimant perspective.

4) Triviality

A common feature of internet libel is triviality. Thousands of defamatory statements are made daily on Twitter, Facebook, blogs and other online outlets but many go relatively unnoticed and many robust victims simply turn the other cheek as they have neither the time nor financial resources to fund a libel complaint.

Further, defendants are increasingly seeking to strike out trivial claims as an “abuse of process” in circumstances where the claimant cannot demonstrate that the allegations are sufficiently serious or that there is insufficient publication; see, for example, Kordowski v Hudson ([2011] EWHC 2667 (QB)), Wallis v Meredith ([2011] EWHC 75 (QB)) and McBride v Body Shop Int Plc ([2007] EWHC 1658 (QB)).

Despite this, many libel complaints are made on a daily basis to internet intermediaries that would probably not be successful in the libel courts because the allegations are not defamatory at all, are too trivial, or the extent of publication is not sufficient – even before any further consideration of the usual defences of truth, honest comment and so on.

5) The problem of anonymity and the Norwich Pharmacal procedure

In addition to the fact that many authors and editors of defamatory statements on the internet are not worth suing, many of these users prefer to remain anonymous, particularly when they deliberately set out to use the internet to cause damage to a former employer, competitor, or spouse. This has led to an increase in Norwich Pharmacal disclosure applications, which are now commonly used by libel claimants to discover registration details, IP addresses and other identifying information to be able to trace anonymous internet users.

The Norwich Pharmacal procedure involves making an application to a Master or a Judge in the normal way by providing to the court an application notice, draft order, and supporting evidence by way of witness statement. The evidence needs to explain why the claimant has a cause of action against the anonymous proposed defendant and why the disclosure of that person’s identity is necessary and proportionate in order for the claimant to take legal action to restore his reputation. In justifying such disclosure, the court’s attention must be brought to the Article 8 privacy rights of the proposed defendant whose private information is being sought.

As has been shown in a number of cases – note in particular Sheffield Wednesday & Ors v Hargreaves ([2007] EWHC 2375 (QB)), G & G v Wikimedia Foundation Inc. ([2009] EWHC 3148 (QB)),and most recently Noordeen v Hill & Health Research Authority ([2012 EWHC 2847 (QB)) – this is not an entirely straightforward task and usually requires specialist lawyers. Depending on the complexity of the publication complained of, the legal costs for obtaining a single Norwich Pharmacal order are usually at least £2,000 and often more. There is also no guarantee that such orders will achieve their objective of identifying the defendant. If all that is obtained from the intermediary is an IP address, it may be necessary to obtain further Norwich Pharmacal orders in order to trace the IP address to a real address, which may turn out to be that of an internet café.

As stated above, the Government currently intends to introduce a new defence in clause 5 of the Defamation Bill.  In order to defeat that defence in its current form, the claimant will be required to show, amongst other things, that “it was not possible for the claimant to identify the person who posted the statement” (clause 5(3)(a)). The precise meaning of this sub-clause is not entirely clear and the latest amendment by the House of Commons has done little to clarify it; see clause 5(4) which states “For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person”. Does this mean that claimants need to exhaust the Norwich Pharmacal regime before being able to pursue an internet intermediary? What if the claimant can identify the person who posted the statement but he is based abroad and the claimant cannot serve proceedings?

The Ministry of Justice is also currently considering the Regulations that are intended to follow clause 5 and it was stated during the Bill’s second reading in the House of Lords that the Government will seek views on the content of these Regulations by the end of the year. One of the biggest issues to resolve is what the default position should be in circumstances where (a) the person who posted the statement complained of cannot be contacted by the website operator following receipt of a notice of complaint or (b) that person responds to a notice of complaint by the website operator but refuses to take it down or be identified.

If the default position is that the material complained of should be taken down by the website operator, in my view clause 5 will not have advanced the current position very far in respect of anonymous content because in the majority of cases the author will not respond or provide contact details within the specified time period.  This will leave intermediaries in the same position as they are now – needing to take the material down in order to avoid potential liability.

The alternative to the take-down approach is that the material is allowed to remain on the internet. However, this too is problematic as the claimant would be left needing to seek a Norwich Pharmacal order in an attempt to bring proceedings against the person who posted the statement, an expensive approach that does not guarantee results. It would also render the defences under Section 1 and Regulation 19 redundant and clause 5 would provide immunity to website operators akin to section 230 in the United States.  This would not of course be acceptable to claimants.

There is a possible middle ground between these two options, which I shall briefly explore in the second part to this post.

Ashley Hurst is a Partner at Olswang LLP, specialising in media and internet-related disputes