Libel, privacy and freedom of expression online: the future, the Defamation Bill, Leveson and beyond, Part 2 – Hugh Tomlinson QC

This is the second part of a two part post, the first part was published on 7 February 2013.

Licensing of the presses disappeared at the end of the seventeenth century and, over the next three centuries parliament did not seek to impose any general legal framework on the press.  This remains the position. Unlike many other countries who are subject to the European Convention on Human Rights the United Kingdom does not have any general legal framework to define the rights and responsibilities of the media.

The Defamation Bill and the Leveson Inquiry lead us immediately to the consideration of whether such a general legal framework would be desirable and, if it were to be established, whether and to what extent it should or could be extended to online information providers.

I have already mentioned the fact that, at present, neither the Bill nor the the Inquiry are focussed on “online” publication.  In particular, the Defamation Bill as presently drafted would have no impact on the issues which have been thrown up by the recent “Lord McAlpine” case.  The former Conservative Party Treasurer was wrongly named or linked by many hundreds, if not thousands, of Twitter users to allegations of child abuse in North Wales in the 1970s and 1980s.  He is now, apparently, planning to sue these individuals for defamation.  The question as to whether they are liable in defamation would, in reality, be determined in the same way under the regime envisaged by the Bill as it would under the common law.

What, then, does the future hold for the online publishers?  A wide spectrum of views have been expressed.

At one extreme, there is the view that the internet cannot and should not be regulated and that social media users should not be subject to the law of defamation or only in a very limited and circumscribed way. This is sometimes presented as an argument from practicality – people can post anonymously (after the McAlpine affair more will do so), disguising their IP addresses or routing themselves through “libel unfriendly” jurisdictions like the United States. Sometimes the argument is presented as being one of principle: the internet should be governed by the First Amendment (like the operators of Google, Twitter and Facebook), freedom of expression should be paramount and everything should be left to the “market place of ideas” to resolve.  The law should be kept out.

This view must be rejected, It does not strike a proper balance between expression and dignity – the First Amendment approach to freedom of speech is out of step with the rest of the world. It does not strike any balance at all.  Online publication can do as much, if not more, damage than publication in the press or broadcast.  Although matters such as burden of proof, public interest and claims by corporations are the subject of intense controversy, there remains a broad consensus that false and damaging publications about individuals must, potentially, be subject to sanction.  The nature and ambit of privacy protection is also highly controversial but, again, almost everyone accepts that some form of protection is required for some categories of private information.  In any event, the prioritisation of freedom of expression over all other rights is inconsistent with the case law of the European Court of Human Rights.  Unless and until the United Kingdom renounces the European Convention on Human Rights, this approach is not an option.

At the other end of the scale is regulation of the internet.  The most obvious route would be an international agreement setting out basic rules as to content and providing remedies via an appropriate international tribunal.  Although the internet is, indeed, subject to regulation – in relation to matters such as domain names and child pornography – international agreement touching on defamation and privacy is not a practical proposition.  Any agreement would have to include the United States and any provision which was compatible with the Convention approach – not to mention the domestic law of countries such as England, Canada, Australia or France – would be incompatible with the First Amendment.

It is, of course, as the Chinese government have demonstrated, technically feasible to have “regulation in one country”.  International service providers could be required to submit to the jurisdiction of an English “Internet Tribunal” and, if they refused, could be blocked in the United Kingdom.  It is, at present, inconceivable that such an approach would be taken by any British government.   In theory, a EU wide approach could be taken – if the huge inconsistencies between the approaches of domestic legal systems to issues of defamation and privacy could be dealt with.  After all, the EU has imposed a Europe wide system of “data protection”.  But, once again, it seems inconceivable that at present such an approach would be taken to internet regulation.

I have said, “at present”, because of the difficulty of making predictions in relation to the internet.  Commentators such as Jonathan Zittrain, in his book “The Future of the Internet” – have argued, “the generative Internet is on a path to a lockdown, ending its cycle of innovation—and facilitating unsettling new kinds of control”.  It is possible that the internet “wild west” will be tamed over the next decade as “single purpose” devices – tied to particular companies – start to govern internet access.  In those circumstances, regulation might be a lot more attractive.  But, at present, no.

The Practical Possibilities

So what, then, are the practical possibilities for the future of libel, privacy and expression online?  I think that there are at least three areas to be considered.  They are not, necessarily, mutually exclusive.

First, there is the view that reform of the law of defamation could strike the appropriate balance in relation to online publication.  The latest attempt at such reform is the Defamation Bill.  Three provisions of this might be be thought to be relevant to online publication.

• Clause 1, Serious Harm”, which provides that

“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

• Clause 5, “Operators of Websites”, which gives such operators, subject to certain qualifications, a complete defence to a claim where they can show that they did not post the statement complained of.
• Clause 8, “Single publication rule” which provides, subject to certain exceptions, that the limitation period in defamation actions runs from the date of first publication.

To these might be added the proposed “new style” public interest defence in Clause 4 – now called “Publication on a matter of Public Interest”:

(1) It is a defence to an action for defamation for the defendant to show that—

(a)     the statement complained of was, or formed part of, a statement on a matter of public interest; and

(b)     the defendant reasonably believed that publishing the statement complained of was in the public interest.

Views differ as to the meaning and practical impact of this defence.  What is clear is that it will not prevent online publishers being sued and will require them to prove, at the very least, public interest and reasonable belief.

In practice, none of these points will make a substantial difference to the position of the individual blogger or tweeter.  The “serious harm” threshold is irrelevant to accusations of – to take the Lord McAlpine case – paedophilia.   The “Website Operator” provisions do not avail the authors of statements and the “single publication provisions” are of little or no practical importance.  The new “Public Interest” defence may or may not make a substantial difference in some cases but it provides no clear protection to online publishers who would have to fight the issue of “reasonable belief” like everyone else.

In short, the Defamation Bill will in this area – as in others – make very little practical difference – save that it will require some years of litigation to work out what its provisions actually mean.

Second, there is the view that the common law of defamation can be developed to strike a proper balance.  This option should not be dismissed out of hand.  The common law has evolved and continues to evolve to meet new practical situations.  The law of defamation has, over recent years, developed a number of features which are of great importance when striking the balance in relation to online publication:

• There is a “threshold of seriousness”.  An action for libel can now only be brought where a person’s reputation is substantially affected in an adverse manner by the publication (see Thornton v Telegraph Media Group [2010] EWHC 1414 (QB) [95]).
• A person will be a publisher of online material if they take some active role in the publication, because persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers (see Tamiz v Google [2012] EWHC 449 (QB)).
• Contrary to the position in relation to publication in printed form, where publication is online, there is no “presumption of substantial publication”.  The claimant must prove that the online material has been read (see Amoudi v Brisard & Anor [2006] EWHC 1062 (QB)).
• Even if the claimant gets over these three hurdles, the Court can strike out a claim where the publication is unlikely to have caused the claimant significant damage (see Jameel v Dow Jones [2005] QB 946).

There is no reason why the common law cannot continue to evolve to deal with the changing circumstances resulting from online publication.

The third possibility is based on the understandable concern that the slow evolution of the common law is not sufficient to keep pace with the digital revolution. Many argue that the English common law of libel (which applies, in substantially the same form in countries such as Australia, Canada and India) is fundamentally flawed and requiring radical overhaul.  It is said that the laws of defamation and privacy cannot cope with the challenges of the internet age.  It is argued that, contrary to the well-known dismissal of the idea by Judge Easterbrook in his 1996 talk “Cyberspace and the Law of the Horse” we now need a specialised law of cyberspace.

This view cannot be lightly dismissed.  But when it comes to privacy and defamation there is a lot of work to be done. No concrete detailed proposals are yet on the table – certainly not as a result of the Defamation Bill or the Leveson Inquiry.

Conclusion

In reality, the future is likely to mix these three approaches in as yet unpredictable proportions. The Defamation Bill is still likely to be enacted in some form and but is unlikely to have a substantial impact on online publication. The common law will continue to develop. As judges become more “internet savvy” their decisions will become more closely tailored to the requirements of the new information age but the pace will be slow.  The common law of defamation and privacy will continue, for the moment to be applied to publications on Twitter and Facebook although practical difficulties of enforcement will, inevitably, increase.

I am pessimistic as to whether the huge task of a “new settlement” of the balance between expression and dignity in the online age will be attempted.  The political will and resources required to set about the development of a balanced and functioning “law of cyberspace” do not appear to be available at the present time.

I make no more predictions. In the two decades since we began to process our information through the worldwide web it has been a “long strange trip” and it is likely to be even stranger in the years to come.

An earlier version of this post was given at the JUSTICE event, “Life and Law Online: Defamation, freedom of expression and the web” on 20 November 2012.