Internet publishers and ISPs have joined forces to ask the Government to reform libel laws to protect the free speech rights of bloggers and commenters and to strip host companies of liability for libellous statements.
The companies have asked the Government to change the law so that hosts and publishers do not have to take down any material that might be libellous until a court tells them to. They also want a public interest defence to libel.
Facebook, Yahoo!, AOL, the Internet Service Providers' Association and others have written an open letter to David Cameron demanding changes to the law.
The English law of defamation is having a disproportionate, chilling effect on online writers, e-communities and web hosts, they argue.
"The libel laws have not been updated to address the rise of online publication. The current multiple publication rule, dating back to 1849, defines every download as a publication and a potential new cause of action," said the letter.
"Internet service providers can be held liable for comments they host and therefore are inclined to take down material or websites even before the writer or publisher has been made aware of a complaint," it said. "Such intermediaries usually have no access to the background or relevant facts and should not be expected to play judge and jury in determining whether a writer’s material is defamatory or not. This is a decision that can and should only be made by the direct parties involved."
Laws based on the E-Commerce Directive say that intermediaries are not responsible for unlawful material they allow others to publish until they gain actual or constructive knowledge that it breaks the law. At that point they become resonsible for it unless they take it down quickly.
Both the ruling Conservative and Liberal Democrat parties pledged to reform the libel laws in their manifestos before this year's general election. The Government said in July that it would publish a new Defamation Bill early in 2011.
It said its Bill would seek to give writers and commentators more rights at the expense of people suing for libel.
"The Government recognises the impact that the current law may be having on freedom of expression, particularly in relation to academic and scientific debate, the work of non-governmental organisations and investigative journalism and will be looking at options for addressing concerns around 'libel tourism'," said a Ministry of Justice statement at the time.
The letter asks that the Government give more protection to the companies responsible for internet publishing.
"ISPs and forum hosts – ‘intermediaries’ – should not be forced to take down material without a determination by a court or competent authority that the content is defamatory," it said. "The claimant should in the first instance approach the author rather than an uninvolved intermediary."
The letter also demanded that an online comment be taken to have been published only when it was first online so that the one year limitation on acting on it can take effect. Courts have said that an online comment is 'published' each time it is accessed, meaning that there is no effective limitation on libel actions based on it.
The letter also asked that people acting in the public interest be able to use that as a defence, and that the defence be related to the context of publication.
"There should be a public interest defence in cases where the material is on a matter of public interest and the author has acted in accordance with expectations of the medium or forum," it said.
"ISPs are currently in a position where they may have to decide what bears defamatory meaning, putting the intermediary in a position of judge and jury over content," said ISPA secretary general Nicholas Lansman. "We therefore support the call for an innocent dissemination defence, that ISPs should only be forced to remove defamatory material that has been decreed defamatory by a court or competent authority, and to bring libel law into the twenty-first century through the creation of a single publication rule."
“Many web publishers lack the expertise and financial resources to defend against libel actions and are particularly vulnerable to threats," said Peter Noorlander of the Media Legal Defence Initiative.
http://www.out-law.com/page-11565
