The Law Commission, the official law reform body in England and Wales, has produced a scoping study on the law of defamation and the internet. It addressed four areas of potential concern:
Liability of internet service providers for other people's material
The limitation period for online archives
Cross-border jurisdiction and applicable law issues
Contempt of court
The Law Commission's study, while at this stage only a preliminary investigation, is bound to stir up the debate about ISP liability in particular. As an independent and authoritative body, its report should command respect as a non-partisan contribution to the field.
The Commission highlighted the concern that current defamation law places ISPs under pressure to remove material without considering whether it is in the public interest or true. The Commission pointed out a possible conflict between the pressure to remove material, even if true, and the right of freedom of expression under the European Convention on Human Rights. The Commission stated that it was important to consider whether there are alternative ways of protecting the reputation of others without encouraging the removal of true material.
Although the Law Commission did not consider other areas such as copyright, its conclusions for defamation are of general application as regards the danger posed by a notice and takedown regime to freedom of expression and legitimate content.
As to online archives, the current English law for defamation is that each download from an online archive creates a new cause of action, so that the publisher remains exposed to libel actions indefinitely. The Commission recommended a review of this rule as potentially unfair to defendants.
For jurisdiction and applicable law, the Commission recognised the uncertainties for publishers caused by the cross-border availability of online publications. The Commission commented that the internal market provisions of the Electronic Commerce Directive intended to create greater legal certainty had in fact added new ambiguities. However, since any solution would require both an international treaty and greater harmonisation of the substantive law of defamation, the Commission did not think that the problem could be solved within the short to medium term and did not recommend reform at present.
For contempt of court, the concern of publishers was that articles on their websites might be held to be in contempt of court, even though they were unaware of the trial. However, the Commission though that this was a theoretical risk and not a priority area for reform.
The Law Commission's report is now to be considered by the Lord Chancellor's Department.