Did UK Gov't Already Effectively Outlaw Anonymity Online With Its New Defamation Law?

from the that's-a-problem dept

We just recently wrote about a report by the UK House of Lords that recommends ending anonymity online by requiring that any web services collect real names and information at signup, while then allowing users to use a pseudonym. The thinking, then, is that if there is a criminal act or other violation of the law, it's easier to track down who's responsible. As we noted, there are all sorts of problems with this kind of logic, including both massive chilling effects against free speech, and the simple fact that it's not nearly as hard as some technologically clueless people believe to track down online users, even if they're "anonymous." Either way, this proposal is a big problem, and EFF spoke out against the plan.

However, as Eric Goldman alerts us, it might already be too late in the UK. That's because of a little-noticed provision in the defamation law that was passed in the UK last year. As we've discussed for years, the UK has had terribly draconian defamation laws, that more or less put the burden on the accused to prove what they said wasn't defamation. This was incredibly plaintiff friendly and antagonistic to free speech. The situation was so bad that a whole campaign was mounted to finally update the UK's defamation laws, resulting in a big change that went into effect last year. Many of the new provisions of the Defamation Act 2013 were steps in the right direction, but Goldman noted one very problematic section concerning intermediary liability for defamation claims.

The law first sets up a problematic notice-and-takedown system, not unlike what we have in the US for copyright via the DMCA. As we've seen, such laws are widely abused, and Goldman expects the similar provisions of the UK defamation law will likely be abused. But, then it goes even further: if websites want to avoid liability, they have to help identify the users accused of defamation:
However, what’s really interesting about Section 5 is its bonus requirement for UGC websites to avoid defamation liability: they qualify for the act’s protection only if the defamation victim can find the user to sue him/her. The act doesn’t explicitly say what information about its users the website operator must give a defamation victim or when (and some of these requirements will be spelled out in regulations that are being developed), but to me the implication seems clear: if the website operator can’t provide authenticated identifying information about its users, the website operator will lose the act’s protection (unauthenticated information is useless to plaintiffs if falsified).
And with that, the incentives are clearly set up so that if you're a UK site, you pretty much have to do what the House of Lords is now suggesting should be required by law: obtain real name and contact info of users, if only to avoid liability from defamation lawsuits. The law has been in effect for about a year now, and it's unclear if many UK-based websites are aware of this provision, or even if it's been used. But, of course, it only takes one high-profile lawsuit to convince nearly every site that they need to start doing this as well.
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Filed Under: anonymity, defamation, notice and takedown, real names, safe harbors, uk


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  1. icon
    Duke (profile), 11 Aug 2014 @ 2:54pm

    For anyone interested, the regulations the quoted article refers to are here, and there is some guidance from the Government here. I seem to remember picking up on this whole "attacking anonymity" thing back in 2012 when the Bill was being debated, pointing out how silly it is.

    The entire section is pretty silly as well - the circumstances when it applies are pretty narrow (there are all sorts of other situations when a website operator would be immune), and the way the regulations are drafted there may be situations where an operator could remove a comment, but in order to comply with the section they would have to inform the claimant that they hadn't. The regulations were really badly drafted (with only closed, private consultation).

    That said, as far as I know very few website operators knew or cared about them - most major sites have some sort of take-down system already, and defamation claims are so rare that it isn't worth the effort of setting up the automated systems required.

    the UK has had terribly draconian defamation laws, that more or less put the burden on the accused to prove what they said wasn't defamation. This was incredibly plaintiff friendly and antagonistic to free speech. The situation was so bad that a whole campaign was mounted to finally update the UK's defamation laws, resulting in a big change that went into effect last year
    I may be biased, but I think that almost every statement here is arguably false. But that's another story.

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