Clause 5 Consultation - Libel Reform Campaign Response

7/30/2019 Clause 5 Consultation - Libel Reform Campaign Response

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Lord McNally

c/o Defamation Bill Team

Ministry of Justice

6.21, 102 Petty France

London, SW1H 9AJ

Dear Lord McNally,

We write regarding Clause 5 of the Defamation Bill and the Ministry of Justice

consultation on regulations for issuing a notice of complaint. Our consultation

response is attached, and we have further comments, below.

1. A well formed notice makes the system more efficient

We endorse the speech given by Lord Allan of Hallam to the Grand Committee (Day

3, 15 January 2013, Hansard Col. GC210). A well formed notice which sets outclearly the nature of the complaint will ensure that the notice of complaint system runs

efficiently. This is in the interests of both claimants and defendants. Once the new law

is in force, the Ministry of Justice should issue examples of how a well formed notice

should be laid out.

2. The claimant should provide the facts

Key to reducing the threat from vexatious defamation claims against web operators is

that the claimant provide some factual detail to the operator as to why the content is

not only defamatory but could also be considered unlawful. We support Lord Lester

of Herne Hills amendment to Clause 5 to be moved at Report Stage, which wouldoblige the claimant to provide some factual details as to why a statement is untrue,

unsupportable and damaging. We believe this is a reasonable requirement.

3. The Clause 5 process requires a court-based backstop

It is likely that most posters, when threatened with any kind of legal action, will not

consent to their contact details being passed to a potential claimant, regardless of

whether their words are defamatory and unlawful. If this is the case, then the Clause

5 process will merely formalise the routine reputation management that results in

content being removed unjustly. A court based procedure, which allowed a defendant

to seek a ruling from a Master as to whether the notice meets the basic requirements of

a libel claim (as outlined by Viscount Colville of Culross, Hansard 15 Jan 2013, Column

GC207) would go some way to resolving this impasse.

A cheap procedure (which could be administered online) would also be of great benefit

to claimants. Where they do have a case, but the poster insists on anonymity, a


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declaration from a Master that their complaint does meet the basic requirement of a

libel claim, would provide certainty to the operator and hasten the remedy. We urge the

Ministry of Justice to include a court-based declaration procedure in the regulations.

Reinstatement

The proposed regulations, as outlined in the consultation document, make no provisions

for allowing a defendant to change their mind. A situation may frequently occur, where

a poster quickly assents to their words being taken down because they have received a

notice and are uncertain about their legal position. However, after short reflection and/

or legal advice, they may consider that their words are defensible (for example, a lay

person may not be aware that defences of honest opinion, privilege or substantial truth

even exist). In such situations, there must be some equally efficient method whereby

they can re-post or otherwise reinstate their words. When they invoke this process, the

operator must retain their defence.

Most web operators are David, not Goliath

During the Committee Stage debate in the House of Lords (15 January 2013), several

parliamentarians offered amendments, and gave speeches, based on the premise that

web operators tend to be large Goliaths who have no commercial interest in helping

claimants. This is a caricature. In fact, most of the web operators who are chilled by

libel threats are Davids, likely to be classified as small businesses. As an example

of this, one might refer to the membership list of the ISPA. The vast majority of their

members are classified as medium or small, operating on small profit margins with

no in-house legal support. The Clause 5 regulations for a notice of complaint should

be designed for these small businesses, and for amateurs operating web forums anddiscussion groups.

Yours sincerely

Tracey Brown

Director, Sense About

Science

Kirsty Hughes

Chief Executive, Index on

Censorship

Jo Glanville

Director, English PEN

www.libelreform.org


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Defamation Bill: Regulations under Clause 5 Consultation

Response from the Libel Reform Campaign

Q1. Do you agree that the regulations should give the court the above discretion

regarding time limits and that this should be exercised where the court considers it in the

interests of justice to do so? If not please give reasons.

Yes. Many of the ISPs and web hosts may be small companies or individuals, who do not have

immediate access to the material. A situation may arise where the operator cannot reasonably

make the mandated take-down within the agreed time limit, especially if this limit is short, or due

to the volume of requests.

Q2. Do you agree with the above contents required for a notice of complaint? If not

please give reasons.

Yes. Giving such information will discourage speculative reputation management when thereis no defamation that would be actionable in law. An example of this practice might be the

actions of lawyers acting on behalf of MRI Overseas Property, which routinely threatens legal

action to web forums hosting negative comments about the company. (See report in The

Phoenix, 11 March 2011, p40: http://bit.ly/TxdsLU).

Furthermore, a notice that is well formed (potentially standardised fields) increases efficiency,

which is of benefit to both claimants and defendants:

A well formed notice that has all the necessary information will be able to be acted on swiftly

by the recipient of that information-in this case, the website operator-and the solution can be

reached more speedily.

(Lord Allan of Hallam, Committee Stage Debate Day 3, 15 Jan 2013, Hansard Column GC210)

Q3. Is there anything further that you think should be included? If yes please specify.

A formal declaration by the claimant that the information they provide in their claim is true.

We also support Lord Lester of Herne Hills amendment to Clause 5 to be moved at Report

Stage, which would oblige the claimant to provide some factual details as to why a statement is

untrue, unsupportable and damaging. We believe this is a reasonable requirement.

Modern technology allows such notices to be generated and submitted electronically. This

offers the potential for all notices generated to be automatically logged on a confidential, court

maintained database. Such a system would protect claimants, who would be able to generate

a receipt of the precise time they submitted a notice. It would also serve to generate invaluable

statistics on the number of notices served.
http://bit.ly/TxdsLUhttp://bit.ly/TxdsLUhttp://bit.ly/TxdsLUhttp://bit.ly/TxdsLUhttp://bit.ly/TxdsLUhttp://bit.ly/TxdsLUhttp://bit.ly/TxdsLUhttp://bit.ly/TxdsLU


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Q4. Do you agree with the process that is proposed in relation to invalid notices of

complaint? If not please give reasons.

We agree that the operator should not be required to tell the claimant what is wrong with the

notice. Web operators are unlikely to have the legal skills to judge whether a notice is valid.

However, the Ministry of Justice commentary on this point states

the question of whether a the notice was or was not valid would be the matter for the court to determine

(page 3)

We agree that a court should be the arbiter of whether a notice is valid. However, there are

no provisions in the current Clause 5 proposals or regulations for how a court may rule on this

point. We strongly recommend that a process be put in place whereby any of the parties to

the dispute (claimant, web operator, poster) be able to seek a ruling from a Master on whether

the notice is valid and there is aprima facie case to answer. This provides certainty for both

claimants and defendants. It would discourage vexatious claimants, and also vexatious postersof obviously libellous material.

Ministry of Justice could provide further assistance to both claimants and defendants by

publicising a checklist of the elements (compulsory and optional) which make up a notice (or

even provide an online tool which generates such a notice), and also a short checklist of the

basic hurdles that a libel claim must meet. If it were to do this, the potential for confusion would

be significantly reduced. If the Ministry of Justice were to provide a standardised form for

notices (perhaps in PDF format), that document could also contain paragraphs on the operators

rights under Section 5 (as it will become known).

Q5. Do you agree that 72 hours is an appropriate period of time for the operator to

forward the complaint to the poster? If not please give reasons and indicate what other

period would be appropriate.

Yes. It is imperative that the time period lasts longer than a weekend, otherwise small operators

may not be able to act on notices out of working hours.

Q6. Do you agree that the communication from the operator to the poster should contain

the contents listed above? If not please give reasons?

Yes.

Q7. Is there anything further that you think should be included? If yes please specify.


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In addition, the operator could forward on details of the posters rights under the Section 5

process in particular, and the defences available more generally under the Defamation Act 2013

(as we presume it will become known).

Q8. Do you agree with the time limit (of 7 days of sending) proposed for a poster to

respond to an operator regarding a notice of complaint? If not please give reasons andindicate what other period would be appropriate.

Yes. This gives enough time for a poster to seek legal advice.

We anticipate that other respondents may take a different view, that 7 days is an extremely long

time to leave a potentially unlawful defamatory statement online and visible. This view mistakes

the meaning of Clause 5, which is is intended to allocate responsibility between the alleged

victim and the website operator (Lord Lester, Hansard, Grand Committee Day 3, 15 Jan 2013,

Col. GC217). The proposed 7 day limit is not a grace or privileged period for the defendant,

and would never be seen as such. Rather, it is simply the time within which an operatoris

exempt from liability. There is no such time limit for the person who actually posted the words.

They are always liable, from the moment they post the material. From their point of view, the

greater the delay in removing the words, the greater the harm caused, and the greater exposure

to potential damages.

We wish to raise a further point with regards to timescales. A poster who is unsure of their

defences may choose to temporarilydisable the post while they seek legal advice. However,

after taking advice they may decide that their words are defensible, and therefore repost or

reinstate the content. This action should not prejudice their rights or be seen as a concession or

admission that the post is unlawful. Such reinstatement within the time limit should certainly not

prejudice the rights or liability of the operator.

Q9. Do you agree that a posters response to an operator should include the above

elements? If not please give reasons?

Yes.

Q10. Is there anything further you think should be included? If yes please specify.

Operators should be encouraged, as a matter of best practice, to issue reminders to the poster

to respond to the notice. This could be automated.

Q11. Do you agree that 48 hours is an appropriate period of time for an operator to action

a response from a poster agreeing to removal? If not please give reasons and indicate

what other period would be appropriate.

No. We think 72 hours would be more appropriate. This longer time period would always allows

small operators to fulfil the required action within working hours.


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Q12. Do you agree that an operator should take down material within 48 hours of the

expiry of the deadline if the poster has not responded within the prescribed time limit? If

not please give reasons and indicate what other period would be appropriate.

No. We think 72 hours would be more appropriate. This longer time period would always allowssmall operators to fulfil the required action within working hours.

Q13. Do you agree that the clause 5 process should apply in the normal way the first time

that a poster reposts the material? If not please give reasons.

Yes. The Clause 5 process concerns a defence against liability for the operator. It assumes

that the operator has very little level of influence over the poster. The Clause 5 process should

therefore not be curtailed in the event that someone reposts the material.

Offline, there are serious legal and financial consequences for those who republish material

that has been ruled to be defamatory. Such actions are held to be malicious and the penalties

are therefore more severe. A poster who re-publishes material in this manner will expose

themselves to similar legal sanctions.

There may be rare cases where many people have reposted a defamatory statement on a

social network, and the operator is overwhelmed with Section 5 notices. This lends weight

to the idea of a declaration from a court on whether a statement is prima facie defamatory. If

the court ruled that the statement was defamatory, then this would mandate the operator to

remove all offending comments, so far as they are technically able to do so. Alternatively, if the

statement did not meet the criteria, the Masters ruling would give certainty to the operator that

the statements could be left up.

Q14. Do you agree that the operator should remove the material upon being informed

by the complainant without following the clause 5 process if the poster persists in

reposting? If not please give reasons.

It depends on the nature of the repost. If a poster has republished something, it will be for one

of four reasons:

(1) A mistake.

(2) They are being unreasonable and malicious.

(3) They have received new information that has changed their opinion of whether they

should publish.

(4) They were unaware of the Clause 5 procedure (the example given is that they were

on holiday and did not receive the notice of complaint from the operator)

In the first two cases, it wouldbe appropriate for the operator to take down the material, without

embarking on another Clause 5 procedure. The material is likely to be exactly the same as the


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original. In the latter cases, it would instead be appropriate to re-start the process afresh. The

content may also be slightly different.

If the re-post is for reasons (3) or (4) then it is likely the poster will formally indicate that they will

defend what they have posted. The Clause 5 process is the simplest way for them to do this.

We anticipate that others may disagree, and suggest that malicious posters may seek to

continually re-post, changing the content each time in order to trigger the Clause 5 process.

We repeat the point made in response to Q8, above: Clause 5 is intended to provide protection

to the operator. A poster who chooses to extend the process does in the knowledge that they

are exposing themselves to greater damages, and also accusations of malice. This distinction

lends weight to the inclusion of a court-based declaration procedure, which would cauterize

malicious re-posting.

Q15. Do you agree that in the above circumstances the operator should provide the

posters contact details to the complainant within 48 hours? If not please give reasons

and indicate what other period is appropriate.

No. We think 72 hours would be more appropriate. This longer time period would always allows

small operators to fulfil the required action within working hours.

Q16. Do you agree that the operator should take down the material (if the poster refuses

to give/provides obviously false contact details) in order to retain the clause 5 defence?

If not please give reasons.

If the details submitted are shown to be false (or even, simply inaccurate, incomplete, or

critically misspelt) then the operator should take down the post, as per the procedure outlined inparagraph 23 (above). This is a process outlined in law, and those involved should be obliged to

ensure that the details they submit are correct.

However, we disagree that there should be an automatic take-down of material when a poster

actively refuses to give details.

There may be cases where it would be justified for the poster to withhold details from the

host. If the posted material is whistle-blowing in nature the poster may not wish to release

their details to operator. In such cases, the poster would clearly have make arrangements to

provide some other method of contacting them, perhaps through a solicitor or other designated

proxy. It is routine for websites such as Craigslist or eBay to provide means of anonymised

communications between parties, this should be incentivised as a solution to where the

defendant (potentially for reasons of public interest) refuses to pass over their personal contact

details. Anonymised communications between the parties should be easily accessible and not a

method of last resort.


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We believe operator takedown where a user refuses to pass over their personal contact details

would cause a great deal of content to be unjustly removed from the internet. Many posters will

simply baulk at surrendering their contact details and the content will be removed by default,

even if the claim is easily and completely defensible. However, if a court-based process were to

be included in the procedure, the defendant could seek a ruling on whether there was a genuine

case to answer.

We anticipate that others may take the view that defendants may seek to retain anonymity to

force the process to its most protracted conclusion, simply in order to extend the defamation.

We repeat the point made in relation to Q8, above: Clause 5 is intended to provide protection

to the operator. A poster who chooses to extend the process does so in the knowledge that

they are exposing themselves to greater damages, and also to accusations of malice. This

distinction lends weight to the inclusion of both anonymised communications means provided by

operators between parties and a court-based declaration procedure in the process.

Q17. Do you agree that the operator should be required to notify the poster on receipt of

an application for a Norwich Pharmacal Order? If not please give reasons.

Yes. Knowing about the order will allow the poster to seek legal advice and revisit their

decision as to whether they wish to defend the words complained of.

Documents

Clause 5 Consultation - Libel Reform Campaign Response