Last week a joint committee of peers and MPs published their report into the Government’s draft Bill revising the UK’s defamation laws. The revisions are manifold and aimed in part at reducing the amount of ‘libel tourism’ and also supporting complainants who cannot afford to make a legal challenge to those with bigger pockets. But it’s the proposals regarding social networking which seek to alter the liability of online publishers; the rights and wrongs of anonymous posting and the revision of the notice and take down procedure, which will have large repercussions and are exciting much comment.
As eModeration has frequently stated, the legal liabilities of a UK/EU online publisher (and by publisher I mean owner of a site containing UGC or an ISP) are not clearly defined, and would seem, if strictly applied, to actually penalise those who attempted to safeguard reputations by pre- or post- moderating all content. By doing so, they would seem to lose their entitlement to the ‘Hosting Defence;’ and be liable for all UGC published. However, this has been historically a grey area, with the few legal cases not yet indicating a clear view one way or the other. The result of this has been a natural inclination for publishers to err on the side of caution and remove material ‘just to be on the safe side’ – or to risk reputational damage by restricting moderation to reactive moderation only.
The recommendations of this report now seek to clarify the issue and to draw a distinction between anonymous and identified commenters. Their proposed system would work like this:
1. For ‘Identified’ comments:
a) Complaint is made to publisher.
b) Comment may stay online (at the discretion of the publisher) – however, a notice of the complaint must be published alongside it. If the publisher does not do so, it can only rely on the standard defences available (i.e. the Hosting Defence or any other defences against defamation).
c) Complainant may apply to the courts for a ‘take-down’ order.
2. For ‘Anonymous’ comments
a) Complaint is made to publisher.
b) Publisher must immediately contact the person who made the comment and ask them to identify themselves (in which case follow the procedures in 1 above).
c) If the commenter refuses to relinquish their anonymity, or cannot be traced, then the comment should be taken down from the site, and, if not, the complainant may apply to the courts for a ‘take-down’ order.
d) If the publisher 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.
If you find that a little confusing, there’s a good summary from legal firm Taylor Wessing, which reduces it to:
- posts by identifiable posters can remain online provided a notice of complaint is promptly published beside the material, unless the claimant has obtained a “take-down order”
- anonymous posts must be taken down, unless the publisher obtains a “leave-up” order
Taylor Wessing’s analysis of this part of the draft Bill can be found on Page 4 of their PDF.
Opinion as to whether these are smart moves is fairly firmly divided, as the comments below this BBC coverage show. Any perceived threat to free speech provokes reaction – and not all of it as thoughtful as this, from Justine Roberts, Mumsnet founder. She said while it was right to stop people from
“assassinating the character of others from behind the cloak of anonymity”
- the report did not recognise how useful anonymous postings were
“in allowing people to speak honestly about difficult real-life situations”.
“The recommendations could have a chilling effect on sites like Mumsnet where many thousands of people use anonymity to confidentially seek and give advice about sensitive real-life situations.” Justine Roberts, Mumsnet founder
From the moderation point of view, I’m interested in finding the answers to these questions:
What is anonymity? Anonymous to whom, the reader or the publisher?
Is it not publishing a name at all, or publishing an obvious pseudonym, or publishing a fake name? If I register myself with the BBC website as ‘Dave Smith’ and give dave.smith1225467@gmail.com as a working email address is that enough, even though of course it is not my real name? Would it be necessary to publish via a social network identity – which of course isn’t foolproof either *and* could lead to serious privacy issues?
Currently publishers have an option to permit anonymous posting. Should that no longer be an option? Tracing via an IP address is not always possible – and what about shared computers? It seems to me that publishers would do well to immediately pull down any anonymous comment which receives a complaint, given the dificulty of tracing the person who posted it.
What exactly needs to be published alongside a comment about which a complaint has been made? A counter, with the number of ‘flags’, or the substance of the complaint? Either way, a substantial rejigging of comment publication and moderation tools will be necessary.
What effect would this have on levels of complaints? There are fears it may increase them, and if it did, could publishers afford the necessary increased moderation workload in publishing complaints and contacting anonymous users?
All in all, whilst the aims of the draft bill are laudable, I’m not entirely sure this is a truly workable solution. What do you think about anonymity? Is it necessary to preserve free speech? Are there any other aspects of this reform which have got you worried? If you’ve got more doubts – or have any answers – please comment below (where you do have the option of anonymity, but all comments are pre-moderated 
)