Into The Hornets’ Nest: Robert Jay’s Solution to Online Defamation

Out of the ashes of the Leveson inquiry, Robert Jay, QC, gave a widely reported speech to the Singapore Academy of Law. In this speech, Mr Jay threw his hat into the ring of finding a way to drag defamation law into the 21st century. His idea? For internet service providers (ISPs) to be placed under a duty to ensure their customers could not access defamatory content.

Much of the attention Mr Jay received was in respect of his criticism of the UK press, and rightfully so. However, the Times (helpfully) led with a feature on where Mr Jay believes the legal cross-hairs should be aiming next…

“One possible way forward is to seek by statutory provision to bring ISPs within the scope of publishers for the purposes of the law of defamation, even if provision would need to be made for resultant claims to be served out of the jurisdiction.”

The Current Problem

It is pretty obvious that the Internet is a place where people like to talk. We blog, tweet and post our opinions incessantly and, unless you are (although not necessarily both) interesting or famous, most of the time, people rarely pay much attention.

Attention is often something given to those individuals who publish defamatory comments: a false statement (whether negligently or maliciously) identifying an individual and causing them loss in their trade or that would make a reasonable person think less of them (i.e. exposing them to hate, disgrace, ridicule, or damaging their reputation, causing them to be shunned, or the like).

Bringing this principle into the online realm has several issues; not necessarily in terms of proving defamation, but rather identifying the person who made the statement in the first place. The traditional print publishers are still publishers online and a libelous article remains libelous whether in print or online. Luckily, the publisher’s name tends to be plastered all over their site, so identifying the publisher is easy in that instance. Not so when it comes to forums, blogs and social media. Simply put, not being able identify the author or publisher means that you cannot bring a claim.

Service Providers

The definition of service providers is as important as the role they play in defamation issues. For now, to give a picture of the current state of affairs, we will stick to the meaning of an entity that supplies ‘any service… by means of electronic equipment for the processing… and storage of data at the individual request of a service recipient’ – or, commonly, a web host.

The host of a site becomes involved in defamation issues simply because it is easy. When you cannot find the nasty person hiding behind a (non)hilarious pseudonym, the operator of the site is a good alternative to remove the material.

Legally, a host is not liable for any wrong-doing as long as they do not know what is being hosted (which is presumed in law). Luckily for victims, once a host is made aware of the defamatory material they will often take steps to remove it (rather than owe a duty to their customer) and if they don’t then they are breaking the law themselves. This is a very simplistic view, with plenty of facets that can be discussed, but the obvious benefits of bringing the host into the situation to victims are that:

  • It is less time-consuming to establish the identity of the host;
  • Much in the same way as a newspaper, the host is a big company and has the assets to pay for any damages if they do not comply with their obligations; and
  • There is a legal obligation for them to take action and most will do just that – meaning that offending material is removed quickly.

Full Circle

Back to Robert Jay QC’s ‘solution’. What does imposing his obligation on ISPs mean and would it work? Taking the concept of a host first, if hosts are to be seen as publishers, then presumably it can be taken that their role would be far more hands on. This would defy current laws outright since, under EU law, hosts are under no obligation to monitor the information that is stored on their servers. A more obvious issue is the practicality of hosts monitoring this stored information. In January 2013 there were 629,939,191 active websites recorded by Netcraft. Admittedly, this is a worldwide count, but it does demonstrate the enormity of the problem – just how on earth are service providers supposed to monitor the ever-changing material their customers publish? The time, resources and expense that would need to be dedicated to this would be astronomical.

There can be a wider view of an ISP (akin to that described in the Digital Economy Act) as someone who provides internet access services. It seems likely that this is the kind of definition that can be implied in Mr Jay’s statement. But with the wider scope of ISPs comes the added issue of monitoring access to site content. This magnifies the problem if broadband suppliers and social media sites are taken into account.

This begs the question as to what justification there is for ISPs to invest in tools and resources to cope with what is, in law, not their responsibility.

What is more alarming is the concept of giving victims an opportunity to pursue ISPs as a presentable alternative to the actual originator of any defamatory material. If an ISP can do something to assist and prevent illegal activity then they should. But this is an avenue that is readily available now. What is not readily available is an avenue for victims to be easily compensated for their hardship and loss, which can only really be put down to a veil of anonymity that the internet can provide.

To target ISPs in this way is unfair and skews the concept of what is just – ISPs are bystanders. If you are pushed into a lake by someone you cannot see, you cannot then turn to a bystander and make them pay for your suit to be dry-cleaned.

Mr Jay did, it must be noted, recognise that LJ Leveson was wise to avoid this topic in his report. It follows then that Mr Jay’s comments are inherently unwise and ultimately the notion he presents is flawed. There was no detail about how this proposal would work, which is unwise in itself, but this does mean that any criticism of the proposal wanes to a degree given it’s minimalistic nature and lack of presented rationale. While comments of this kind should be criticised for that very reason alone, it is left to him to give more details as to how such a proposal would work in practice to lower the raised eyebrows of all ISPs.

That said, my thanks do go to him for contributing a wonderful hornet’s nest metaphor to the story.