UK Defamation Act 2013(legislation.gov.uk)
legislation.gov.uk
UK Defamation Act 2013
http://www.legislation.gov.uk/ukpga/2013/26/contents
10 comments
Legal risk to UK based forums etc has always been high.
This article gives a nice (but now outdated) guide to what those risk ara and how to handle them [1].
It concluded that you were at less risk if you did not moderate, because if you did, and failed to cull posts that were illegal (hate speech is illegal in the UK, also yuckier things), you were less likely to get in trouble.
Effectively, this forces a site to moderate, which means they become exposed if someone posts a nasty and they don't remove it within a reasonable amount of time.
I was troubled by this when I set up a forum for a largish youth theater. An organization like that in the UK is very into child protection (criminal record checks all round), and they worried that they would be responsible if the kids bullied each other or posted inappropriate photos. We really didn't want to spend time moderating.
The most surprising things are criminal or at least civil offenses in the UK. No 1st amendment here.
In practice, we'd probably just run a private forum like that anyway, but if we were sensible, I guess now we'd not do it.
[1]http://www.out-law.com/page-7841
This article gives a nice (but now outdated) guide to what those risk ara and how to handle them [1].
It concluded that you were at less risk if you did not moderate, because if you did, and failed to cull posts that were illegal (hate speech is illegal in the UK, also yuckier things), you were less likely to get in trouble.
Effectively, this forces a site to moderate, which means they become exposed if someone posts a nasty and they don't remove it within a reasonable amount of time.
I was troubled by this when I set up a forum for a largish youth theater. An organization like that in the UK is very into child protection (criminal record checks all round), and they worried that they would be responsible if the kids bullied each other or posted inappropriate photos. We really didn't want to spend time moderating.
The most surprising things are criminal or at least civil offenses in the UK. No 1st amendment here.
In practice, we'd probably just run a private forum like that anyway, but if we were sensible, I guess now we'd not do it.
[1]http://www.out-law.com/page-7841
> Effectively, this forces a site to moderate
That was not my reading of it.
In fact, were you to moderate it then you would have no defence under the EU E-Commerce Act.
I do run unmoderated forums in the UK, and have in the past been on the receiving end of legal action regarding some user generated content.
My reading of this and other laws that work in this area (user generated content and liability thereof) is that it is best to not moderate at all, to have no editorial process that intervenes, but to have clear policy and mechanisms to allow notifications to be received. And ultimately, to record and act on those notifications.
In terms of moderation, one might argue that it is a form of reactive moderation. But I would not argue that, as there is no expression of an editorial policy in handling notifications based on legal merit and only intervening in site content when notified.
That was not my reading of it.
In fact, were you to moderate it then you would have no defence under the EU E-Commerce Act.
I do run unmoderated forums in the UK, and have in the past been on the receiving end of legal action regarding some user generated content.
My reading of this and other laws that work in this area (user generated content and liability thereof) is that it is best to not moderate at all, to have no editorial process that intervenes, but to have clear policy and mechanisms to allow notifications to be received. And ultimately, to record and act on those notifications.
In terms of moderation, one might argue that it is a form of reactive moderation. But I would not argue that, as there is no expression of an editorial policy in handling notifications based on legal merit and only intervening in site content when notified.
Thanks. That is really useful.
Luckily, I've never faced legal action for... anything really, so it's good to have some insight here from someone who has.
Luckily, I've never faced legal action for... anything really, so it's good to have some insight here from someone who has.
I've updated my bookshelf to include Simon Singh's "Trick or Treatment" which sparked his involvement in libel reform when he was sued by the Chiropractor's association.
Given the impact on his life for the past few years he deserves recompense. Plus his earlier works were excellent.
Given the impact on his life for the past few years he deserves recompense. Plus his earlier works were excellent.
Recently a customer posted a very bad review of my app on a public app store. They called me personally a liar, claimed I took weeks to respond to email, that my service lost their business sales and they paid for a service I didn't provide.
This review caused my established app of nearly two years, more than 90% positive reviews and decent revenues to be pulled from the app store for two days.
I attempted to reach out to the customer to see what I had done wrong, but no reply on any channel (email/twitter/phone). I just wanted to understand what had made them so mad and to rectify it or at least stop it happening again.
With my app reinstated in the app store the worst was over, but still that stain of a very bad review. Thankfully I have great customers who love what I do and it's now been drowned further down. However my installs were substantially down and revenue somewhat.
As both the customer & my company are in England I considered legal action under our libel laws. But after speaking with a lawyer it was clear this would cost me tens of thousands of pounds and the process was far from straightforward for this kind of action. It would need to go to the High Court for judgement.
Now that publicly publishing statements about individuals or businesses to a wide audience is accessible by anyone for no money we need a more accessible legal system to stop harmful and untrue statements floating around for perpetuity on the web.
In my layman's reading this bill seems to edge it forward to cope with the difficulties of 'publishing' user generated content, but there's nothing for victims of untrue statements here. We need this moved forward too.
This review caused my established app of nearly two years, more than 90% positive reviews and decent revenues to be pulled from the app store for two days.
I attempted to reach out to the customer to see what I had done wrong, but no reply on any channel (email/twitter/phone). I just wanted to understand what had made them so mad and to rectify it or at least stop it happening again.
With my app reinstated in the app store the worst was over, but still that stain of a very bad review. Thankfully I have great customers who love what I do and it's now been drowned further down. However my installs were substantially down and revenue somewhat.
As both the customer & my company are in England I considered legal action under our libel laws. But after speaking with a lawyer it was clear this would cost me tens of thousands of pounds and the process was far from straightforward for this kind of action. It would need to go to the High Court for judgement.
Now that publicly publishing statements about individuals or businesses to a wide audience is accessible by anyone for no money we need a more accessible legal system to stop harmful and untrue statements floating around for perpetuity on the web.
In my layman's reading this bill seems to edge it forward to cope with the difficulties of 'publishing' user generated content, but there's nothing for victims of untrue statements here. We need this moved forward too.
Getting unfair reviews sucks, but can you imagine the mess if companies could go after individuals or organizations for giving them bad reviews?
Regardless it shouldn't be law. Let people opt-in or out. For example a review site might require the reviewers to agree that they can be sued for making false statements, or vice versa, that the reviews are not guaranteed to be accurate and reviewers can say whatever they want. I know this is not a perfect solution, but censorship is easily abused and seems absolutely unacceptable to me.
People have always said libelous things to each other. But until recently it was just spoken words to each other. Now that much of our communication is in text or available publicly, it's so much easier to target individuals or prove defamation. I suspect that almost everyone is guilty of doing it. The laws were established for print media where there was an expectation that it was supposed to be reliable and truthful. Not for private conversations or between anonymous interneters where that expectation doesn't exist in the first place.
For the most part companies don't abuse the laws because they don't want to get bad PR, but there are always people that don't care about pr and have an incentive to abuse it.
Regardless it shouldn't be law. Let people opt-in or out. For example a review site might require the reviewers to agree that they can be sued for making false statements, or vice versa, that the reviews are not guaranteed to be accurate and reviewers can say whatever they want. I know this is not a perfect solution, but censorship is easily abused and seems absolutely unacceptable to me.
People have always said libelous things to each other. But until recently it was just spoken words to each other. Now that much of our communication is in text or available publicly, it's so much easier to target individuals or prove defamation. I suspect that almost everyone is guilty of doing it. The laws were established for print media where there was an expectation that it was supposed to be reliable and truthful. Not for private conversations or between anonymous interneters where that expectation doesn't exist in the first place.
For the most part companies don't abuse the laws because they don't want to get bad PR, but there are always people that don't care about pr and have an incentive to abuse it.
To add to the point. IMHO this difamation laws are a patch to problem of people beliving blindly what they read. In times where the press was the most popular medium and few voices could be heard these laws had a reason of existence. In modern times, at least for now, everybody can speak on the internet and defend himself having the same reach as his attacker.
TL;DR Is someone difamatig you or your bussines? Post reliable evidence on the internet that shows what is what you actualy do and what other people think about it.
TL;DR Is someone difamatig you or your bussines? Post reliable evidence on the internet that shows what is what you actualy do and what other people think about it.
I don't see how a company could meet a reasonable burden of proof in this regard. Not without altering the requirement to the point where they could go after anyone for anything they happened to say that the company didn't like. - There's enough trouble with legal threats in that regard already.
Still, I'm sorry that happened to you :(
Still, I'm sorry that happened to you :(
I despise the term "defamation". It's almost always used in the context of propagating censorship. Libel itself is troubling. Unless you're telling disparaging and outright lies about somebody in an absolute manner, the legal system should be nowhere near your freedom of speech.
> Unless you're telling disparaging and outright lies about somebody in an absolute manner ...
That... seems like a pretty accurate, if brief, summary of when defamation is actionable under this Act. (Disparaging - yup, s.1; outright lies - yup, s.2; etc.). Do you come to bury the act or to praise it?
That... seems like a pretty accurate, if brief, summary of when defamation is actionable under this Act. (Disparaging - yup, s.1; outright lies - yup, s.2; etc.). Do you come to bury the act or to praise it?
This defamation act makes a lot of sense. Freedom of speech is and should be limited, even in the USA. You can't just say anything you please and expect nothing to come of you. Write a letter with "Chocolate BOMB" to an airport and see what happens.
This shows the limits on speech freedom in the USA http://en.wikipedia.org/wiki/United_States_free_speech_excep...
In the UK we also enjoy the fact the politicians can't just outright lie in their Manifesto about other candidates or the current government. If/when they do, action is taken to correct or (when maliciously undertaken) to disqualify that person from running for public office.
This shows the limits on speech freedom in the USA http://en.wikipedia.org/wiki/United_States_free_speech_excep...
In the UK we also enjoy the fact the politicians can't just outright lie in their Manifesto about other candidates or the current government. If/when they do, action is taken to correct or (when maliciously undertaken) to disqualify that person from running for public office.
It's a bit more limited than that: during election campaigns (which last a few weeks in the UK) it's illegal for anyone to lie about other candidates' personal character with the intention of affecting the vote.
e.g. s106 Representation of the People Act 1983 ("False statements as to candidates.") http://www.legislation.gov.uk/ukpga/1983/2/section/106
Everything else is fair game and "personal character" is narrowly construed — it's about "the man beneath the politician" as one court put it.
There's also no legal bar to lying about your intentions in your manifesto, despite a few attempts to persuade the courts to create one.
This from the High Court of England and Wales — "Can a promise of this kind give rise to an enforceable legitimate expectation? Even if we had accepted that the relevant ministerial statements had the effect of a promise to hold a referendum in respect of the Lisbon Treaty, such a promise would not in our view give rise to a legitimate expectation enforceable in public law, such that the courts could intervene to prevent the expectation being defeated by a change of mind concerning the holding of a referendum. The subject-matter, nature and context of a promise of this kind place it in the realm of politics, not of the courts, and the question whether the government should be held to such a promise is a political rather than a legal matter." (Wheeler v PM, a case about whether the PM was legally obliged by a manifesto commitment to hold a referendum on an EU treaty http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/...)
(IANAL).
e.g. s106 Representation of the People Act 1983 ("False statements as to candidates.") http://www.legislation.gov.uk/ukpga/1983/2/section/106
Everything else is fair game and "personal character" is narrowly construed — it's about "the man beneath the politician" as one court put it.
There's also no legal bar to lying about your intentions in your manifesto, despite a few attempts to persuade the courts to create one.
This from the High Court of England and Wales — "Can a promise of this kind give rise to an enforceable legitimate expectation? Even if we had accepted that the relevant ministerial statements had the effect of a promise to hold a referendum in respect of the Lisbon Treaty, such a promise would not in our view give rise to a legitimate expectation enforceable in public law, such that the courts could intervene to prevent the expectation being defeated by a change of mind concerning the holding of a referendum. The subject-matter, nature and context of a promise of this kind place it in the realm of politics, not of the courts, and the question whether the government should be held to such a promise is a political rather than a legal matter." (Wheeler v PM, a case about whether the PM was legally obliged by a manifesto commitment to hold a referendum on an EU treaty http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/...)
(IANAL).
The UK's lack of free speech is farcical... people doing jail time for offensive tweets, etc. And as for it protecting the truth, libel laws have been used to keep reporting the facts of corporate poluting, etc., out of the press.
Freedom of speech is and should be limited, even in the USA
It's pretty creepy to see some on HN so adamant about limiting free speech.
It's pretty creepy to see some on HN so adamant about limiting free speech.
Does this shut down "libel tourism"?
9(c). A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is 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.
9(c). A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is 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.
That is the idea. We all hope that it works.
So I'm thinking that one could start a "journal of obscene and salacious comments, potentially defamatory remarks, flames &c." in which we review statements academically for their values - offensiveness and such. The Journal will of course be electronic enabling any person to submit for review a remark of their choosing.
Once submitted Section 6(5) gives anyone the right to "the publication of a fair and accurate copy of, extract from or summary of the statement or assessment" and this duplication of the a reviewed submission to our journal receives privilege.
S.6(6) obviously stands against the actions of the Journal but proving malice in a statement seems difficult especially when it has been submitted for academic reasons.
Or maybe not ...
Once submitted Section 6(5) gives anyone the right to "the publication of a fair and accurate copy of, extract from or summary of the statement or assessment" and this duplication of the a reviewed submission to our journal receives privilege.
S.6(6) obviously stands against the actions of the Journal but proving malice in a statement seems difficult especially when it has been submitted for academic reasons.
Or maybe not ...
Your journal would only be academic if a judge says it is academic. It doesn't matter that you call it academic; I doubt any judge would agree. So you would not have any defence.
>It doesn't matter that you call it academic; I doubt any judge would agree. //
It does rather hinge on the meaning of the term. As I understand it judges can be lead by caselaw, general definitions in other acts or if not so well defined the normal common usage meaning. The term "academic" seems unlikely to be well defined in legislation and the common usage is vague. Similarly I suspect "journal" has a pretty broad definition. Is the "Journal of Weird-Ass Shit" an academic journal (http://tuvalu.santafe.edu/~moore/jwas.html)?
There might be a definition in the tax code somewhere?
A judge is there to apply the law, not to rewrite it if it's not precise enough to gain a conviction. The judge is there to find how the law _as written_ determines the legality of an act.
Do you not think vernacular English language usage in conflict and socio-political impact of uncensored speech is a legitimate area of research?
It does rather hinge on the meaning of the term. As I understand it judges can be lead by caselaw, general definitions in other acts or if not so well defined the normal common usage meaning. The term "academic" seems unlikely to be well defined in legislation and the common usage is vague. Similarly I suspect "journal" has a pretty broad definition. Is the "Journal of Weird-Ass Shit" an academic journal (http://tuvalu.santafe.edu/~moore/jwas.html)?
There might be a definition in the tax code somewhere?
A judge is there to apply the law, not to rewrite it if it's not precise enough to gain a conviction. The judge is there to find how the law _as written_ determines the legality of an act.
Do you not think vernacular English language usage in conflict and socio-political impact of uncensored speech is a legitimate area of research?
What are they? Idiots?
In all seriousness, I'm glad to see that stating the truth is a valid defense. But we should also remember that just because something is true, we don't have to state it verbally or commit it to paper or arrange it in electrons. I'd like to see a return to civility!
In all seriousness, I'm glad to see that stating the truth is a valid defense. But we should also remember that just because something is true, we don't have to state it verbally or commit it to paper or arrange it in electrons. I'd like to see a return to civility!
"Civility" enforced by a coercive state is no civility at all; it is the protection of the interests of the politically connected against the interests of everyone else.
Civility is wonderful, but the mechanisms available to the state are inappropriate - even "civil" court. (I don't know British law, I assume there is an equivalent to the U.S. distinction between civil and criminal law.)
The problem with the English (as opposed to British - Scotland is different) libel system was that it went out of its way to penalise free speech.
So you couldn't recover all your costs in a case, and libel barristers are some of the highest earning. Losing a case meant you could be liable for part of the other side's fees, so you are easily looking at £100k+ when fighting a case.
So it became really easy for bullying threats of a lawsuit to shut down awkward speech. Not just in England, anything "published" in England - and there the courts consistently ruled incredibly broadly. So you had all sorts of dodgy foreigners using the English libel system to crush criticism abroad.
So you couldn't recover all your costs in a case, and libel barristers are some of the highest earning. Losing a case meant you could be liable for part of the other side's fees, so you are easily looking at £100k+ when fighting a case.
So it became really easy for bullying threats of a lawsuit to shut down awkward speech. Not just in England, anything "published" in England - and there the courts consistently ruled incredibly broadly. So you had all sorts of dodgy foreigners using the English libel system to crush criticism abroad.
I should point out that the aim of this Bill is to reform existing law, so as provide increased protection for people accused of libel or slander. The existing law was very bad, as shown by cases like that of Simon Singh [1].
The Libel Reform Campaign has an initial summary assessment of the Defamation Bill [2].
From the Bill's summary [3]:
Edit: add a couple of links
The Libel Reform Campaign has an initial summary assessment of the Defamation Bill [2].
From the Bill's summary [3]:
includes a requirement for claimants to show that they have suffered serious harm before suing for defamation
removes the current presumption in favour of a jury trial
introduces a defence of "responsible publication on matters of public interest"
provides increased protection to operators of websites that host user-generated content, providing they comply with the procedure to enable the complainant to resolve disputes directly with the author of the material concerned
introduces new statutory defences of truth and honest opinion to replace the common law defences of justification. and fair comment.
Edit: add a couple of links
That summary's no longer quite accurate, there were some last-minute tweaks to strengthen the defences. In particular:
- The "responsible publication on matters of public interest" defence is now just "publication on matters of public interest", the requirement of responsibility is replaced by one that "the defendant reasonably believed that publishing the statement complained of was in the public interest". This is good - the new requirement is conceptually simpler and easier to satisfy.
- There's now another new defence: "Peer-reviewed statement in scientific or academic journal etc." are now privileged.
- The "responsible publication on matters of public interest" defence is now just "publication on matters of public interest", the requirement of responsibility is replaced by one that "the defendant reasonably believed that publishing the statement complained of was in the public interest". This is good - the new requirement is conceptually simpler and easier to satisfy.
- There's now another new defence: "Peer-reviewed statement in scientific or academic journal etc." are now privileged.
> I'm glad to see that stating the truth is a valid defense.
Truth has always been an absolute defence; the Act doesn't change anything in that regard.
(Several of the 'new' defences are just codifications or tweaks of existing defences. I think the only completely new defence is the 'peer-reviewed statement in scientific or academic journals' one).
Truth has always been an absolute defence; the Act doesn't change anything in that regard.
(Several of the 'new' defences are just codifications or tweaks of existing defences. I think the only completely new defence is the 'peer-reviewed statement in scientific or academic journals' one).
> Truth has always been an absolute defence
No, not always. In English common law truth was originally only a defense in civil libel cases. But it was possible to convict persons of criminal libel, even if the writings were proven true (since it was technically considered as being a breach of the peace as opposed to mere defamation).
http://en.wikipedia.org/wiki/Libel_Act_1843
No, not always. In English common law truth was originally only a defense in civil libel cases. But it was possible to convict persons of criminal libel, even if the writings were proven true (since it was technically considered as being a breach of the peace as opposed to mere defamation).
http://en.wikipedia.org/wiki/Libel_Act_1843
It's a obvious defence, but glad it is the first one listed. Of course what your saying isn't defamatory if it is actually true!
Civility is not as important as free expression.
To give some context to those of you that haven't been following this issue over the last few years, The Libel Reform Campaign has a great analysis of this law here: http://www.senseaboutscience.org/data/files/Libel/Libel_Refo...
TL;DR: This is a good thing for free speech.
TL;DR: This is a good thing for free speech.
Justification can be used to further prejudice and encourage the malicious gossipmongers which might be discouraged if they were required to have an honest opinion. Some people are too idiotic though to really have an opinion. Personal experience. More damage has been caused to me by deliberate defamation. It takes someone to listen to them though.
What are the rules for religion? My understanding was that the UK had special protections for criticisms of religion, so that freedom of speech was particularly constrained around (e.g.) Sam Harris or Richard Dawkins's criticisms of religious belief or practice.
Is this true or was I misinformed?
Is this true or was I misinformed?
You're probably thinking about the http://en.wikipedia.org/wiki/Racial_and_Religious_Hatred_Act... , which makes it an offence to incite racial or religious hatred. That's nothing to do with defamation law; they don't interact.
Ah, thanks.
Namely that it's a defence to show that the website operators did not make the (defamation) statement.
But, the defence is defeated if the complainant (defamed party) cannot identify the person who did defame, and then notified the website operator who then failed to respond.
Basically: If you are in the UK and you run a website, you should now change your policies to ensure that if you have user generated content you can accept and handle notifications of slander and defamation.
Not doing so may see you end up being liable for the statement.
Which was always the case under the EU E-Commerce Act, but this is now reinforced by this act.