The Joint Committee on the Defamation Bill, a Parliamentary committee reviewing proposed new UK defamation laws recommends that web hosts and ISPs should be allowed to keep allegedly defamatory comments online, as long as the author of the comment is identified and a notice of complaint is published alongside the comment.
Currently web hosts and ISPs must immediately remove online comments upon gaining actual knowledge that the comments are defamatory i.e. they are informed that the comments are defamatory or they moderate comments on the website. Failure to remove defamatory comments exposes the web host or ISP to a claim for damages for defamation.
Under the provisions of the E-Commerce Regulations web hosts can currently avoid liability for defamation if they act as a mere conduit or cache or host material. This generally covers service providers who:
- do not initiate the transmission of defamatory comments;
- do not select who receives the comments; or
- do not select or modify information in the transmission of the comments.
Due to the above, many service providers do not moderate comments or content on websites to avoid having “actual knowledge” of defamatory comments. In order to remove this disincentive to moderate websites, the Parliamentary committee has proposed that there should be different rules for dealing with defamation which depend upon whether or not a comment is made anonymously.
Upon receipt of a complaint a web host or ISP should immediately take down anonymous comments unless;
- the ISP believes that it is in the public interest for the material to remain on the website i.e. whistle blowing; or
- the author promptly responds positively to a request to identify themselves, then a notice of complaint should be posted.
Anonymous authors of comments can be sued for defamation if they can be identified, and web hosts or ISPs that refuse to take down anonymous material can also be sued.
Identified Author Comments
Upon receipt of a complaint a web host or ISP should;
- publish a complaint notice beside the comment; and
- then have a judge decide whether or not the comment should be removed.
If web hosts and ISPs comply with the above they should not be liable for online comments. However, if they fail to comply with the above anonymous authors of comments should be sued for defamation if they can be identified, and hosts or ISPs that refuse to take down anonymous material could also be sued as publisher of the material.