Lord McNally c/o Defamation Bill Team Ministry of Justice 6.

21, 102 Petty France London, SW1H 9AJ Dear Lord McNally, We write regarding Clause 5 of the Defamation Bill and the Ministry of Justice consultation on regulations for issuing a notice of complaint. Our consultation response is attached, and we have further comments, below. 1. A well formed notice makes the system more efficient We endorse the speech given by Lord Allan of Hallam to the Grand Committee (Day 3, 15 January 2013, Hansard Col. GC210). A well formed notice which sets out clearly the nature of the complaint will ensure that the notice of complaint system runs efficiently. This is in the interests of both claimants and defendants. Once the new law is in force, the Ministry of Justice should issue examples of how a well formed notice should be laid out. 2. The claimant should provide the facts Key to reducing the threat from vexatious defamation claims against web operators is that the claimant provide some factual detail to the operator as to why the content is not only defamatory but could also be considered unlawful. We support Lord Lester of Herne Hills amendment to Clause 5 to be moved at Report Stage, which would oblige the claimant to provide some factual details as to why a statement is untrue, unsupportable and damaging. We believe this is a reasonable requirement. 3. The Clause 5 process requires a court-based backstop It is likely that most posters, when threatened with any kind of legal action, will not consent to their contact details being passed to a potential claimant, regardless of whether their words are defamatory and unlawful. If this is the case, then the Clause 5 process will merely formalise the routine reputation management that results in content being removed unjustly. A court based procedure, which allowed a defendant to seek a ruling from a Master as to whether the notice meets the basic requirements of a libel claim (as outlined by Viscount Colville of Culross, Hansard 15 Jan 2013, Column GC207) would go some way to resolving this impasse. A cheap procedure (which could be administered online) would also be of great benefit to claimants. Where they do have a case, but the poster insists on anonymity, a

declaration from a Master that their complaint does meet the basic requirement of a libel claim, would provide certainty to the operator and hasten the remedy. We urge the Ministry of Justice to include a court-based declaration procedure in the regulations. Reinstatement The proposed regulations, as outlined in the consultation document, make no provisions for allowing a defendant to change their mind. A situation may frequently occur, where a poster quickly assents to their words being taken down because they have received a notice and are uncertain about their legal position. However, after short reflection and/ or legal advice, they may consider that their words are defensible (for example, a lay person may not be aware that defences of honest opinion, privilege or substantial truth even exist). In such situations, there must be some equally efficient method whereby they can re-post or otherwise reinstate their words. When they invoke this process, the operator must retain their defence. Most web operators are David, not Goliath During the Committee Stage debate in the House of Lords (15 January 2013), several parliamentarians offered amendments, and gave speeches, based on the premise that web operators tend to be large Goliaths who have no commercial interest in helping claimants. This is a caricature. In fact, most of the web operators who are chilled by libel threats are Davids, likely to be classified as small businesses. As an example of this, one might refer to the membership list of the ISPA. The vast majority of their members are classified as medium or small, operating on small profit margins with no in-house legal support. The Clause 5 regulations for a notice of complaint should be designed for these small businesses, and for amateurs operating web forums and discussion groups. Yours sincerely Tracey Brown Director, Sense About Science www.libelreform.org Kirsty Hughes Chief Executive, Index on Censorship Jo Glanville Director, English PEN

Defamation Bill: Regulations under Clause 5 Consultation Response from the Libel Reform Campaign
Q1. Do you agree that the regulations should give the court the above discretion regarding time limits and that this should be exercised where the court considers it in the interests of justice to do so? If not please give reasons. Yes. Many of the ISPs and web hosts may be small companies or individuals, who do not have immediate access to the material. A situation may arise where the operator cannot reasonably make the mandated take-down within the agreed time limit, especially if this limit is short, or due to the volume of requests. Q2. Do you agree with the above contents required for a notice of complaint? If not please give reasons. Yes. Giving such information will discourage speculative reputation management when there is no defamation that would be actionable in law. An example of this practice might be the actions of lawyers acting on behalf of MRI Overseas Property, which routinely threatens legal action to web forums hosting negative comments about the company. (See report in The Phoenix, 11 March 2011, p40: http://bit.ly/TxdsLU). Furthermore, a notice that is well formed (potentially standardised fields) increases efficiency, which is of benefit to both claimants and defendants: A well formed notice that has all the necessary information will be able to be acted on swiftly by the recipient of that information-in this case, the website operator-and the solution can be reached more speedily.
(Lord Allan of Hallam, Committee Stage Debate Day 3, 15 Jan 2013, Hansard Column GC210)

Q3. Is there anything further that you think should be included? If yes please specify. A formal declaration by the claimant that the information they provide in their claim is true. We also support Lord Lester of Herne Hills amendment to Clause 5 to be moved at Report Stage, which would oblige the claimant to provide some factual details as to why a statement is untrue, unsupportable and damaging. We believe this is a reasonable requirement. Modern technology allows such notices to be generated and submitted electronically. This offers the potential for all notices generated to be automatically logged on a confidential, court maintained database. Such a system would protect claimants, who would be able to generate a receipt of the precise time they submitted a notice. It would also serve to generate invaluable statistics on the number of notices served.

Q4. Do you agree with the process that is proposed in relation to invalid notices of complaint? If not please give reasons. We agree that the operator should not be required to tell the claimant what is wrong with the notice. Web operators are unlikely to have the legal skills to judge whether a notice is valid. However, the Ministry of Justice commentary on this point states
the question of whether a the notice was or was not valid would be the matter for the court to determine (page 3)

We agree that a court should be the arbiter of whether a notice is valid. However, there are no provisions in the current Clause 5 proposals or regulations for how a court may rule on this point. We strongly recommend that a process be put in place whereby any of the parties to the dispute (claimant, web operator, poster) be able to seek a ruling from a Master on whether the notice is valid and there is a prima facie case to answer. This provides certainty for both claimants and defendants. It would discourage vexatious claimants, and also vexatious posters of obviously libellous material. Ministry of Justice could provide further assistance to both claimants and defendants by publicising a checklist of the elements (compulsory and optional) which make up a notice (or even provide an online tool which generates such a notice), and also a short checklist of the basic hurdles that a libel claim must meet. If it were to do this, the potential for confusion would be significantly reduced. If the Ministry of Justice were to provide a standardised form for notices (perhaps in PDF format), that document could also contain paragraphs on the operators rights under Section 5 (as it will become known). Q5. Do you agree that 72 hours is an appropriate period of time for the operator to forward the complaint to the poster? If not please give reasons and indicate what other period would be appropriate. Yes. It is imperative that the time period lasts longer than a weekend, otherwise small operators may not be able to act on notices out of working hours. Q6. Do you agree that the communication from the operator to the poster should contain the contents listed above? If not please give reasons? Yes.

Q7. Is there anything further that you think should be included? If yes please specify.

In addition, the operator could forward on details of the posters rights under the Section 5 process in particular, and the defences available more generally under the Defamation Act 2013 (as we presume it will become known). Q8. Do you agree with the time limit (of 7 days of sending) proposed for a poster to respond to an operator regarding a notice of complaint? If not please give reasons and indicate what other period would be appropriate. Yes. This gives enough time for a poster to seek legal advice. We anticipate that other respondents may take a different view, that 7 days is an extremely long time to leave a potentially unlawful defamatory statement online and visible. This view mistakes the meaning of Clause 5, which is is intended to allocate responsibility between the alleged victim and the website operator (Lord Lester, Hansard, Grand Committee Day 3, 15 Jan 2013, Col. GC217). The proposed 7 day limit is not a grace or privileged period for the defendant, and would never be seen as such. Rather, it is simply the time within which an operator is exempt from liability. There is no such time limit for the person who actually posted the words. They are always liable, from the moment they post the material. From their point of view, the greater the delay in removing the words, the greater the harm caused, and the greater exposure to potential damages. We wish to raise a further point with regards to timescales. A poster who is unsure of their defences may choose to temporarily disable the post while they seek legal advice. However, after taking advice they may decide that their words are defensible, and therefore repost or reinstate the content. This action should not prejudice their rights or be seen as a concession or admission that the post is unlawful. Such reinstatement within the time limit should certainly not prejudice the rights or liability of the operator. Q9. Do you agree that a posters response to an operator should include the above elements? If not please give reasons? Yes. Q10. Is there anything further you think should be included? If yes please specify. Operators should be encouraged, as a matter of best practice, to issue reminders to the poster to respond to the notice. This could be automated. Q11. Do you agree that 48 hours is an appropriate period of time for an operator to action a response from a poster agreeing to removal? If not please give reasons and indicate what other period would be appropriate. No. We think 72 hours would be more appropriate. This longer time period would always allows small operators to fulfil the required action within working hours.

Q12. Do you agree that an operator should take down material within 48 hours of the expiry of the deadline if the poster has not responded within the prescribed time limit? If not please give reasons and indicate what other period would be appropriate. No. We think 72 hours would be more appropriate. This longer time period would always allows small operators to fulfil the required action within working hours. Q13. Do you agree that the clause 5 process should apply in the normal way the first time that a poster reposts the material? If not please give reasons. Yes. The Clause 5 process concerns a defence against liability for the operator. It assumes that the operator has very little level of influence over the poster. The Clause 5 process should therefore not be curtailed in the event that someone reposts the material. Offline, there are serious legal and financial consequences for those who republish material that has been ruled to be defamatory. Such actions are held to be malicious and the penalties are therefore more severe. A poster who re-publishes material in this manner will expose themselves to similar legal sanctions. There may be rare cases where many people have reposted a defamatory statement on a social network, and the operator is overwhelmed with Section 5 notices. This lends weight to the idea of a declaration from a court on whether a statement is prima facie defamatory. If the court ruled that the statement was defamatory, then this would mandate the operator to remove all offending comments, so far as they are technically able to do so. Alternatively, if the statement did not meet the criteria, the Masters ruling would give certainty to the operator that the statements could be left up. Q14. Do you agree that the operator should remove the material upon being informed by the complainant without following the clause 5 process if the poster persists in reposting? If not please give reasons. It depends on the nature of the repost. If a poster has republished something, it will be for one of four reasons: (1) A mistake. (2) They are being unreasonable and malicious. (3) They have received new information that has changed their opinion of whether they should publish. (4) They were unaware of the Clause 5 procedure (the example given is that they were on holiday and did not receive the notice of complaint from the operator) In the first two cases, it would be appropriate for the operator to take down the material, without embarking on another Clause 5 procedure. The material is likely to be exactly the same as the

original. In the latter cases, it would instead be appropriate to re-start the process afresh. The content may also be slightly different. If the re-post is for reasons (3) or (4) then it is likely the poster will formally indicate that they will defend what they have posted. The Clause 5 process is the simplest way for them to do this. We anticipate that others may disagree, and suggest that malicious posters may seek to continually re-post, changing the content each time in order to trigger the Clause 5 process. We repeat the point made in response to Q8, above: Clause 5 is intended to provide protection to the operator. A poster who chooses to extend the process does in the knowledge that they are exposing themselves to greater damages, and also accusations of malice. This distinction lends weight to the inclusion of a court-based declaration procedure, which would cauterize malicious re-posting. Q15. Do you agree that in the above circumstances the operator should provide the posters contact details to the complainant within 48 hours? If not please give reasons and indicate what other period is appropriate. No. We think 72 hours would be more appropriate. This longer time period would always allows small operators to fulfil the required action within working hours. Q16. Do you agree that the operator should take down the material (if the poster refuses to give/provides obviously false contact details) in order to retain the clause 5 defence? If not please give reasons. If the details submitted are shown to be false (or even, simply inaccurate, incomplete, or critically misspelt) then the operator should take down the post, as per the procedure outlined in paragraph 23 (above). This is a process outlined in law, and those involved should be obliged to ensure that the details they submit are correct. However, we disagree that there should be an automatic take-down of material when a poster actively refuses to give details. There may be cases where it would be justified for the poster to withhold details from the host. If the posted material is whistle-blowing in nature the poster may not wish to release their details to operator. In such cases, the poster would clearly have make arrangements to provide some other method of contacting them, perhaps through a solicitor or other designated proxy. It is routine for websites such as Craigslist or eBay to provide means of anonymised communications between parties, this should be incentivised as a solution to where the defendant (potentially for reasons of public interest) refuses to pass over their personal contact details. Anonymised communications between the parties should be easily accessible and not a method of last resort.

We believe operator takedown where a user refuses to pass over their personal contact details would cause a great deal of content to be unjustly removed from the internet. Many posters will simply baulk at surrendering their contact details and the content will be removed by default, even if the claim is easily and completely defensible. However, if a court-based process were to be included in the procedure, the defendant could seek a ruling on whether there was a genuine case to answer. We anticipate that others may take the view that defendants may seek to retain anonymity to force the process to its most protracted conclusion, simply in order to extend the defamation. We repeat the point made in relation to Q8, above: Clause 5 is intended to provide protection to the operator. A poster who chooses to extend the process does so in the knowledge that they are exposing themselves to greater damages, and also to accusations of malice. This distinction lends weight to the inclusion of both anonymised communications means provided by operators between parties and a court-based declaration procedure in the process. Q17. Do you agree that the operator should be required to notify the poster on receipt of an application for a Norwich Pharmacal Order? If not please give reasons. Yes. Knowing about the order will allow the poster to seek legal advice and revisit their decision as to whether they wish to defend the words complained of.