Paul Jonson, head of dispute resolution, Pannone
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The Defamation Bill seeks to simplify the process of unmasking abusive internet trolls
Social media and the internet are fast becoming the communication platform of choice. An unfortunate side effect of this is the emergence of the so-called internet troll, whose offensive taunts have even led some victims of abuse to suicide.
Until now, victims have been unable to uncover the identity of internet trolls without a court order. However, the Defamation Bill, which is going through Parliament, seeks to bring the laws up to date with changes in technology and redress the balance between freedom of speech and the interests of victims of online defamatory publications.
The urgent objective for victims of online abuse is to have the defamatory statements taken down. Where the author of the publication cannot be identified, this often leads to claims being pursued against website operators that fail to comply with take-down requests. The dilemma for website operators is that they are not in a position to carry out an assessment as to whether a statement is defamatory or not.
If they do not act expeditiously in removing the potentially defamatory statement, they may lose the benefit of a defence under Section 1 of the Defamation Act 1996 and find themselves subject to a claim in libel. However, if they take down the statements, then they risk curtailing the rights of the author of the publication under the right to freedom of speech.
At present, website operators would be in breach of data protection laws if they disclosed the identity of internet users without a court order. To secure a Norwich Pharmacal order a potential claimant needs to demonstrate that the website operator is not a ’mere witness’ to the defamatory publication but involved in the wrongdoing and that the disclosure is necessary in the interests of justice.
Earlier this month, Nicola Brookes from Brighton succeeded in obtaining an order from the High Court requiring Facebook to disclose the IP addresses and basic subscriber information of individuals who had falsely portrayed her as a paedophile and drug dealer.
The Defamation Bill, which has been considered by a Public Bill Committee and is expected to report its findings tomorrow (26 June), proposes a solution to the current difficulties by affording website operators a defence to a claim in libel if they disclose the identity of the person who posted the statement complained of. The Government has indicated it will provide further guidance as to the legal process that website owners will be required to follow. The Information Commissioner’s Office has asked that the Government bear in mind the interaction between the Data Protection Act and the proposed reforms.
The number of libel claimants citing material published online in their actions has more than doubled in the past year. The proposed changes provide potential claimants with the opportunity to pursue an action against the true author of the defamatory publication without the need for a court order.
This should mean that those publishing libellous comments are held to account and cannot hide behind a pseudonym or anonymous post. It is clear the proposed measures will go some way towards helping claimants such as Brookes get quicker access to justice for reputational damage caused by internet trolls.