A review of proposed libel law reforms has resulted in criticism from the Joint Committee on Human Rights. MPs have warned Parliament that the defamation bill might cause website operators to delete fair and legal posts due to commercial concerns.
The bill defines a defamatory statement as a piece of writing which “has caused or is likely to cause serious harm to the reputation” of an individual or a company. One standard defence against allegations of defamation is to prove a contentious statement to be “substantially true”.
However, the defendant is still required to enter arbitration in such an instance, as the claimant does not have to declare if the statement in-question is true – thus inflicting a financial burden on the host site. England and Wales sees 70 to 100 libel cases a year with most not reaching court as defendants prefer to settle.
The proposed amendments aim to protect hosting websites by giving them the ability to remove contentious materials in-lieu of facilitating contact with the aggrieved party and content author.
The joint committee highlighted the possible abuse of this defence by website’s looking to avoid legal challenges.
“We think there is a real risk that website operators will be forced to arbitrate on whether something is defamatory or lawful, and will too readily make decisions on commercial grounds to remove allegedly defamatory material rather than engage with the process,” read the committee’s report.
“We are also glad to see steps taken to protect website operators who are merely hosting content, but, as drafted, the bill could have a chilling effect on those publishing material online,” added, committee chairman, Hywel Francis.
“There should be a higher threshold put in place before material has to be removed.”
The committee has also asked the government to change the rigid structure of defamation defence to one based on ‘public interest’ – as utilised in the US.
“It is important that journalists and publishers feel confident that they can draw attention to matters of public interest without fear of being sued for defamation,” said Baroness Jay, chairman of the House of Lords constitution committee.
The current primary form of defence against defamation is the Reynolds defence – which refers to a legal precedent set by a 1990 ruling on ‘Reynolds v News Group Newspapers’. Though it does take the matter of public interest into account it still requires the application of an inflexible checklist which the committee argues is reductive as it asserts that online publishers need a “sufficiently robust and succinct defence”.
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