UK Libel Law Gets Much Needed Update – But Also Threatens Online Anonymity
This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today – a platform where diverse content and free expression thrive – would not exist.
A long-fought-for bill to reform libel law in the UK received final passage and became law late last month. The Defamation Act makes many needed changes to the law and is largely a victory for free expression advocates, but its partial liability protections for website operators leave something to be desired, and pose significant risk to the ability to speak anonymously on the Internet.
Among the law’s improvements: it is now a defense to a defamation claim that a statement is a true fact or honest opinion, and statements published in peer-reviewed journals are privileged. Importantly, the law also limits the practice of “libel tourism,” whereby plaintiffs from around the world would bring their claims in the UK because of favorable laws there, whether or not there was a strong claim to UK jurisdiction. (CDT wrote about that practice in our paper on free expression and online defamation.) Concern over libel tourism had led the US to pass the SPEECH Act in 2010, which prohibits enforcement of foreign defamation judgments that do not meet US standards. Now, courts will not have jurisdiction over foreign defendants unless “satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.”
These are all significant improvements and major accomplishments for the advocates who have been pushing for them for years.
However, the new law also addresses website operators’ liability for third-party statements, and this is where it stumbles. The law provides that it is a defense for a website operator to show that he was not the author of the challenged material, but only if the identity of the author is readily apparent to the complainant or if the website operator has complied with rules (to be determined) concerning how to respond to notices of alleged defamation. Limiting intermediaries’ liability for third-party content is to be applauded, but in this case the conditions of protection carry great costs for free expression.
While the forthcoming regulations will change the contours of this protection, the provision nonetheless sets up a troubling incentive for intermediaries to disfavor anonymous or pseudonymous content. Website operators will face a choice between opting for real-name policies or risking possible liability for users’ content. Legal certainty is of great value to Internet intermediaries, so absent compelling alternatives, most will choose the former. Indeed, even with a strong third option, the risk that many site operators will choose the real-name path cannot be eliminated.
This would be a significant loss for free expression. The ability to speak and seek information anonymously is a crucial component of the right of free expression. Anonymity enables political criticism and organizing for those who fear reprisal for speaking out. It enables personal exploration of sensitive or controversial topics related to sexuality and identity. For these and many more reasons, the value of anonymity to free expression has been recognized by regional and intergovernmental human rights bodies, including in the Council of Europe’s 2003 Declaration of freedom of communication on the Internet.
The Internet – and the ability to use it relatively anonymously – has been a tremendous boon to the exercise of free expression and the right to access information around the world. So it is troubling to see the UK enact a step backwards on anonymity protection even in the course of progressive changes to its libel law.
The forthcoming regulations, which will have to be approved by Parliament, present an opportunity to remedy this misstep to some degree. To do so, they must provide a workable alternative to the real-name route that is protective of anonymity and of free expression more broadly. One way to do this is for the rules to focus on notice-forwarding and due process–respecting procedures for unmasking speakers in appropriate circumstances, instead of more onerous obligations that platform operators would be unlikely to choose. At the same time, a straight notice-and-takedown obligation would not be sufficiently protective of free expression, as CDT has written previously, given the complex legal questions that can arise in the defamation context and the risk of abuse. It is a tricky balance to strike, but it can be done.
The UK Defamation Act is in many ways a significant victory that does much to advance the cause of free expression, both online and off. It will still be much improved, however, if a middle path is found between its bias against anonymity on one hand and the risk of liability for online intermediaries on the other. The Act’s main proponents indicated in their initial analysis of the final bill that they share the concern about the website-operator provision’s shortcomings, and will be working to ensure strong protection for both intermediaries and anonymous speakers. As we congratulate them on the victory that is the Act’s passage, we support them in those ongoing efforts to improve it.