The UK Government's Response to the Report of the Joint Committee on the Draft Defamation Bill (previously reported here) was published in February 2012 (copy of the Response here). Some of the recommendations made by the Joint Committee have been accepted, although some will not become amendments to the Bill but may be incorporated into the Civil Procedure Rules and explanatory notes to the proposed legislation.
One of the main areas of interest is the liability and role of ISPs in relation to potential defamatory postings on social networking sites and websites generally. The current proposal laid down in the Response for dealing with defamatory online remarks is set out as follows:
- The online intermediary would act as a liaison point between the person complaining about a defamatory posting and the person who posted the material, where the identity and contact details of the latter are not known to the complainant.
- Upon receipt of a notice of the complaint, the intermediary would have to contact the author of the material (or if this did not prove possible, take the posting down).
- If after an initial exchange of correspondence the issue remained in dispute, the complainant, who would then have to initiate legal proceedings against him to secure removal of the material (if the matter could not be resolved by other means) and not pursue an action against the intermediary.
- Time limits would be imposed to ensure inappropriate material did not remain posted for an extended period.
The Response considered the above to be the most practical and effective way of offering greater protection to online intermediaries and aiding free speech, while enabling claimants to protect their reputation by securing removal of defamatory material without undue delay. The Government do, however, intend to have further discussions regarding this approach with interested parties.
The benefit for online intermediaries of not being liable for defamatory postings is set against the need for resources and logistics to comply with the likely procedures required for dealing with complaints about postings and content.