The government has published a draft libel reform bill; we'd like to know what you think

[RowanMumsnet]

As lots of you will know, MNHQ is a part of the Libel Reform Coalition, which has been campaigning for major changes in the libel laws in England and Wales. This week the government published its draft defamation bill, which is intended to address some of the major criticisms of the way libel currently works; more background here. The government is now seeking people's views on whether it is on the right track; the consultation period will end in June.

One thing everyone seems to agree on is that the treatment of web hosts - like MNHQ - in the draft bill is very underdeveloped. We will be feeding back our thoughts on possible ways forward to the consultation body, and as ever we'd be interested to hear what you think. (If you look at paragraphs 140 onwards in the consultation document, you'll see some of the specific proposals that are being considered; you can also read the Libel Reform Coalition's response to the bill.)

Thanks,

MNHQ x

In short, the whole purpose (for those wondering) of this consultation in relation to online content specifically is this:
'Concerns have been raised about the need to clarify the law as it
operates in relation to material published on the internet. This is a
complex area of the law, and we consider that it would benefit from
further consultation before legislative provisions are drafted. This section
of the consultation paper therefore seeks evidence on the problems that
are currently faced and suggestions as to how the law could best be
clarified so that appropriate provisions could be included in the
substantive Defamation Bill. It also seeks views on whether there should
be any change to the law to give greater protection against liability.'

The variety of internet services which are now available means that a
wide range of people and organisations can potentially be affected by
issues relating to defamatory material, from large scale internet service
providers such as Google and Yahoo and social networking sites such
as Facebook and Twitter, to smaller scale discussion boards such as
Mumsnet, local forums on specific issues of local interest, and individual
bloggers.

Well, this will be useless to you MN because I haven't had time to read it properly as DS is trashing the place and demanding food- ehem- but in short:

• defence of honest mistake is a necessary provision, to the standards prescribed

-defence of parody- IT'S NOT THERE! How very outdated is that- Have I Got News For You, for example, has satirically torn apart countless people for more than a decade, so why is it not in the Bill?? Most people on MN, and some people in RL have a sense of humour, and the law needs to provide for this

-I like the concept of limiting liability to websites that host content online.

• I don't like absolutely limiting liability because that will make it hard for someone to protect their reputation, perhaps, and it seems unfair if the site holds an editorial/responsible stance
• I really really like the statutory notice procedure. Cl 9 of Lord Lester's bill is quite well formed in this area already but I would amend it to 21 days
• I have problems with being sued for something I have written online. But I have problems with having no recourse if someone writes something defamatory about me online. Freedom of expression v right to protect your reputation is the real issue blabla

Other suggestions will be forthcoming when I've read it on the train. For all content by users I think websites should be insured and should risk assess whether something should be removed or not. Thus if the notice is issued, and it is not taken down, the insurance, much like public indemnity insurance (do you have this already?) will cover it but the standard of proof should be high- I'm uncomfortable with the burden being solely on one party or the other because for the burden to be on the claimant, well, that may disadvantage the poorer claimants, for the burden to be on the host site- well how do they know.

Basically I think the bill is somewhat lacking in any substance about this area so it's hard for us to comment until it is formed in a more logical way. If you are looking for suggestions then it would help mumsnetters to read what you think the law should be in this area and then we can comment from our perspective as to whether it is fair or realistic, and as to whether that would put us off perhaps using the site in this way

YY what vinestein said about telling us what MN HQ thinks.

Hello,

Thanks for all these. At the moment I'm not sure that we 'think' anything in particular about this, which is why we wanted to ask you lot!

At the moment, our major concern is that the sheer cost of defending libel actions means that our standard response is to delete posts when we receive complaints, even if we think that the post is actually completely defensible. Obviously, we'd rather not do this; it's bad for the quality of discussion on the board, and it's bad for freedom of speech/expression.

We absolutely support the rights of individuals to protect their reputations, and we have no problem with removing posts that are plainly malicious or defamatory. The problems occur when we think posts are not malicious or defamatory, but we have to remove them anyway.

As an aside, one controversial question about this bill is around the rights of corporations (as opposed to individuals) to sue for defamation. Some of the reformers are campaigning for this right to be removed from corporations, although that's not in the bill at the moment.

The consultation document sets out a few possible ways forward WRT web hosts, and it's these we'd like to get your views on. I will outline these in my next post.

Out of interest, why is it so much more expensive to defend a libel case in UK than in rest of Europe (140 times more expensive apparently)? Does that just reflect a greater cost of litigation across the board, or is it something distinctive about libel?

Good point, Serial.

OK, so, the options presented in the consultation document (p43, para 114 onwards) are:

1. remove liability from eg Mumsnet altogether. NortyPoster to be fully liable for anything she posts on the site; Mumsnet to have legal obligation to pass on to complainants NortyPoster's contact details (which would mean us having to collect much fuller registration details in the first place; not sure what could be done about existing posters, for whom we only have email addresses in the main). NortyPoster's post to remain visible on Mumsnet (unless we agree it's obviously defamatory) until the issue is resolved between the complainant (MrAngryEmail) and NortyPoster.

2. Statutory process to be set up, in which eg Mumsnet acts as a contact and liaison point between NortyPoster and AngryEmail, and (I think, although document is not clear) attempts to broker a compromise. If no agreement is reached, AngryEmail could initiate legal proceedings against NortyPoster, but not against Mumsnet.

3)Introduce a new requirement for AngryEmail to obtain a court order before Mumsnet is required to remove any posts. Mumsnet remains liable (I think) for the posts, but at least the issue will have been before a judge and thus we would know that AngryEmail's case had some merit. (Depending on how you feel about judges.) I'm not sure, in this scenario, whether Mumsnet would remain open to a suit even after the post had been removed, or whether Mumsnet's compliance with a 'notice and remove' order would be, legally speaking, the end of the matter.

4. Make a legal distinction between small/local forums (where NortyPoster would be directly liable for her posts) and bigger UGC sites/forums (where the company/host would be liable). Don't know whether Mumsnet would be considered to fall into the big or small category here, so...

That's how I see it, anyway.

Hmmm, I don't know SerialComma but I will see if I can find out for you. Possibly that the piecemeal nature of English defamation law (lots of statutes, common law, case law) means that years can be spent in pre-trial arguments, with all the attendant costs?

I think people should be responsible for themselves but I don't think things like what happened before should happen. Having an opinion about an issue or person shouldn't be regulated, humour shouldn't be regulated and lets face it no one would read that someone straps babies to rockets and believe they actually did! Personal malicious comments that are passed off as truth that will damage someone are what we need to take personal responsibility for and should be regulated.

One particular forum is a good example of how things risk getting. You can't discuss things they don't agree with - BLW is enough to get you banned - and you can't argue with people. I've been banned 3 times on the day I joined for talking about BLW and disagreeing with the mods when they posted back I was giving dangerous advice. I'm leaving the name out as I feel it's particularly inappropriate on this thread but lets say it's not one of the ones MumsNetters joke about and is one that gets linked to regularly.

I would like to alert the mumsnet members to aspects of the Defamation Bill (a combination of Lord Lester's original bill and the Government's new bill) which can affect them but which probably they are not aware of.

The area of the bill which is of concern is that of Defence of Privilege in Defamation Law, which encompasses any material used or disclosed as part of Court processes and this can include medical records, when disclosed in the course of a medical negligence case. These records can be passed to a solicitor acting for the client (patient) or a number of solicitors, lay members of the Legal Aid Commision, barrister giving an Opinion, and various medical experts who are asked for an Expert Report.

The only person who cannot have access to these medical records is the client (patient) as the Law allows for the holder of the records (usually a GP) to refuse acess. Therefore there is no means whereby a client (patient) can verify or otherwise contradict what is in their records, particularly when two separate medical expert reports can be prepared, one of which is for the client (patient) to see and one which is confidential with the undisclosed information for the solicitor.

Should a patient eventually gain access to their records, by applying to the High Court, and find their reputation, personal, professional or both, has been defamed and/or there are proven discrepancies between events, medication, medical procedures and basic facts such as their family details, working life, qualifications, etc., there is no legal redress, as the Defence of Privilege applies to these Expert Reports and Medical Records.

This can have very serious conequences for the client (patient), who finds that they have been subjected to unauthorised medical procedure or who has been unfortunate to have had an incompetent, or in the exptreme case, criminal doctor (I would remind mumsnet members of Harold Shipman). There are many cases cited over the years, the most recently UK group action in 2002, where medical experimentation had been carried out on unsuspecting and vulnerable patients.

The legal profession, on all sides of the House of Commons and House of Lords, is using the Defamation Bill to tighten up even more the Defence of Privilege. This tightening up would prevent patients having legal redress about any lies discovered in their medical records and the government and the legal profession are relying on the ignorance of the average person to the legislation to get it passed.

The consultation period ends on 10th June 2011 as the Report on the Draft Bill is to be submitted by 19th July 2011. If you wish to be able to seek legal redress if you or members of your family find they have been subject to lies about their character, qualifications, or medical treatment in their medical records, then they should submite their opinion to

Paul Norris
Legal policy Team
Ministry of Justice
6.38
102 Petty France
London SW1 9AJ

The sections of the Bill covering these issues are Section 5 Privilege and Section 4 Honest Opinion.

Do not worry about not having legal knowledge. It is is important you simply write stating that you want the Defence of Privilege and Honest Opinion to be excluded in a claim for Defamation relating to medical records. Those with a legal bent can read it on line for themselves. also you should write to your MP expressing concerns about these Defences in the Defamation Bill.

An example of how injustice can occur because of the current Law relating to Access to Medical Records and Defamation is given in the book "Expert Witness" by Celia M. Bibby which is published by LULU.com and can be accessed on that website. (Sorry mumsnet this is not advertising but a preview may show what is at stake) The issues raised in this book are of public interest and the author of the book has submitted evidence to Lord Lester on the Bill.

I know that this is a very long message but I hope that those mumsnet members who read it will realise that this has been written by someone who is a qualified professional woman with experience in the area under discussion.