13 June 2018
A troll is a mythological monster. A blogging troll is a modern monster. He posts inflammatory, sometimes abusive and often defamatory messages about others on the Internet. Many trolls like to hide their ugly faces behind the cloak of anonymity in order to avoid legal liability. But with changes afoot in the proposed new Defamation Bill, they may be about to be exposed. The Government has been criticised for dragging its feet and failing to bring libel law into the 21st century; old law for new technology commentators argue, does not work. But Ken Clarke has come riding to the rescue, throwing his weight behind proposals in the draft Defamation Bill which seek to walk the tightrope between chilling free speech and providing protection to the subjects of unjustified slurs in the modern Internet age. The draft Bill adopts a carrot and stick approach, allowing web hosts to side-step secondary liability for defamatory publications posted by others – provided they comply with a notice and take down procedure. Under the proposed system, where a complaint is made and the identity of the author is known, web hosts will be obliged to publish a notice of complaint next to the offending material. Where the identity of the author is unknown, the web host will be obliged to remove content unless the author agrees to identify themselves. If enacted, these new provisions would mean that web hosts are no longer expected to assess the lawfulness of the material and risk liability where an incorrect call is made. Rather, they can follow a simple procedure and sleep easy at night. And those whose reputations have been unjustifiably smeared will be able to act swiftly to ensure that readers can immediately see that the publication is contested. Those who attack behind the cloak of anonymity rarely deserve protection from exposure and it is right that the detergent of sunlight should be used to ensure that justice for the victim can be fairly and justly obtained while free speech is given the respect it deserves and is not used as a shield behind which cowards can shelter from liability. Of course, there are exceptions. And for those who justifiably argue that anonymity on the Internet can be necessary, the Bill makes provision for web hosts to refuse to take down material or expose the author if there is a justified reason for not doing so, for example to protect a whistleblower. Gone are the days when our only worries were our inky printed newspapers; today, the vast plains of the Internet are like the Wild West, a rich environment to breed damaging allegations but with the perpetrators of some dastardly defamations anonymous keyboard warriors, who are hard to track down and even harder to bring to justice. And while the Bill will not immediately stop anonymous on-line attacks, over time, the blogger in his bedsit in Bangor should learn that he can no longer have a nasty anonymous on-line pop at his neighbour with impunity. Free speech is not free; it carries with its right serious responsibilities and both may be served if web hosts take up this potentially useful opportunity to protect themselves, reputation and reputable free speech at the same time.