Parenting website Mumsnet has recently settled a long-running dispute with controversial childcare expert, Gina Ford, who had threatened Mumsnet with defamation proceedings following criticism of her methods in online forums hosted by the website. The settlement has been hailed as disappointing by many commentators who had hoped that progression of the case would allow the courts an opportunity to provide some long-needed guidance on the application of UK defamation laws in an online context.
The Current Legal Position
The current approach was first outlined in the English case of Godfrey v Demon Internet , which established the "notice and takedown" principle. This case was brought against an Internet Service Provider ("ISP") in relation to defamatory comments posted on a message board, of which the claimant had notified the ISP. The ISP had failed to remove the offending postings, which were eventually taken down some 10 days later as the result of an automatic time-expiry process. The defendant relied on section 1(c) of the Defamation Act 1996, which provides a defence for a publisher who did not know, and had no reason to believe that it had caused or contributed to the publication of a defamatory statement.
The judge clarified that this defence will not apply where an ISP has been notified that such a defamatory statement exists on its site. From the point at which the defendant knew of the defamatory content of the posting, it could not rely on the protection offered by the "innocent dissemination" defence. In order to protect itself from legal action, an ISP/website owner must remove the offending content on notice of its existence. The ISP's systems must clearly support a mechanism to allow web users to be able to communicate their unhappiness with statements made on the site.
Criticism of current approach
The application of existing defamation principles in an online context has been described as "the rough equivalent of trying to use a set of railway signals to control the air traffic over Heathrow – the principles may be fine but different forms of communication, just like different forms of transport, require a different approach." There are a number of problems inherent in the current approach:
Removal of defamatory content – how long is reasonable?
Unfortunately, the judge in Godfrey failed to provide any guidance on the speed at which action should be taken by an ISP to remove a defamatory comment. In that case, the offending content had been available online for 10 days following notification of its defamatory nature, which was clearly viewed as too long. The E-Commerce Regulations , which enshrine the "notice and takedown" principle in respect of certain online carriers, simply state that the operator must block access to the content "expeditiously".
Some direction on an appropriate timescale for removal may be found in the Terrorism Act 2006, which creates offences relating to the encouragement of acts of terrorism and the dissemination of terrorist publications. The legislation establishes a notice and takedown regime that applies to website operators and provides that a statement will be regarded as having the endorsement of a person where the person has failed to comply with a notice requiring the modification or removal of offending material within two days of notice. This provision could perhaps be used to suggest that Parliament has considered two days to be a reasonable period to allow for the removal of content which has the potential to be far more serious than defamatory words.
However, given the prevailing uncertainty, it seems that the risks inherent in defending a defamation action are too large for ISPs/website owners. In the Mumsnet case, the offending content had been removed 24 hours after notification. The website took the view that the law was not clear enough to justify the expense of arguing this point in court. Website owners/ISPs need guidance on how quickly they must remove user's comments to avoid liability.
Freedom of speech
There is an argument that in protecting themselves from legal action, ISPs are in effect curtailing freedom of speech, which should be protected under the European Convention on Human Rights. In effect, ISPs are being asked to act as both judge and jury in deciding whether a comment is defamatory – a problem which was recognised by the Law Commission in 2002 . ISPs and website owners, particularly those with limited resources, are unlikely to want to take on this role, and an informed industry debate is required in relation to the level of involvement that is appropriate. During the Law Commission's consultation in 2002, some ISPs expressed a concern that they would be leaving themselves open to actions for breach of contract in removing content which was later found not to be defamatory.
These issues create an unsatisfactory and uncertain environment for ISPs. The fact that there have been no significant cases in this sphere since the Law Commission's report in 2002 does not mean that there is no impetus for change – indeed it is precisely due to the uncertainty surrounding the area that many ISPs/website owners are simply complying with "notice and takedown" or settling actions to avoid the expense of defending them.
It is understood that the Department of Constitutional Affairs is due to issue a consultation paper on the need for reform later this year, and it will be interesting to see the extent to which the issues discussed above are taken on board. Dialogue with ISPs and website owners will be key to this process. Shepherd and Wedderburn would be delighted to discuss further research with interested parties to back up any consultation response.