Politics & Society

Trolls and libel reform

The pile-up of the news agenda led to something quite odd this week. On Monday, Frank Zimmerman was given a suspended jail sentence for sending abusive, threatening emails to MP Louise Mensch among others.

On Tuesday, the defamation bill had its second reading in parliament.

Somehow, the two issues were treated as one.

The cause of the apparent confusion was clause 5 of the defamation bill, which many represented as forcing Internet Service Providers to hand over details of anonymous “trolls”. This despite the fact that, as Labour’s Sadiq Khan pointed out in the Commons debate, Clause 5 specifically relates to libel and not general cases. Julian Huppert, the Liberal Democrat MP, stressed that any steps concerning ISPs and anonymous posts should be voluntary (a concern shared by Index). The guidelines on these steps have not yet appeared, quite probably because they have not been drafted yet.

The term troll seems now to mean “anyone saying anything unpleasant on the internet”. But that simply isn’t correct. Trolling is the deliberate use of inflammatory language in order to provoke a reaction on a message board, or, increasingly, on a social media network. Sending emails to someone threatening to kill their children (which is what Frank Zimmerman did) is not trolling. Nor is it defamation. It is harassment, and already illegal under Section 127 of the Communications Act 2003 — a law that has its problems, as Paul Chambers of the Twitter Joke Trial will tell you — but is designed for this sort of thing.

Trolling is an issue on the web, as is bullying and harassment. But to conflate either with the matter of libel reform is to seriously confuse the issues.

Update 13/06/12 : The Commons debate on the defamation bill is online now, and worth watching, if only to see how so many issues got thrown into the mix that had absolutely nothing to do with libel. The tone was set by the Democratic Unionist Party’s Ian Paisley Jr, Conservative Nadine Dorries and Labour MP Steve Rotheram, who brought not just what they perceived as “trolling” into the mix, but also, in Dorries case, even alleged copycat suicide groups. Rotheram, bafflingly, warned the house of “professional trolls” learning their trade at “troll academy” (no, me neither).

There’s something about the web that brings out an extraordinary level of somethingmustbedonery in a certain type of politician. As has been remarked on this blog many times, the knowledge that it is possible to shut down or block a website or web page easily seems to make some people think that it is also desirable, and a simple solution that does not seem to carry any of the qualms that, say, supressing the publication of a book would. This view covers not just the illegal but also the merely unpleasant.

Watch the debate here

You can also read Index’s liveblog on the debate here

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  1. Posted 13Jun12 at 3:35 pm | Permalink

    The debate reading was interesting, if only for the lack of understanding of the issues by the MPs present. Only a few seemed to grasp the realities of the difficulties caused by the plethora of defamation cases originating from the internet.

    One point that was overworked was that of Libel Tourism. As Benjamin Pell (one of the foremost experts on libel cases heard at the High Court) points out, there have been extremely few libel tourism cases in the past few years, as the judges are aware of them and tend to reject them if the connection to the UK is tenous at best. Of course, the most prominent case was that of which dates back to 2005 and it did bring the English & Welsh courts into disrepute in the rest of the world, by forcing certain American States to legistlate against enforcement of judgments. However, libel tourism is not the greatest problem facing defamation law. I’m afraid that this is reserved for the internet.

    The internet allows just about anyone to publish defamatory statements about others and to do so behind the anonymity of a psudoname or nickname. The new defamation bill seeks to prevent anonymous defamation, by allowing the websites to hand over the contact details of the 3rd party, so that the victim can then request that the defamatory material is removed.

    There are several problems which the Bill does not address:

    a). The contact details held by the website may not be correct. Many websites do not verify the names and addresses of their users. So the victim could end up receiving an address such as Micky Mouse, 1 High Street, London, NW1 1AA, which is totally useless.

    b) Even if the website verifies the email address (by sending an acknoweledgement email), this address could be to a web-email host such as Hotmail or Yahoo, which can be created by anyone and has no connection to the true identity of the 3rd party.

    c) Even if the email address is correct, the 3rd party may not respond to the victim’s correspondence (by email or letter) whilst the damaging and untrue defamation remains on the website, visible to all and continuing to injure the victim’s reputation. There needs to be a definitive time limit by which the 3rd party must respond, otherwise the defamatory post is removed.

    d) If the real address or email addresses are fake, then the only means of finding the 3rd party are through the IP address. Not all websites capture the IP address. If the website does not capture it, then they cannot then rely on the defence under clause 5 that they supplied all the details necessary to contact the 3rd party.

    e) Even if the website captures the IP address (and it is possible to use an IP proxy which masks the true IP address of the 3rd party) then the victim would have to obtain a Norwich Pharmacal disclosure order from the High Court to force the ISP (such as BT or Virgin etc) to disclose the identity of the IP user. The problem is that some ISPs only retain the IP data for 6 months and use dynamic Ips. So the IP that a person uses to create a user identity on a website, could be different to the IP used to publish the defamatory remark. Worse than that, if the 3rd party creates their user name at an internet cafe and then uses a different internet cafe to publish the defamatory material, then even the Ip number would not help the victim, as it would resolve back to the internet cafe, not the person responsible for the defamatory post.

    f) Another problem is that the Norwich Pharmacal disclosure order could cost the victim as much as £5,000 or more in legal fees – even if they do all the legal work themselves. Under the Totalise v Motley Fool authority, the ISP supplying the identity of the 3rd party is entitled to their legal costs, as well as the costs of extracting the data about the 3rd party. The problem is that most ISPs will send legal counsel to the Pharmacal hearing, firstly to ensure that the post is defamatory (the Lightman Test from Mitsui Ltd v Lexon Petroleum UK Ltd) and secondly that the information sought is capable of being provided. So long as the ISP does not oppose the Pharmacal request, they are entitled to the costs of representation. This could amount to anything over £5,000 or a lot more. As a result, even if the true identity of the 3rd party is disclosed and they are contacted, they are very unlikely to settle a claim which includes right from the start the costs of the Pharmacal application. So the claim will inevitably end up in protracted litigation, costing both sides a great deal and clogging up the courts.

    g) Jacob Rees-Mogg pointed at another problem, that Judges cannot be trusted to get things right. I know this from bitter experience, as does Simon Singh, Tom Bower and Ben Pell, all of whom were victims of Mr Justice Eady’s rough justice. There are very few specialist defamation judges. Unfortunately, they do not always get it right. Simon Singh ended up with a massive legal bill (which should not have happened) because Eady J made a decision that Simon was making a statement of fact about the BCA treatments, instead of the opinion that he was actually writing. Thankfully, he was able to turn to the Court of Appeal. However, it took 2 years and hundreds of thousands in legal fees to eventually obtain a judgment which caused the BCA to remove their ridiculous claim. In the case of Tom Bower, Eady J made two decisions during the jury trial which meant Tom Bower had to go to the Court of Appeal during the trial, to get the Eady decision overturned and allow the jury to hear information that was extremely relevant to the defence. The Court of Appeal said that Eady J had almost caused a miscarriage of justice because of his decision. In my own claims, some of which are still outstanding 5 years after the original defamations, Eady J made contradictory statements in his judgment, admitted that he’d made a mistake and then issued a 2nd judgment after the 1st, which prejudiced the appeal which he’d already allowed. This is now a matter before ECHR.
    The new bill does away with the right to jury trials. But if we cannot trust a judge to get it right, we must have that right to present the evidence to a jury, who will see the evidence for what it is an not be influenced unfairly by one side or the other.

    h) The emphasis of the new bill is to increase the protection for defendants by affording them new defences, without protecting the honest man in the street, who cannot afford to pay for lawyers to show significant harm to his reputation before bringing an action, let alone all the steps needed to find the 3rd party that is attacking him. Access to justice is inherent in Article 6 of the Human Rights protocols. However, if the individual is of modest means, they cannot afford to spend the many thousands required to seek justice. Which is why we need a simplified ‘lower court’ track to allow victims to seek justice with minimal cost. Many 3rd parties will agree that they posted defamatory material in the heat of the moment. They may not have considered the damage that their statements would do to the victim of their attack. Nevertheless, they are less likely to apologise and withdraw their statement if doing so means that they would also have to accept a legal bill in the thousands. The old phrase, ‘speak in haste, repent at leisure’ comes to mind. If the identity of 3rd parties can be verified by the websites (even by using a credit/debit card) to verify true identity, then the victim could negotiate or mediate a dispute away with the minimum of fuss, a handshake and the settlement of minor costs. However, if the 3rd party seeks to avoid their responsibilities and they did act maliciously in making untrue statements intended to cause harm, then the victims actions should allow them to claim all their legal costs back from the 3rd party, so they are not out of pocket for the harm caused. Likewise, if the 3rd party had good reason to make the statement, but the ‘victim’ was attempting to silence free speech, then the courts would have a chance to strike out the claim at the mediation stage, before it costs either side any serious damage. If the ‘victim’ continues their illconceived claim, then they do so knowing that they would open themselves to a cost liability further down the line. Allowing claims to be heard in the lower courts by a trained mediator is one method which was proposed by some eminent defamation judges as a way of reducing the number of cases that make their way to the High Court. Leaving only the most serious of claims to go there.

    I could go on and on about the mistakes in the draft legislation, but it appears to me that they make it harder and harder for the true victims of defamatory posts or organised attacks, to seek justice, without having to resort to harassment law instead of defamation actions. Unfortunately, harassment law does not adequately compensate the victims of defamation. If the present proposed bill is enacted, then I can only forsee that victims of defamation will either be detered from seeking justice, denied from seeking justice or end up seeking justice from ECHR instead of the English & Welsh courts. It’s a pity that the drafters of the bill did not consult with the many litigants involved in internet defamation cases. Thankfully, Simon Singh did make an input which should prevent cases similar to his ever reaching the courts. However, the increasing number internet attacks (by trolls or whatever you want to call them) has arisen because the courts made judgments which allowed them. Allowed them by stating that it was not defamatory so long as the attack contained vulgar abuse, even though another decision agreed that if there is enough vulgar abuse, this could amount to being defamatory, on the principle that if you fling enough mud at a wall, then some of it will stick.

    We have to protect people who’ve been the victim of untrue defamatory allegations and make it possible for them to seek justice without bankrupting them. The present proposed bill would deny justice to the innocent and protect the guilty.

  2. Posted 16Jul12 at 4:25 pm | Permalink
    Michelle Wild

    Why bother having any laws on libel/slander/harassment in fact anything when only the very rich can pursue or indeed obtain justice. Smear campaigns are alive and well in the Home Office and are never addressed. If you are a higher grade officer doing the abusing and destroying of a lower grade officer’s name and careers you will be believed and they’ll even throw in Treasury Solicitors and a barrister to complete the whitewash. FACT.

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3 Trackbacks

  1. [...] The Defamation Bill 2012 received renewed attention this week ahead of its second reading in the House of Commons, particularly over Clause 5 which concerns a defence for operators of websites.  Media organisations reported this aspect in the context of other legal activity around internet “trolls“, in rather a muddled fashion – as Francis Davey points out here, and Padraig Reidy noted here. [...]

  2. [...] The legal and ethical practice around online media is fast-moving but little has been recommended in terms of its management and protection for users and consumers. There has been some noisy discussion around “trolls” (news reports wrongly conflated entirely different legal cases with the provisions of the Defamation Bill; as set out by Francis Davey here; Padraig Reidy here). [...]

  3. [...] The legal and ethical practice around online media is fast-moving but little has been recommended in terms of its management and protection for users and consumers. There has been some noisy discussion around “trolls” (news reports wrongly conflated entirely different legal cases with the provisions of the Defamation Bill; as set out by Francis Davey here; Padraig Reidy here). [...]