Much has been made in the press this about the new proposals in the Defamation Bill and the fact that ISP’s, under new government proposals, will be required to provide victims with the identity of offenders who post abusive and defamatory online messages about them. This in itself is not technically true.
The draft defamation bill makes a big deal about the new procedure that ISP’s will have to follow before alleged online material is to be taken down. The bill describes the differentiation between identifiable material, by means of authorship and unidentifiable material i.e. an ISP, following a complaint made on ‘identifiable material’ must immediately place a notice against the material stating that it is subject to challenge. Under the new procedure an ISP must immediately remove alleged defamatory material from an unidentifiable author. This may seem great on paper, but let’s think about it practically. A person goes online as ‘John Spyrou’, ‘Rupinder Bains, ‘Lord Alan Sugar’ or ‘Donald Trump’, they are likely not the real person, however does this count as identifiable material – merely because there is a name next to it? The draft defamation bill does not make this clear. And therefore if it is unclear how can it be enforced. Answer – it cannot be.
Also any requirement on ISP’s to identify internet trolls or offending posters by giving details of their electronic signature, without a specific Court Order, is questionable. Any such requirement is arguably incompatible with the Data Protection Act, Electronic Commerce (EC Directive) Regulations 2002 not to mention basic human rights such as right to privacy and freedom of speech.
Furthermore, internet trolling does not always amount to defamation and the term is usually reserved for those perpetrating harassment on innocent internet users. The government appears to have been caught up in the media hype surrounding trolling and so is using the word for all and sundry. So how the government plans to deal with the similarities/discrepancies between the trolls and outright defamers is again unclear.
I will save the jurisdictional issues concerning US corporations like Google and Facebook for another time.
In summary, the material bandied in the press is slightly premature and should be treated with caution. For now, to identify online offenders the Court is who we should ask for help.
Pinder Reaux & Associates