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Defamation - new law may put an end to online anonymity

20 June 2012

It is often said that the internet is a ‘law-free zone’ where users can say or do as they please. This may be about to change. New legislation is being put forward by the government that may bring the era of online anonymity to an end.

The changes are contained in clause five of the defamation bill, which was published several weeks ago and is currently on its way through the House of Commons.

The issue has gained prominence in the wake of several cases of online harassment, most notably a case where a Brighton woman, Nicola Brookes, obtained a judgment against Facebook, forcing it to reveal the identities of ‘vicious internet trolls’ who posted abuse about her online.

The bill says website operators will have a defence against libel claims as long as they co-operate with a formal notice of complaint served on them. These notices may compel operators to disclose the ‘identity or contact’ details of whoever made a comment that is alleged to be defamatory. The exact details of how the complaints procedure will operate are due to be set out in regulations to be published in the coming weeks.

Some website operators have given the proposals a lukewarm reception, arguing that the blanket nature of the law will deter users from engaging with websites and asking and advising on various issues of the day. Justine Roberts, co-founder of the popular website Mumsnet,  has argued “in efforts to out the so-called internet trolls, the law must be careful to protect anonymous posts that let people access often live-saving support.”

However, The Internet Service Providers Association (IPSA), which represents online operators including Google, BT and Virgin, have welcomed the defamation bill, saying that it is a recognition that ‘Internet Service Providers are not best placed to decide if content is defamatory’.

Explaining the reasoning behind the bill, justice minister Kenneth Clarke said that the current status quo could not remain: “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. 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”.

The legal system can often be accused of playing ‘catch-up’ with modern technology. This bill is a clear example of Parliament trying to get ahead of the curve on an issue likely to become increasingly relevant as more and more people make use of social media. The bill also serves as a warning that the law is as relevant to what is said and done on the internet as it is in everyday life.

Interesting times lie ahead as the judiciary grapple with the new legislation, which may come into force by the end of this year.

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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Paul Gordon LLB
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