Super injunctions and online libel revisited--Injunctions are ‘pointless’, ‘unbelievably expensive’ and counterproductive because ‘there’s an assumption of guilt about which you can do nothing...’ These are just some of the frustrated words of Top Gear presenter Jeremy Clarkson when he abandoned his super injunction (obtained in September 2010 to silence rumours he had an affair with ex-wife Alexandra Hall, whilst married to current wife Frances) on 26 October 2011. 

As previously reported in our article entitled: Super-injunctions and online libel: Dangers for website users and hosts, a super injunction is a form of injunction under which the media cannot report the existence of the injunction, or its details – in effect, a 'gagging order'.

The Draft Defamation Bill is currently being scrutinised to a similar degree to the private lives of the celebrities who hope to benefit from it. Here, we review some of the existing frustrations with the current law, the changes proposed to resolve these concerns and the impact on ISPs, website hosts and moderators.

THE FACE OF CHANGE

The Joint Parliamentary Committee on the Draft Defamation Bill prepared a report detailing their suggested amendments to the Bill on 19 October 2011, and established four core principles of legislative reform:

-freedom of expression and protection of reputation

-reducing costs

-accessibility

-cultural change

Some key recommendations from the Committee’s report

-Trial by jury – full support is given to the refusal of the presumption of trial by jury for the majority of cases.

-The test of ‘substantial harm to reputation’ in libel claims – should be increased to a higher threshold of ‘serious and substantial harm’ with a view to facilitating the early resolution of disputes (and thus reduce costs) and providing greater protection for freedom of expression.

-Absolute and qualified privilege: extending qualified privilege to peer-reviewed articles in scientific or academic journals.

-Libel tourism – a robust stance on preventing unwarranted legal action in the UK will help to ensure that the most appropriate country to settle the dispute will be the forum for the claim.

-Corporate access – in a bid to prevent the over-exercise of corporate muscle to silence critics, the Committee proposes that a corporation must prove a ‘likelihood of substantial financial ‘loss’ in order to proceed with an action.

-Defences – there are several potential defences to defamation claims – the most relevant to website users and hosts being:

The Single Publication Rule – this would offer protection for anyone who republishes the same material in a similar manner after it has been in the public domain for more than one year. This will also provide protection to secondary publishers of online content, such as website hosts whose sites allow user-generated content

The Innocent Dissemination Rule (defence to publishers who had no knowledge of the defamatory nature of the statement which they published) – amendments have been recommended to protect secondary publishers from being automatically liable for the content of published material immediately after it becomes defamatory.

ISPs AND AN END TO THE TYRANNY OF TWITTER? 

The Committee accepts that modern means of communication pose a huge challenge in the world of defamation claims. Multi-jurisdictional, worldwide conversations require imaginative considerations in order to limit the potential for international damage to reputation to be caused by the push of a button.

There is a desire to provide a clear and simple regime to govern the responsibilities of ISPs, such as to encourage them to moderate the content of their site to maximise the balance of freedom of speech with protection of reputation. This regime should offer redress for those parties affected by defamatory statements and cope with the multitude of publication platforms and forums which exist now and in the future.

The Committee proposes a series of recommendations to attempt to address these concerns. For example, where an identifiable author makes a defamatory statement on the internet, the ISP or host should promptly publish any complaint received in respect of the publication, alongside the statement. 

This ought to detract from the effect of the statement and the damage to reputation, whilst preserving the author’s right to free speech. The complainant may then pursue cost effective court action to have the statement removed, a take-down order in respect of which will be binding on the ISP or host.

Where the author of a defamatory statement is unidentifiable, a complaint will place a requirement on the ISP or host to remove the statement, unless the author identifies himself (and then the above identifiable author process applies), or the ISP or host considers the statement to be in the public interest (whereby they have the right to apply to court for exemption from a take-down order).

WHAT DOES THIS MEAN?

It is likely that use of Twitter and other social media websites, discussion forums and blogs, will continue to be a source of debate at both ends of the spectrum of freedom of speech and protection of reputation. However, it is envisaged that the proposed guidelines, if enforced, will mitigate the effect of defamatory statements on individuals’ reputations, preserve the right to free speech and provide a transparent and cost effective means of early dispute resolution.

The proposed changes, if implemented, may reduce the potential burden on website hosts and moderators to some extent, but the courts are still likely to consider how widely a defamatory posting was viewed when calculating damages. If a moderator knew about a defamatory posting and left it available for viewing by large numbers of people they will struggle to avoid liability.

WHAT SHOULD I DO?

-If you receive complaints about potential defamatory material on your site, act swiftly and consider removing the posting pending an investigation.

-Ensure the terms and conditions of use for your site explicitly prohibit the use of it as a forum for making defamatory or offensive postings, and consider restricting postings to languages that you are capable of moderating. Make sure it is easy to revoke the rights of anyone who abuses the policy.

-If you find yourself the subject of defamatory or offensive postings, do not delay; report them to the moderator (or webmaster if there is no moderator) and request that they be taken down explaining the reason for your request.

-If you moderate sites, be careful of the extent to which you moderate, as the act of moderation can amount to an inadvertent acceptance of liability.

-Seek legal advice at an early stage if you are in any doubt.