Last month, the United Kingdom finally green lit some new defamation statutes. Parliamentarians had negotiated on terms for over three years. Their main goals were to reduce the number of libel tourism cases filed in the country, plus fortify free speech protections for journalists and bloggers.
Sides argued, lobbyists cajoled and Parliament debated. When the machinations ended, the nation passed a new libel law on April 25, 2013 ( Took effect on 1/1/2014). Entitled the Defamation Act of 2013, the statute was touted as a much needed libel law adjustment, 128 years in the making.
But like many laws, the devil is in the detail. To wit, the Godfather of 21st century Internet law theory, Eric Goldman, articulated potential problems with the Defamation Act of 2013. The burden the new law places on website operators may have the opposite effect than officials intended.
UK’s New Defamation Law
The UK Defamation act of 2013 passed on April 25, 2013. Generally speaking, the bill tightened the country’s libel tourism provisions and added a bit more meat to their free speech statutes. At least that’s the message dominating the media. But as Goldman points out, Section 5 of the bill – which deals with “Operators of Websites” — may result in unforeseen consequences.
Section 5 of the UK Defamation Act of 2013 establishes a notice-and-takedown process for user generated content (UGC). According to the law, a website cannot be sued for online libel if the plaintiff doesn’t first send a takedown request. If they don’t act with malice, webmasters who edit their sites are still eligible for protection under the law.
As is often the case, however, a “rub” exists. Under the UK Defamation Law of 2013, a website operator cannot claim immunity if they are unable to provide identifying information about users. In other words, a webmaster is only safe if he or she can hand over information that allows the alleged victim to track down their defamer. So what does that mean in practical use? In all likelihood, people who run UK-based websites will probably remove material the second they get a request to do so. Sure, they could start verifying the identity of every person using their sites, but the effort and cost involved probably isn’t worth it.
The other potential problem Goldman highlights is that unlike the Section 230 of the CDA, the UK defamation law doesn’t include any consequences for filing a false takedown request. To put it simply, the omission could cause headaches – and end up clogging up the courts. (Ironic, since one of the original goals of the bill was to reduce the amount of frivolous defamation lawsuits.)
Goldman’s On-point Theory About UK’s New Defamation Law
In an article on Forbes.com entitled, UK’s New Defamation Law May Accelerate The Death of Anonymous User-Generated Content Internationally, Eric Goldman opines that “the act’s most change to existing law is creating a user identification obligation.” He also points out that “having a user’s IP address doesn’t seem to satisfy the act.”
Goldman also deftly explains that the new UK defamation act does not restrict third party access to data for defamation litigation purposes only, which means anybody will be able to subpoena websites for identifying information. So, expect people to use the law for various intellectual property issues, as well.
What Will The Future Hold For The UK Defamation Act of 2013?
Welp, at this point, there is no stopping the UK Defamation Act of 2013. It’s the new law of Her Majesty’s land that goes into effect on January 1, 2014. That said, it will be interesting to see if the new statutes will create fresh problems.