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The introduction of a new defamation law by Justice Secretary Ken Clarke will make it even harder to deal with cyberbullying
With an astonishing amount of ‘spin’ or simply misguided thinking, the UK coalition government is proposing a new law that will result in the UK becoming a safe haven for internet trolls, cyberbullies and harassment. Here’s a typical news report which follows the Government spun line that this new law will improve the lives of victims of trolls and cyberbullying.
The Defamation Bill will actually makes it even harder, and probably impossible, for the ordinary individual in the UK to deal with stalking, harassment, cyberbullying and online trolling.
The news headlines are reporting the government spun line that anonymity will be removed and identities of cyberbullies exposed.
But in fact the new law does not offer anything positive:
- Firstly, it’s already possible for the cyberbully’s identity to be released – all Internet Service Providers and Hosting Providers (ISPs) already release this information if a police force asks them to, or a high court injunction is obtained.
- Secondly in 90% of cyberbullying cases, the victim already knows how the perpetrator is.
- Even if the victim obtains evidence proving who the cyberbully is – will they have the tens of thousands of pounds required to launch a civil defamation action?
What is not being reported
The bill also includes a clause which will provide ISPs with a defense against being the publisher of defamatory or libelous material. In other words, you can no longer sue, or threaten to sue, the ISP – the host of the website – in order to force them to remove the material. What does this mean? At the moment, if anything defamatory is published on a UK hosted website, it is relatively easy to remove that material. A well-drafted letter from us, or a solicitor pointing out that the material breaks the site Terms of Service (TOS) and could also render the ISP liable for libel damages since they have ‘published‘ the content, results in content being removed in 80-90% of cases. And so it should – that’s fair. If offensive or defamatory material has been published, the victim should have recourse to remove it. Ken Clarke’s new law takes away the victim’s ability to remove the content in this way.
Also, by introducing new ‘civil’ provision in law for cyberbullying and stalking what the Government is actually doing is stating officially that the Police don’t need to bother with cyberbullying and trolling. Currently, some Police forces will prosecute cyberbullying – such as these cases; others will claim it is a ‘civil matter’, and some will be downright lazy and claim: “We don’t police the internet.”
Flawed one year limit
The Justice Secretary has also proposed a “one-year time limit” on cases for libel and defamation being brought, to “stop old articles triggering new libel claims.” The initial draft focuses on the first publication of the content. It makes no provision beyond one year for reproduction – which may well be malicious. What a disaster that will be. Now all the cyberbully or troll has to do is post any lies with a date more than one-year-old, or link to something nasty they posted over a year ago, and no action can be brought against them. Also, it will mean that defamation on archive sites that is more than a year old, such as the Wayback machine or even Wikipedia, could not be removed under this new law. At the moment, if the victim can successfully remove the ‘original’ article, then all copies can be removed on the same basis. Now that is in question.
There is no need for this ‘new’ law regarding trolling
There is plenty of existing statue provision for prosecuting cyber stalking and online bullying as a criminal offence:
The Malicious Communications Act 1988, s. 1 provides that:
(1) Any person who sends to another person—
• (a) a letter, electronic communication or article of any description which conveys—
(i) a message which is indecent or grossly offensive; (ii) a threat; or (iii) information which is false and known or believed to be false by the sender; or
• (b) any article or electronic communication which is, in whole or part, of an indecent
or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should… cause distress or anxiety to the recipient.
The Protection from Harassment Act 1997 states that it is unlawful to cause harassment, alarm or distress by a course of conduct and that ‘A person must not pursue a course of conduct, which:
• amounts to harassment of another
• he knows, or ought to know, amounts to harassment of the other.’
The Communications Act 2003 section 127 state that:
(1) A person is guilty of an offence if he-
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offense if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he-
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offense under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Subsections (1) and (2) do not apply to anything done in the course of providing a program service (within the meaning of the Broadcasting Act 1990 (c. 42)).
No more criminal prosecutions under this new law. Will trolls will get off scot-free?
Since this newer legislation will supersede anything which came before it, all the avenues for criminal prosecution will effectively dry up.
What the Government are doing is proposing a change that means ISPs would be able to ignore takedown notices. No longer would they face libel liabilities for defamatory content. This would bring UK internet law in line with that of the USA. It is reasonable to assume that if passed, this law would result in UK internet defamation, cyberbullying and stalking law, reflecting the dire situation America has been in for the last decade, where politicians at state level are now desperately trying to push for criminal law provision to outlaw online bullying.
In short, if this law is passed:
- The Police will never again prosecute cyberbullying in the UK as a crime – they will tell the victim it is a ‘civil matter’ and that they will have to spend lots of money on lawyers.
- If a victim asks the ISP to remove the cyberbullying or defamation the ISP will ignore any requests to remove offensive material.
- If a victim wants the material removed they will have to spend £50,000 obtaining a High Court injunction, or employ the services of a Reputation Management expert to “bury” the content in search engines.
There will be only three winners if this law is passed:
- UK ISPs – the UK will become a safe-haven for cyberbullying and a first choice location for trolling and harassment websites. Website sales for ‘hate’ sites will boom.
- The Police – time and money will be saved now they don’t have to bother investigating cyberbullying. It will be back to the days of “If you don’t like it – don’t read it’ advice.
- The troll, cyberbully, harasser and defamer in the UK will become all but untouchable.
This new law is not the answer to prevent cyberbullying and trolling
The UK doesn’t need a new law. It needs the Government to kick the police forces up the backside and make them do their job. Cyberbullying injures people. It’s a crime. Just because DI don’t do cyberbullying Copper cannot be bothered, and would rather be on high profile murder cases, shouldn’t mean victims should suffer. Instead, the Government seems hell-bent on reinforcing Police laziness instead of insisting on better professional standards.
This new law is not progress, is it?