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Tuesday, 25 October 2011

Behind the headlines: libel committee report, anonymous comments & corporate defamation

Some reports are hard to summarise in a headline, and some headlines haven't done the report from the Joint Committee on the Draft Defamation Bill much justice.

Headlines such as "Websites 'should carry libel risk for anonymous posts'" might leave the reader thinking the report is an attack on so-called anonymous culture. In fact the Guardian goes further:
"MPs and peers recommended tackling the culture of anonymous online comments"
But the report is far more nuanced than can be summed up in any headline or single sentence. Whilst the report contains a couple of worrying paragraphs about encouraging moderation of online content and perpetuating the idea that "upstream" web service and internet service providers continue to carry some responsibility:
"... in line with our core principle that freedom of speech should be exercised with due regard to the protection of reputation." 
The report is far from an attack on anonymous comments, contains a lot of very encouraging points on a breadth of issues, and interestingly draws some parallels with privacy law (true allegations the claimant wants to remain private) and defamation (untrue allegations).

A bit of background

Few would argue Britain's libel laws aren't in need of reform. So much has developed under common law, meaning those who best understand the law have spent years analysing hundreds of years of judgements, and for this knowledge and understanding a defamation specialist solicitor can command massive fees. "Cost of action in England is 140 times that of the average in other European countries," says the report (available here).

Codifying the common law in statute (setting out in writing the tests for what is and is not actionable, and the defences available for those accused) should make the law far more accessible, and have the effect of reducing the fees of specialist solicitors.

Additionally, the internet brings unique challenges, both in its global reach and in the large number of publishers it enables. Every user of social media is in a position to defame, and stands at risk of being defamed. Yet the cost of legal action is beyond ordinary citizens. Action can leave those who successfully defend a libel claim up to £100,000 out of pocket, yet, according to the report, the average libel award is less than £40,000.

The sheer cost of defending oneself against libel allegations has lead to:
"the opportunity for more wealthy parties to use rising costs as a weapon"
Known as chill, citizens and smaller publishers can be discouraged altogether from participating in online debate, self-censor legitimate criticisms of government or public figures, or remove non-defamatory posts under the mere threat of libel action.

The government in March published a draft Defamation Bill to attempt to address these concerns. Now, a powerful Joint Committee has recommended the draft bill doesn't go far enough, calling the Draft Bill "modest" and failing in some respects to "achieve the clarification sought."
"It [the draft Defamation Bill] does not, in some important respects, strike a fair balance between the protection of reputation and freedom of speech."
What the report actually says about anonymous comments

Firstly, it's important to view the report as a package of measures: weeding-out trivial claims, preventing libel bullying based around huge cost of defence, providing protection for websites and ISPs; and, crucially, raising the bar to what is actionable, recommending cases should only proceed where “serious and substantial harm” can be established.

It raises an additional bar for corporations trading for profit, requiring them to prove "substantial loss of custom" through a defamatory statement before proceedings can be established. This is good news - I've advocated a complete removal of the right of corporations to sue for defamation, arguing only through free and open discourse can we achieve transparency of organisations; organisations who are otherwise focussed on selling a positive image.

Transparency of trading organisations is an important prerequisite for self regulation in any sector. If a corporation is alleged to have disregard for the consumer or other ethical issue it is important that these allegations can be discussed so that consumers are able to make informed choices.  Even though not every allegation will be true, without free and open debate, all the consumer will hear is positive spin from the company itself.

I argue the report doesn't go far enough.  As well as proving "substantial loss of custom" (note, there is a recommendation that a collapse in share price on its own be specifically excluded as grounds for legal action) I argue that the corporation must also prove an element of malice or wilful intent to harm an organisation.

Back on to anonymous comments, as well as the widely reported notice and take-down procedure designed to minimise the risk to website owners and ISPs, I'd argue the report - far from attacking the culture of anonymous online comments - actually embraces anonymity as an integral part of online culture.

What the report actually recommends is (my bold):
"Measures to encourage a change in culture in the way we view anonymous material that is user-generated, including via social media"
I read into this statement a tacit acknowledgement that anonymous posts carry little if any credibility.  There's actually no need to tackle such posts if we treat anonymous tittle-tattle with the pinch of salt it deserves.  Not that anonymous doesn't have a role - clearly, unproven anonymous allegations can prompt more serious investigation by journalists and concerned citizens, who may end up proving and publishing the claims in a more credible setting.

Safeguards

The report recommends a series of safeguards to protect anonymous comments.  Firstly, the anonymous author (and I feel the report may be confusing concepts around anonymity, pseudonyms, identifiability and ease of contact, but this is less important at this stage) may be given the opportunity to "promptly respond" to the libel allegation.

And if he or she responds, the author should be treated in the same way as an "identifiable" author, with the comment remaining in place.

When allegations are made against identifiable authors, the website should only have to publish the complaint alongside the existing comment.  This makes sense and pleases my liberal view of information.  Leave the allegation up, thereby removing the risk of chill and allowing a level of discussion around unproven allegations.  Public discussion might often be the best way of getting to the truth.  But at the same time make it clear to any reader that the statement is potentially libellous.

The report still proposes a court could then order the removal of defamatory comments.  I don't like this or think it's necessary.  We have a tendency to over-state the power of words. I think the publishing of any complaint alongside an allegedly libellous statement should suffice; it provides transparency where a take-down might actually fuel further rumour, speculation and public distrust.

Also I question motives behind wanting unfair criticism removed.  Can't it just be struck-through?  The only reason I would want an allegation removed is to prevent more reputable investigative journalists sniffing around and proving it true!  If a statement about me was demonstrably untrue I would much prefer the statement to remain, struck-through and a judgement or evidence to the contrary attached to set the record straight.

The report recommends another important safeguard for whistle-blower websites - a "leave-up" order for anonymous comments.  The website owner can apply to a court for such an order and, if granted, the web host or ISP would not be liable for any subsequent action in regard to the comment.  This again is a welcome suggestion and demonstrates the report authors do have a high regard for both the public interest in free and open discourse and for the role of anonymous comments.

Worries
Whilst I broadly welcome the report, I'm worried about the tone in a couple of sections.   From time to time the breezy notion of a universal truth crops up, together with the questionable notion of "the immense difficulty—perhaps impossibility—of restoring reputation."

To be fair to the report authors, they present a counter-view that often open debate is needed to get to the truth:
For many, the overriding public interest lies in establishing the truth, or at least in the wide dissemination of accurate information on issues of public interest. This requires adequate protection to allow uninhibited participation in scientific and other debate.
I guess a lot depends on the nature of, and motivation behind, a libel.  A concerted attempt to attack an individual with a serious smear by a well-organised person or group could indeed be hard or impossible to recover from.

Although we've always had this problem in society with gossip, and have developed defence mechanisms.  We frown down on many forms of gossip and those who propagate it.. (Whilst some, football rumours, political gossip etc is positively encouraged!)  Social websites and comments are really nothing more than transient conversations - chatter.

Yes, web publication can potentially reach far larger audiences, and there is a good chance a record of these online conversations may stick around for many years, but just because the information is on the world wide web doesn't mean it's getting read around the world - or indeed by anyone.

Also I'm confident society will evolve so that (a) online gossips dealing in intimate rumours about ordinary citizens find their own credibility and reputation damaged; and, (b) readers will learn to ignore such rumours in an environment where anyone can publish pretty-much anything.

I also have a lingering worry that the need to protect scientific and other academic debate, recognised by the report, may only extend to recognised academic journals.  In reality any website could host a valuable scientific or academic debate.  Debate should be protected wherever it takes place.

Implementation?

Two interesting questions remain.  Will the report's recommendations find their way into the draft defamation bill?  The government consultation on the draft Defamation Bill closed in June, leaving questions over whether the Committee's recommendations may have come too late.  But the Committee is in a strong position to influence the Bill in its passage through the Houses of Parliament.

The second question is how the courts will view and continue to develop libel in light of these recommendations.

@JamesFirth

5 comments:

  1. ----
    "may be given the opportunity to "promptly respond" to the libel allegation"
    ----

    Point: How? It's an anonymous comment and so in all likelihood the website won't have any means to contact them to highlight the request for a response. Especially problematic is how complaints often come a long time after the related post was made and thus won't be seen by any notification messages

    ----
    "When allegations are made against identifiable authors"
    ----

    Point: What is "identifiable"? The vast majority of websites, except perhaps a government authority of security service, cannot accurately identify somebody; all visitor posts are thus effectively anonymous. Ordinary websites do not have access to any means of accurate user identification and people aren't likely to register with legitimate details anyway.

    I certainly never do because my private contact details are only used when necessary (e.g. Amazon or using government services). Heck the government even recommends not handing over too many personal details.

    ----
    "The website owner can apply to a court for such an order and, if granted, the web host or ISP would not be liable for any subsequent action in regard to the comment."
    ----

    Point: How many ordinary websites would waste time doing that? You have to be realistic, my own certainly wouldn't have the time (time is money) resources to do that and what about the hundreds of thousands of other posts that could be complained against? Many websites are free or run by individuals for fun, they're not commercial. This idea seems unworkable.

    Publishers (webmasters) are not police; most of us would simply remove the comment and avoid the threat of action. The comment could of course be legitimate but how many would take the legal risk? Not many I think.

    So you have this situation. Let's say you get your car serviced but don't like the work they do and post a review on a car site. Then a few months or one year later, most likely after your contact details have changed (assuming you even used legitimate ones), the service company complains and you're forced to removed it because you can't contact the individual. Legitimate complaints censored. Heaven help us if the law is applied retrospectively, all a company would have to do is issue complaints against anything they don't like and you'd be forced to remove it.

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  3. Fair points Mark but taken alongside how things are at the moment (I've faced the blunt force myself) I stand by my general assessment that this is not the war on anonymous comments that some commentators have declared.

    As you probably know, many anonymous commentators check back regularly to read responses. Some don't, some do. When they do, it is possible to notify them.

    I personally think this part of the report is a bit of a sham - there's no need at all to distinguish. But knowing a bit about the bastard compromise that is politics I think it's better to throw myself behind the report as a great improvement rather than pick holes.

    I make some criticism later when I point out the credibility issues with anonymous, saying why they're *not* a problem and why take-down is both unnecessary and can be counter-productive.

    On the "leave up" order it's a multi-layered problem. I think a company running a legitimate whistle-blowing operation will appreciate the availability of such a tool to limit their own liability in leaving a comment up.

    Sites lacking resources enough to access a court can still choose to leave anonymous comments up without such an order, and they *still* are in a better situation than today, if the report's recommendations are adopted wholesale (higher barrier to action, clarity in defence, limits on corporate defamation, reduced costs etc).

    The report on the whole makes the situation better in so many ways. Additionally, nothing in the sections dealing with anonymous comments proposes that anonymous comments should be offered less protection, just that there be limits to the additional protection offered to online publishers in other circumstances.

    Yes, I pointed out myself the possible confusion between anonymity, pseudonymity, identifiability etc. Sure these can be ironed out.

    The problem I see is those who understand the issues are facing opposition in Parliament and government from those who *fear* the internet. I'm therefore prepared to accept a few compromises as essential to getting support for the wider reforms this report proposes.

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  4. I think at this stage we won't know whether or not it's "the war on anonymous comments that some commentators have declared" until the next publication. I completely accept most of your points but in my view there are still some real dangers and assumptions that give me cause for serious concern.

    As ever it's a "devil in the detail" situation and we don't yet have the final detail.

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  5. We've been at the receiving end of this for 5 years and my blog 'Evil Thrives When Google People Do Nothing' indicates the indifference of service providers.

    It concerns my recently deceased colleague who was commended in the BT Better World Seen and Heard awards as an example of excellence for his 'shocking and insightful article' on institutional childcare entitled 'Ukraine: Death Camps, For Children'

    On his death, the defamer gloats

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