The New Defamation Bill – Will ISP’s really be required to give up a trolls details voluntarily??

Much has been made in the press this about the new proposals in the Defamation Bill and the fact that ISP’s, under new government proposals, will be required to provide victims with the identity of offenders who post abusive and defamatory online messages about them. This in itself is not technically true.

The draft defamation bill makes a big deal about the new procedure that ISP’s will have to follow before alleged online material is to be taken down. The bill describes the differentiation between identifiable material, by means of authorship and unidentifiable material i.e. an ISP, following a complaint made on ‘identifiable material’ must immediately place a notice against the material stating that it is subject to challenge. Under the new procedure an ISP must immediately remove alleged defamatory material from an unidentifiable author. This may seem great on paper, but let’s think about it practically. A person goes online as ‘John Spyrou’, ‘Rupinder Bains, ‘Lord Alan Sugar’ or ‘Donald Trump’, they are likely not the real person, however does this could as identifiable material – merely because there is a name next to it? The draft defamation bill does not make this clear. And therefore if it is unclear how can it be enforced. Answer – it cannot be.

Also any requirement on ISP’s to identify internet trolls or offending posters by giving details of their electronic signature, without a specific Court Order, is questionable. Any such requirement is arguably incompatible with the Data Protection Act, Electronic Commerce (EC Directive) Regulations 2002 not to mention basic human rights such as right to privacy and freedom of speech.

Furthermore, internet trolling does not always amount to defamation and the term is usually reserved for those perpetrating harassment on innocent internet users. The government appears to have been caught up in the media hype surrounding trolling and so is using the word for all and sundry.  So how the government plans to deal with the similarities/discrepancies between the trolls and outright defamers is again unclear. 

I will save the jurisdictional issues concerning US corporations like Google and Facebook for another time.

In summary, the material bandied in the press is slightly premature and should be treated with caution. For now, to identify online offenders the Court is who we should ask for help. 

John Spyrou

Bains Cohen Solicitors

The Queen’s Speech 2012 – What will it mean for the law of Defamation – Reform? Overhaul? Or Same Old Same Old?

Her Majesty Queen Elizabeth II’s most gracious speech to both Houses of Parliament took place on 9 May 2012, with focus being placed on getting the country out of the economic mire we find ourselves in. However, if you listened very hard and used your microscope on the transcript, you would have noticed 15 words that could change the defamation playing field substantially.

For those of you who may have missed them, I repeat these 15 words below:

“Legislation will be introduced to protect freedom of speech and reform the law of defamation”

15 little words, which together indicate the beginning of a complete overhaul of English defamation law.

The new Defamation Bill still has some way to go before becoming good law, but if it is introduced, then it is likely that London will lose its mantra of ‘Libel Capital of the World’ and put pay to ‘Libel Tourism’, (which brings Her Majesty’s Courts and Tribunal Services substantial sums in Court fees every year).

It is a foregone conclusion that the libel laws need reform, purely for the fact that at times they appear incompatible with current technology. However, to move away from being Claimant friendly and spin towards protecting apparent absolute freedom of speech is not, I consider, the right way to go.

Granted, freedom of speech is important, as is the protection of one’s reputation but we have the best Judges and the best legal system in the world, to handle this complex area of law. This is why London is the capital of ‘Libel Tourism’.

A huge overhaul of the law is not required; just a little bit of a reform and an update should suffice.

The idea of the single publication rule, one of the proposed changes, is also an absolute scandal in the making, given the scope and size of the internet. If by some curse the single publication rule is included in the new Defamation Bill, I bet my house that we will have a spate of applications to the High Court applying to extend the period of limitation, which will in turn, simply increase the administrative burden on our Judges and Courts, something which I am sure the new Bill is trying to avoid, not increase. However, I will delve into this subject in depth at a later date, as it really deserves its own posting.

Internet Law Solicitor John Spyrou of Bains Cohen LLP

Check out my interview on Internet Trolling - page 95 of FHM’s June 2012 addition.