A Liberal Democrat peer has proposed a law that would aim to clarify how quickly ISPs and publishers have to act when told of a defamatory post or article.
If the new law, proposed by Lord Lester, became practice it would mean that defamatory material would not have to be taken down for 14 days, unlike the current laws which state that companies not directly responsible for a message can escape liability for it but only if they take it down straight away once they have been informed of it.
It will also help reduce the burden on ISPs giving them a 14-day window to respond to claims of libel as well as seek a response or a challenge from the creator of the content before taking it down as well as a defence for “responsible publication on matters of public interest”.
Hanna Basha, a partner at Carter Ruck, said the new law would “seek to codify rights and iron out issues.”
She told TechEye: “In essence it has been long established that a publisher which innocently publishes defamatory words has no liability to pay damages until it is put on notice. This is an important defence for websites which often carry information published by other users without checking this information first.
“So long as the website acts quickly to remove the words after it has been told they are defamatory, then it does not have to pay damages. The historical issues with this defence is that no-one is really sure what a publisher needs to be told to have been given effective notice and no-one is really sure how long a website has to remove allegations after it is put on notice. The new bill seeks to codify these rights and iron out some of the issues.”
However publishers think differently. We spoke to a publisher of a large website, who told us: “Generally speaking, an attempt to codify these rules is an improvement on the situation we’ve had before. Unfortunately, I’ve been involved in cases where companies have approached ISPs without my knowledge and attempted to down my site.”
He also said involving the ISPs had drawbacks.
“Experienced journalists have a knowledge of libellous material which ISPs can’t be expected to have, and this could lead to a situation where a story is non-defamatory, journalists would like to protect it to the hilt but find themselves unable to because of ISP’s ignorance of hard news.
“Practically every attempt by legislators to regulate the internet has ended up a mess, with companies with vested interests unduly influencing the way the laws are drafted. The Digital Economy Act is just one example of this,” he added.
However, it seems as though we don’t have to get our knickers in a twist just yet as this law may not even be passed.
A Ministry of Justice spokesman said: “We welcome the detailed consideration that Lord Lester has given to these important issues. His proposals cover a wide range of issues, and we want to give them careful consideration before reaching a view on the Government’s position.”
While a spokesperson at The Internet Service Providers Association told TechEye: “UK ISPs use a system of notice and takedown which means that when an ISP is notified of illegal content hosted on its network or server this content is removed expeditiously.
“Regarding Lord Lester’s proposed Libel Bill, ISPs will continue to act by the law and, following investigation, will remove illegal content from their servers. Also, ISPs have acceptable use policies and terms of service, which all users agree to adhere to. If a user is found to be in breach of these terms and conditions by acting abusively, ISPs may choose to take action by removing the content. Furthermore, lots of individual sites and chatrooms may choose to monitor content or have report abuse functions to remove abusive material.”