11 Furlong Road
9th May 2007
Department for Constitutional Affairs
5th Floor Selborne House
54-60 Victoria Street London
Dear Mr Fiddler,
I am writing on behalf of Mumsnet, the community website for parents which has 100,000 members and well over half a million users per month.
We are pleased to hear that your forthcoming consultation on defamation will include consideration of how the libel law applies to the internet but would urge you to review a few specific issues.
We believe that libel law, which effectively regards bulletin boards in the same way as newspapers, books and magazines, has not caught up with new forms of publishing and communication online with the result that freedom of expression is being curtailed.
The Law Commission acknowledged as much in 2002 when it warned that a rethink of defamation law was needed to protect freedom of speech online.
Then commissioner Hugh Beale QC, warned: "When a website carries material to which someone objects - rightly or wrongly - it is often easier to complain to the ISP than to the author. The problem is that the law puts ISPs under pressure to remove sites as soon as they are told that the material on them may be defamatory. There is a possible conflict between the pressure to remove material, even if true, and the emphasis placed on freedom of expression by the European Convention of Human Rights."
With no change to the law on defamation since then, websites running bulletin boards now find themselves in a similar position to that described by Mr Beale. Faced with a complaint, most websites, frequently small businesses or individuals with limited resources, feel they have no option but to remove material, irrespective of its legitimacy, with obvious consequences for freedom of expression. And even if they do quickly remove a posting which has been the subject of a complaint, the extent of their liability remains unclear.
Consequently we believe the following issues need urgently to be addressed:
- Does holding websites liable for postings by users on their bulletin boards have the effect of unacceptably curtailing freedom of expression?
- Is a website which swiftly removes material following a complaint protected from liability for the posting? And how swift is swift?
- Should the different nature of bulletin board communication be taken into account in assessing whether a complainant has been defamed? For instance if a single poster makes a defamatory comment but is immediately rebutted by a large number of users should the resulting thread be resulted as defamatory? Or should there be a requirement to consider bulletin board conversations in the whole?
We would stress that we accept that individuals have a right to protect their reputations. However this right always has to be balanced against the rights of others to freedom of expression and we believe that this balance is not currently struck in the right place.
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