Under current UK law website operators are considered secondary publishers of information posted by people using their services. That is, if you operate a forum, social media site, or other service where users may contribute content, and someone writes something defamatory, you can be held liable for its publication.
The committee is recommending changes to those rules which would create a notice and take down process. Any website operator who complies with the procedure would be immune from liability as a secondary publisher.
Under their proposal, 2 sets of rules would be created. One would apply to content posted by someone under their real name, while the other would cover content posted anonymously or under a pseudonym.
For the first category, where the poster could be readily identified, their proposal would require a notice to be attached to the content:
a) Where a complaint is received about allegedly defamatory material that is written by an identifiable author, the host or service provider must publish promptly a notice of complaint alongside that material. If the host or provider does not do so, it can only rely on the standard defences available to a primary publisher, if sued for defamation. The notice reduces the sting of the alleged libel but protects free speech by not requiring the host or service provider to remove what has been said; and
b) If the complainant wishes, the complainant may apply to a court for a take-down order. The host or service provider should inform the author about the application and both sides should be able to submit brief paper-based submissions. A judge will then read the submissions and make a decision promptly. Any order for take-down must then be implemented by the host or service provider immediately, or they risk facing a defamation claim as the publisher of the relevant statement. The timescale would be short and the costs for the complainant would be modest.
If the allegedly defamatory content was from an anonymous poster, the service provider would be required to either identify that person or remove the content:
we recommend that any material written by an unidentified person should be taken down by the host or service provider upon receipt of complaint, unless the author promptly responds positively to a request to identify themselves, in which case a notice of complaint should be attached. If the internet service provider believes that there are significant reasons of public interest that justify publishing the unidentified material-for example, if a whistle-blower is the source-it should have the right to apply to a judge for an exemption from the take-down procedure and secure a "leave-up" order. We do not believe that the host or service provider should be liable for anonymous material provided it has complied with the above requirements.
If a website operator ignored these guidelines for anonymously posted content, he would be considered its primary publisher for legal purposes.
Any host or service provider who refuses to take-down anonymous material should be treated as its publisher and face the risk of libel proceedings, subject to the standard defences and our proposals relating to leave up orders.
From an American perspective, this may appear to be a backwards proposition. In the US, service providers are shielded from liability for third party content by Section 230 of the Communications Decency Act.
However, as the MPs and Lords note in their report, it would substantially increase the protection currently afforded UK website operators. This, in turn, would hopefully make it more difficult to use the threat of lawsuits to suppress truthful information.
Written by: Rich Fiscus @ 21 Oct 2011 7:44
