Evaluation of the Defamation Act 2013

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Chapter 1- Introduction

The internet has so many features that are both blessings and curses. One of these two-faced features is the fact that the anything on the internet can be accessed from anywhere, making the world a global village. The feature is of importance to this dissertation as it has created a new tort out of defamation known as cyber-defamation.

Defamation can be defined as a statement that causes harm to one’s reputation. Defamation is divided into two categories which are slander and libel. Although there is no clear-cut definition of what slander and libel constitute, slander occurs when a defamatory statement is made in a temporary form while libel occurs when a defamatory statement is made in a permanent form.[1]

“Cyber defamation is a combination of the traditional form of defamation but taking place on the internet or in cyberspace. It can be broadly termed as any act, deed, word, gesture or thing on the internet or concerning cyberspace which is designed to harm a person’s reputation or goodwill in the internet with a malafide intention in society.”[2]

Freedom of expression is an essential right in democratic states. This is evidently so as it is enshrined in the constitutions of these states. The internet has become an important medium in exercising this right. Freedom of expression, however, is not an absolute right[3], it is limited in some ways such as the right to reputation. The law of defamation is rooted on the right to reputation. As a result of the unique nature of the internet, the law of defamation has been modified to fit this nature, birthing the law of cyber-defamation.[4]

The Defamation Act 2013 was enacted in 2013 and came into force on January 1, 2014. One of the main reasons that the Act was enacted was as a response to the growing problems of cyber-defamation with an aim to give clarity on the law governing this area. The Act focused on three key areas that affected defamation on the internet. These are defences for internet intermediaries (sections 5 and 10), single publication rule (section 8) and libel tourism (section 9).

Ludbrook identifies what makes cyber-defamation different from traditional forms of defamation in his quote down below:

“Of course, the biggest problem with internet-based libel issues, whether perpetrated via such a forum or not, stems from the nature of the beast itself … However, the fact remains that, today, one person, via a single PC modem, a phone line and access to website content, can publish the most damaging libel with ease and, in the process, disseminate it to the world within seconds. Naturally enough, as in more conventional contexts, when a libellous statement is published via the internet, the aggrieved entity tends to be just as desperate to get the offending content out of the public domain as quickly as possible, and is often similarly eager to be compensated for damage sustained to reputation. However, unlike the vast majority of traditional scenario, it is often very difficult for ‘defamed of cyberspace’ to identify the defamer at all. What is more, even if the perpetrator can be identified, he or she is often not worth suing. Consequently, the attention of the aggrieved individual or company quickly comes to rest on those responsible for providing the conduit for such publication and dissemination–so called the ‘secondary publisher(s)’ such as ISPs and website proprietors.”[5]

The overall aim of this dissertation is to critically evaluate the appropriateness of the changes made by the Defamation Act 2013 concerning cyber-defamation for the present digital age.  The research questions are: outline the present state of the internet age; critically assess the appropriateness of the Defamation Act 2013 on this area in the present digital dispensation; and recommend ways in which the law can be developed further.

The research methodology used in this dissertation is the doctrinal legal research. This dissertation will outline the state of the internet age, examine the state of the law on cyber-defamation before the Act, assess whether the changes made by the Act are suitable for the current digital age, compare UK’s law to the law in other countries and make recommendations on how the law can be improved.

Chapter 2- An Understanding of the Present Digital Age

2.1 History of the Internet

Computer networking just started in the later part of the 1960s. The creation of local area networks (LANs) of computers started this technology of networking. They were most times connected through coaxial cables in college departments, government agencies and companies.[6] This enables the transfer of data between computers on the network. It is, however, restricted to a particular geographic location because of the cables connecting the computers.

The technology that connected computers that were in considerable distance from each other was developed in the late 1960s. This created the initial wide area networks (WANs). Computers are interconnected through a modem that transfers signals through a lengthy transmission cable, for example, a phone cable. There is a computer in the centre of the WAN that directs the communication between the individual computers.[7]

“From the early 1960s, the United States’ Department of Defense funded research into the interconnection of computers through the Advanced Research Projects Agency (ARPA). ARPA developed its own WAN, known as ARPANET, and explored connecting computers using satellite and radio transmission technology. The internetwork, or internet, created by the connection of different LANs and WANs to ARPANET became known as the Internet project.”[8] An objective of the Internet project was to develop a system that fosters communication although a section of the network system was inaccessible, missing or damaged. It was important to the Department of Defense because it was seen as a way of sustaining communication during war.

ARPANET grew from just four networks in December 1969 to 111 networks in March 1977. As a result of the fact that the technology that was used in a variety of LANs and WANs is sometimes unsuited, the TCP/IP Internet Protocol Suite was created by the ARPA researchers to solve the problem. The Internet Protocol (IP) aided communication among unsuitable networks, while the Transmission or Transfer Control Protocol (TCP) controlled the order structure by which data was transmitted and reconstructed through the Internet. The TCP/IP became a standard for the Internet by the mid-1980s.[9]

The ARPANET system could not expand further so the American National Science Foundation (NSF) developed NSFNET, a more substantial WAN. This substituted ARPANET. A European version of the NSFNET, EBONE was created by a European group in 1991.[10] As at 2016, there were about 3.5 billion internet users and of this figure, 60 million of them are in the UK. 92% of the population in UK are users of the internet.[11] There are about 255 million users of Twitter[12] on a monthly basis that post around 500 million tweets daily.[13]

2.2 How the Internet Works

The Internet is a system of computer networks which consist of WANs, LANs and WANs backbones[14]. Most internet users are connected through Internet Service Providers (ISPs). “The main American ISPs began as providers of self-contained computer network services which later expanded to provide subscribers with access to the Internet… Some large ISPs operate high-speed Internet backbones. Smaller ISPs typically provide Internet access by interconnecting to a high-speed Internet backbone owned and operated by another ISP. Subscribers might be individuals with a modem and telephone line or cable. Other subscribers might be operators of LANs and WANs, such as businesses, which connect to the ISP’s WAN through the use of a dedicated cable. Wireless access to the Internet is rapidly gaining in popularity, using a wide variety of technologies.”[15] Communication is made on the internet through digital signals from one computer to another. These signals carry messages such as emails, videos, texts, etc.

All transfer of information on the internet must go through intermediate networks. These intermediate networks are usually operated by ISPs, operators of WAN backbones, or operators of business networks. “For any given Internet communication, there will be two categories of intermediary. First, there will be those intermediaries through whose computer systems a communication must pass en route from one computer to another. Secondly, there will be other intermediaries through whose computer systems a communication may pass, depending on the route taken by a particular communication.”[16] As a result of the fact that signals transmitted through the internet go through diverse computer networks, interception is most times possible and unnoticeable.

2.3 The Internet and its Importance to Defamation

According to Collins[17], the internet possesses five features that differentiates it from other methods of communication. These are geographical indeterminacy, intermediaries, republication, hyperlinks and different forms of publication.

Geographical indeterminacy refers to the fact that the reach of the internet is global and this enables anybody to access anything from any location. This affects the jurisdiction of courts and laws in cases. An important question always asked is which nation’s defamation laws should be applied?

All communication on the internet must pass through intermediaries which are the ISPs. Most times, the publication passes through different ISPs. There are intermediaries in other types of communication such telecommunications services and postal services. ISPs are distinct from the above in the sense that the publication is often “stored in the computer systems maintained by the intermediaries”[18] for a period of time; and some ISPs are able to monitor the publications. Questions arise concerning ISPs such as the ones posed by Collins:

“Have communications been published to intermediaries, simply because they have passed through their computer systems en route from sender recipient? … Are intermediaries ‘publishers’ of the material which passes through their computer systems? If so, are intermediaries able to avoid liability by relying on any statutory defences, or … defence of innocent dissemination? Could intermediaries be liable for failing to remove defamatory material on their computer systems, once it has been brought to their attention?”[19]

Material on the internet is capable of being republished to a greater extent than any other form of communication with little effort and to a vast number of people, for example, internet jokes or memes. This gives rise to questions such as: “whether the original author of an Internet publication can be liable for the consequences of its republication; whether any effective steps can be taken to minimize the risk of becoming so liable; and the circumstances in which Internet users might be liable for republishing material which they did not create.”[20]

Hyperlinks performs the duty of cross-referencing an internet publication on another internet publication. Just by clicking the link, the internet user has access to the internet publication of that website. This is not available in other forms of publications. Hyperlinks are confusing as they blur the point at which one publication finishes and where another starts. Hence the question of whether including a hyperlink can result in a publication.

Pictures, videos, memes[21] and sound are just examples of the various forms of publications which exist on the internet. The internet can mimic television, telephones newspapers ad radios (to name a few) in its forms of publication. Some publications on the internet are temporary, such as Snapchat[22] stories while others are permanent. This is important in determining whether the publication is slander or libel. It is also important in the meaning of publication. For examples, on the internet there are unique forms such as emojis[23].

2.4 The Liability of Internet Intermediaries

Internet intermediaries are usually regarded as connectivity intermediaries, acting as media for passing information online. Some examples include internet service providers (ISPs); social network providers (e.g. Instagram); and navigating intermediaries (e.g. Bing). It is instituted in laws of countries where the internet is prominent that an ISP will not be liable for defamatory statements published by their customers with their services unless they decline to take down the publication when ordered by a court.[24]

ISPs get involved in the passing of information on the internet through different means. These means include hosting websites, giving access to newsgroups, email services, providing forums and website designing. Emails or electronic mails, as the name implies, are mails sent through the internet. Emails involve two ISPs, that of the sender and that of the receiver. The ISPs do not have control over the messages being sent as they are transmitted with a code. Thus, they are not regarded as publishers of emails.[25] Hosting occurs when an ISP saves data given by others on its server.[26]

In website hosting, internet intermediaries are regarded as publishers. Those that design websites have some control over content as they can modify texts. As a result of this, website designers can be regarded as publishers. “Newsgroups are collections of written conversations and files that are left for everyone subscribing to the group to retrieve or reply to.”[27] The contents of newsgroups are stored on the ISP’s server and a user will have to access it through the ISP’s server. ISPs can also be selective with the newsgroups that they host and showcase on their platform. It is in this capacity that they are regarded as publishers.

Forums are similar to newsgroups in that they are files and conversations available to subscribers of the forum. ISPs that provide forums are likely to be liable as they sometimes oversee the communication on the forum, therefore being likened to editors.[28] In ascertaining the liability of online intermediaries there are three laws to consider: Defamation Act 2013, Defamation Act 1996 and the Electronic Commerce (EC Directive) Regulations 2002.

Chapter 3 – The Law on Cyber-Defamation Before the Defamation Act 2013

3.1 – Introduction to the Law of Defamation

The law of defamation is in existence to protect the reputation of legal entities such as people and businesses against the right to freedom of speech. The law of defamation tries to strike a balance between the right to freedom of speech and the protection of one’s reputation. The sources of the law of defamation consists of statute and common law including the Defamation Act 2013, which is of particular importance in this dissertation.[29]

Although s.1 of the Defamation Act now requires that all defamatory statements must show that it has “caused or is likely to cause serious harm”, for slander to be proven there must be actual damage except where the statement impute ‘incompetence in business dealings’[30] and ‘criminal conduct’.[31] Living human beings[32]; and companies[33] and other organisations such as trade unions[34] and charities can bring defamation claims.

In establishing a claim, four questions need answers. First of this is whether the statement is defamatory. Lord Atkin defined defamatory statements as statements which “tend to lower the plaintiff in the estimation of right-thinking members of society generally”[35] The next question focuses on whether the statement refers to the claimant (identification). This is easy to prove if the name of the claimant is named in the statement. This requirement is satisfied if a reasonable person would believe that the statement refers to the claimant.[36]

Serious harm has to be proven for all claims arising on or after January 2014[37]. The statement must have also been published to a third party. There is publication if the statement has been communicated to anyone other than the person defamed.[38].

There are defences to defamation which include truth, innocent dissemination, accord and satisfaction, privilege, consent, and honest opinion.

3.2 The State of the Law on Cyber-Defamation before the 2013 Act

Section 166(1) of the Broadcasting Act 1990 deems that most forms of communications on the internet are permanently published and therefore libel if defamatory. Video and voice calls on the internet are likely to be seen as slander. However, if they are made to more than one recipient, they will be considered libel.[39]

In establishing a claim in cyber-defamation, the same steps to establishing a claim in defamation are applied. The first of this is publication. This is easily satisfied. Concerning web pages that are accessible and popular bulletin boards, it is usually inferred that there is publication.[40] However, if an email has not been read or the web page has not be accessed, the statement has not been published.

Unintentional publication warrants no liability except it is a natural result of the defendant’s action or, considering the circumstances, the defendant reasonable should have expected publication.[41] If the statement is sent directly to the defamed, there is no publication if there was an interception by a third person except it was reasonably foreseeable that a third person would see it.[42] It is possible that the material will be intercepted. The foreseeability of a private email being intercepted is not likely as it may be a criminal offence.[43] Business emails will be reasonably foreseen to be intercepted as it is regular practice. Hacking is also not foreseeable.[44]

Tracing the source of the publication proves to be difficult as it is very easy for users of the internet to remain anonymous as most websites do not require proper registration to make comments, also false information can be used to create emails. Even when the publishers of the defamatory statement are found, they usually cannot afford to pay damages in defamatory claims. As a result, defamed people pursue claims against the internet intermediaries that host, carry or cache the material.[45] An ISP that carries or that is a mere conduit is one that does not have any input in starting the transmission, choosing who receives the transmission and did not choose or edit material being transmitted. Caching “is the storage of information primarily stored on another computer to make retrieval of a web page more efficient.”[46]

In revealing the identity of the poster of the defamatory material, the case of Norwich Pharmacal Co v Commissioners of Customs and Excise[47]allows for “an independent action for discovery (disclosure) may be brought against a person for the purpose of obtaining information about the identity of a wrongdoer.”[48] This will only apply if the person who the discovery application is on has aided the wrong done in a way and if the discovery is needed to identify the wrongdoer. The applicant will cover the costs of discovering the person. This can be denied in the ‘interest of justice’.

The next step in establishing a claim is identification. For there to be an identification, the statement must refer to the person. It need be ‘of and concerning’ the claimant. The obvious way of this being satisfied is using the name or title of the person to identify the person. If a person is named or identified by their title, it constitutes identification. It is not relevant if the recipient(s) of the material have no knowledge of the person.[49]

Where the person is not named: “A hyperlink in an e-mail message, bulletin board posting or web page may also be sufficient to adopt or incorporate extrinsic identifying material contained in the linked web page. For example, suppose that a web page contained the statement ‘Migrants victims of rapacious con-men: click here for more details’, and that by clicking a mouse-pointer, the reader was directed by hyperlink to another web page, containing details of the alleged activities and the names of the alleged con-men. It seems likely that regard could be had to the second web page on the issue of whether the persons named on that page had been identified by the statement on the first web page”.[50]

Defamatory meaning is the next step to be satisfied. The forms of publication on the internet when applying the rules in Charleston v News Group Newspapers Ltd[51]may end in different results. The nature of hyperlinks (it takes an extra step to read the contents of the article) allows for a reasonable internet user to not be expected to read beyond the title of the article. “It might be expected, for example, that ordinary readers of a web page containing a summary of news articles, and hyperlinks to the articles themselves will be less likely to take the affirmative step of following the hyperlinks than ordinary readers of a web page containing headlines, connected by hyperlink to the associated articles.”[52] Therefore, in the first instance, a defamatory statement in the summary may not be defeated by the content of the article. Emoticons[53] or emojis are capable of being used to counteract statements that would have otherwise been perceived as defamatory.

Internet intermediaries will be found liable of defamatory material they did not create which is carried, cached or hosted by them when it is found that they are publishers of the material and no defence is applicable to them. Internet intermediaries that have knowledge of the fact that they host or cache defamatory material are seen as publishers of the material. ISPs who are mere conduits are also regarded as publishers.[54]

There was the multiple publication rule which was applied to cyber-defamation cases in the case of Loutchansky v Times Newspapers Ltd.[55] Actions for defamation are to be brought within a year of the publication of the statement being complained about.[56] The action was not brought within the limitation period but the claimant argued that a new publication occurred whenever the material was access by a reader and this was accepted by the court. This can result in a never-ending liability for defamation as a result of the nature of the internet.

There are defences that are available to internet intermediaries that publish defamatory material which was not authored by them. These defences included: section 1 of the Defamation Act 1996; and the Electronic Commerce (EC Directive) Regulations 2002 (regulations 17 to 19).

Section 1 of the Defamation Act 1996 states: “1.—(l) [i]n defamation proceedings a person has a defence if he shows Responsibility for that— publication. (a) he was not the author, editor or publisher of the statement complained of, (b) he took reasonable care in relation to its publication, and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.”

Regulations 17 to 19 of the Electronic Commerce (EC Directive) Regulations 2002 contain defences for three types of ISPs. The first category are ISPs that are mere conduits. Mere conduits which are basically likened to telephone companies. These service providers just transmit the communication and do not interfere with it. ISPs that are in this category are immune from liability.[57]

The second category comprises of ISPs that cache data given by their users. These ISPs temporarily store information to enhance their services. These service providers are also immune from liability although they may be ordered to take down material. This immunity can however, be lost if they do not “act expeditiously to remove or disable access to information”[58] when the ISPs know that a court has ordered for its take down or the original source has been taken down.

The final category consists of ISPs that host data. They are service providers that store material supplied by a user of the service. Article 19 (1) (a) of the EC Regulation grants immunity to the ISPs in this category only if “[t]he provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent.” This is identical to s.1 of the Defamation Act 1996 apart from the inclusion of illegal activity or information.

As a result of the nature of cyber-defamation, in that, the defamatory content published on the internet can be accessed anywhere in the world, libel tourism has become more prominent. Libel tourism is defined as “a type of forum shopping in which X chooses to bring a libel claim in the jurisdiction thought most likely to produce a favourable result”.[59] The problem begins when a defamation claim is brought against a defendant domiciled outside UK.

Using the traditional jurisdiction rules, to determine jurisdiction in claims where the defendant was not a resident of an EU member state, the claim had to fall “within section 9 set out in para 3.1 of Practice Direction 6B of the Civil Procedure Rules (‘CPR’) and the court, having decided that England is the appropriate forum, provided permission under CPR rules 6.36 to serve the claim form out of the jurisdiction. A claimant could succeed in section 9 if either (a) the damage was sustained within the jurisdiction, or (b) the damage sustained resulted from an act committed within the jurisdiction.”[60]

Rule 6.36 only gave courts the jurisdiction to hear claims concerning material published in UK. The Courts in UK could only calculate the damage to reputation made by the publication in UK and not all the publications.

Pre-internet, In Berezovsky v Michaels[61], the House of Lords held that there was a significant link between the claimant and UK, meaning that he had a reputation in UK to defend. Hence, the damages assessed were just that which was caused by the publication within UK. This led to the term, limited damages requirement (LDR).

Under the previous rules, deciding which country’s law to follow, there are two regimes to consider in cross-border liability, these are country of origin regime and country of receipt (destination). The country of origin regime is based on the law of the actor who in this case is the publisher. The country of destination regime is based on the law of the victim, in this case, the owner of the reputation. On how courts make this decision is political. It is quite hard to politically achieve a country of origin regime except the laws of the countries involved are closely uniform. This is because online businesses will operate in countries with relaxed laws in this aspect. Alternatively, country of receipt regime is criticised for imposing the laws of overly-restrictive countries on other countries. this increases risk for liability.[62]

Another approach of determining which country’s law should be used is the directing and targeting approach. It states that if the activities are directed to a country, then it is susceptible to the laws of that country. It is usually criticised as lacking certainty. Smith suggests that only when an online actor “has engaged in positive conduct towards”[63] a country will it be found to have targeted that country. Targeting is irrelevant in determining the place of publication in English law as place of publication is where the material has been accessed and not the country where it was posted from. Hence, defamation takes a more receipt-oriented approach. This has been demonstrated in two ways. The first is concerning the place of publication, where it is established the publication takes place where the publication is downloaded (or accessed).[64]

3.3 The Problems that Plagued the Old Law

The law commission investigated into the problems with the law of defamation and the internet and produced a report stating the problems it had found. An analysis of the report is given down below.

3.3.1 The Law Commission’s Defamation and the Internet: A Preliminary Investigation

3.3.1.1 Liability of Internet Service Providers:

Internet Service Providers (ISPs) are considered secondary publishers in the context of defamation, although there is actually no legislation that contains this term. Secondary publishers have a defence of innocent dissemination found in section 1(1) of the Defamation Act 1996. The defence has proven to be narrow as it is only available to secondary publishers that are not aware that there is a defamatory statement in the publication. It does not extend to those publishers that mistakenly but genuinely believed that that statement was fair comment, privileged or true.

Therefore, when these publishers are given a notice that a material contains defamatory statements, they usually have no other option than to take down the publication even though the statements might be true. Otherwise, claims may be brought against the publishers.

The case of Godfrey v Demon Internet Ltd [65]is an example of how ISPs are found liable. This case concerned a defamatory statement posted to a newsgroup. The claimant notified the defendants of the posting. The defendants failed to remove the post. The claim brought a claim against them. The defendants argued that they were not liable for the post, claiming that their duty was like the duty of a telephone company. The court rejected this argument, stating that the defendants had control over the storage of the post.

The EC Directive made a distinction between three types of ISPs which are mere conduits, ISPs that cache and ISPs that host information.

The EC Directive is not broad as there are service providers that seem to not be included in its provisions. Particularly, the Internet Service Providers Association (ISPA) has commented on the exclusion of hyperlinks providers and providers of location tools.

Hyperlink providers have been likened to the case of Hird v Wood[66] where the defendant had attracted the notice of bystanders to a placard that contained defamatory material with no evidence of who erected the placard. It was decided that the defendant was liable for defamation by pointing at the placard.

Those that aggregate information were also left out of the Directive although it seems like these aggregators will be considered as primary publishers.

ISPs are the easy targets in internet defamation claims and therefore receive large number of claims which are usually computer-generated or malicious or false. “One ISP described regularly receiving solicitors’ letters on behalf of companies objecting to sites set up by disgruntled customers. Such sites need not be offensive or unreasonable: they often recounted personal experiences that may well be true. However, when faced with a solicitor’s letter sent on behalf of a well-resourced company, the ISP said that they would almost invariably remove the site rather than risk litigation.”[67]

When faced with defamation claims, the ISPs take down the whole site. They could take down just the page containing the defamatory material but the material could be re-uploaded and then they risk being liable for failing to take care.

There were three criticisms made by the industry about the position, the first being that receiving and responding to defamation complaints was costly and onerous. As ISPs receive numerous messages, identifying the complaint proves to be difficult. The next step will be to act on the complaint. This is also difficult, especially when the original material is referred in other publications. All these have to be taken down.

The second criticism was concerned with the fact that ISPs were uncomfortable about removing material that may not have been defamatory. Deciding on whether the material is defamatory is also not practical for an ISP. Also, ISPs fear that the author of the material could bring a claim against them on grounds of breach of contract and interference with the right to freedom of expression of the author.

The last criticism is that internet users may be attracted to US ISPs as they offer more attractive terms to the customers as they are afforded more protection against defamation claims. This is due to that fact that enforcing the judgments against them is difficult as US courts are reluctant to implement UK judgments that are opposing to the right to freedom of speech provided in the US constitution. For instance, Telnikoff v Matusevitch[68]: The defendant was ordered to pay damages to the claimant. The defendant moved to US and when the judgment was to be enforced in the District of Columbia, the district court rejected the judgment and did not enforce it.

Some consultees suggested the US approach of immunity to ISPs that do not author the defamatory article. The Law Commission however, thought that the approach did not give any consideration to reputation as shown in the case of Zeran v America Online.[69] The US approach is found in section 230(c) (1) of the Communications Decency Act of 1996 states that: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Consultees also requested that there should be a code of practice which contained what constituted a ‘notice’ and a ‘take down’ procedure.

3.3.1.2 Liability for online archives:

There are a large number of local newspapers that now have an online presence. These newspapers have archives of their papers online. This has led to questions about liability as a result of the Loutchansky v The Times Newspapers.[70] This case restated the rule that a material is published again each time it gets a new hit.[71]

The single publication rule was suggested as a reform. The single publication rule under US law states that an edition of a book or newspaper is to be seen as a solo publication. The major issue with this rule from the claimant’s view is that they may not have knowledge of the original publication. This issue is, however, common with limitation periods.

3.3.1.3 Jurisdiction and applicable law:

There has always been jurisdictional issues with defamation claims as publications and reputations can cross borders. However, the difference between the traditional forms of publications and the internet is that the parties to the claim were usually just international celebrities who could afford the complex litigations, however, with the internet, the parties could include just about anybody.

Laws on jurisdiction are complex, controversial and change frequently. There are three issues that cause complexity in jurisdiction. The first of these is deciding the place of publication. The definition is different in each jurisdiction. For instance, English law states that publication takes place where the material is read, seen or heard. Thus, publication can occur in any country that the publication is read, seen or heard. The US, however, has the single publication rule which states that publication occurred where the publisher had control over the publication last.

The second is the rule concerning which national court has the jurisdiction to decide on the claim brought. The third issue concerns the law that the court should apply. England uses the ‘double actionability rule’. The rule states that for damages to be given, the claim must be actionable in both the country that the publication occurs and England.

The E-Commerce Directive brought about the principle that “information society services should be supervised at the source of the activity”[72]  meaning that the law of the state that the service provider is established is the law that governs them. The Directive has however not reduced the legal uncertainty.

Jurisdiction within the European Union was considered in Shevill v Presse Alliance SA[73] where it was decided that a claimant who had been defamed in more than one country, the claimant is entitled to two choices: “First, she could sue in the State in which the defendant was “domiciled” in respect of the whole distribution, and claim for damage for reputation wherever in the EU that damage occurred. In respect of publications that took place abroad, the double actionability rule would apply. Second, she could sue in each state in which a defamation took place and where harm was caused, but in respect only of the harm taking place in that State.”[74]

The courts of England can hear a defamation claim when the defendant is lives in England and Wales or when the defamatory material is published to any person in England and Wales. The court has a broad discretion with which it can choose to reject jurisdiction.

Generally, courts will hear a claim if the claimant has a connection to England that is adequate and if there is a non-negligible quantity of publications in England that would be able to harm a reputation. However, if the defendant can prove that it would be really difficult to bring witnesses to England, the court will then contemplate if another jurisdiction would be more suitable.

There were three major criticisms of the jurisdiction rules by the consultees. The first being that the nature of the internet increases their risks of claims being brought against them. It has proven to be especially difficult to prove that the publication has not be accessed in a specific jurisdiction. There are also very high levels of risks as a result of trying to comply with different bodies of law.

The second criticism was that because of UK’s claimant-friendly laws (burden of proof is on the defendants), many foreign claimants are drawn to bring claims in UK.

The last criticism concerned the difference in culture between US and UK values concerning defamation. This is especially due to the right to freedom of speech that is highly valued in US.

The main reform that was suggested was the single publication rule used in the US which has been defined above. This rule makes sure that just one claim is brought in one state no matter how many states the publication was distributed.

Chapter 4- The Appropriateness of the Act for this Current Age

4.1 Preceding the Act

Before the Act came into being, the courts had made efforts to extend the protection of ISPs[75] with the cases of and Tamiz v Google Inc[76]. This case absolved liability from Google, deciding that Google was not a publisher. This case, however, was specific to search engines and the principles from Godfrey v Demon Internet[77]were still applied. Also, the judgment was changed in a higher court in Tamiz v Google Inc[78]. Nonetheless, the case demonstrated a readiness by the courts to reduce the liability of internet intermediaries.

An alternative to the single publication rule, qualified privilege be extended to online archives with content that has been published for over a year, was proposed by the Consultation[79].  “This would involve amending the Defamation Act 1996 to prevent actions in relation to publications on online archives outside the one-year limitation period for the initial publication, unless the publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or statement by the claimant by way of explanation or contradiction.”[80] Qualified privilege is a defence to defamation and is available “on an occasion where the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it, [the communication] is made, and the person to whom it is made has a corresponding interest or duty to receive it. The reciprocity is essential.”[81] This means that online archives should be taken to have a duty to its readers to provide the information and the readers also have a duty to receive the information.

It was proposed by the Draft Bill Joint Committee that ISPs should be permitted to retain the defamatory content on the internet providing that the poster is known and the notice of complaint is placed right beside the content.[82]

The Committee also suggested that if a notice of complaint was made relating to content posted anonymously, the ISP should remove the post. If the ISP believes that the content should not be removed because of ‘public interest’[83], the court should make the final decision.[84] This suggestion was very weak, money would be wasted in going to court to get a decision on something that would have been made clear through statute. If anything, this proposal would have made ISPs more confused. Also, it is most likely that the courts would not find a ‘public interest’ reason to not take down the post.

The Government rejected the Committee’s suggestion concerning where the poster is known citing that posting the complaint beside the allegedly defamatory content posed technical and practical problems.

4.2 The Defamation Act 2013

The Defamation Act 2013 contains five (5) sections that have implications on cyber-defamation. These sections include section 5, 8, 9 and 10. Section 5 is a defence for website operators that did not post the defamatory content and can show that “(a)it was not possible for the claimant to identify the person who posted the statement, (b)the claimant gave the operator a notice of complaint in relation to the statement, and (c)the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.”[85] The Act does state that the defence will not be defeated just because the website operator moderates content on the website.[86] The Defamation (Operators of Websites) Regulation 2013, Schedule 1 to 9,  gives a detailed guide on what action website operators should take in order to make use of the defence.

If the poster is identifiable without the website operator’s assistance, the operator does not need to respond to the notice of complaint to rely on the defence as long as malice cannot be proven. For a poster to be identifiable, the claimant will need to have an address to serve a claim against the poster. However, the information needed to decide if a poster can be identified is unclear as a poster can still be identifiable without an address. This is a question for the court. However, where the poster is unidentifiable by the claimant, the website operator can only lay claim to the defence if he/she responds to the claimant in compliance with the Defamation (Operator of Websites) Regulation 2013 and malice cannot be proven. “Malice should have the same meaning as it does at common law so that a website operator will be liable if he knew the statement was false or was reckless as to whether it was true or false. Whether failing to remove a defamatory statement after the website operator becomes aware of its falsity will amount to malice is not clear.”[87]

The Act offers no definition of terms like ‘websites’. Therefore, it is mostly left to the courts to decide on the definitions of the terms in the section. “In technical terms, ‘websites’ consist of one or more webpages served from a single web domain that is accessible through a uniform resource locator (URL) via a network such as the internet.”[88] The authors[89] of Gatley on Libel and Slander suggest that section 5 will apply to all sorts of websites, as long as they can be accessed via a URL. They also suggest that manufacturers of applications (Apps) for smartphones and gadgets that are similar will not have the defence available to them as an App is just a computer software.[90]

The multiple publication rule is replaced by the single publication rule in s. 8 of the Act. “(1) This section applies if a person (a)publishes a statement to the public (“the first publication”), and (b)subsequently publishes … that statement or a statement which is substantially the same. (3) … any cause of action against the person for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication.”[91] If the subsequent publication is ‘materially different’ from the first publication, this rule will not apply.[92] The Court, however, maintains its discretion under 32A[93] of the Limitation Act 1980.[94] Section 16(6) states that “[i]n determining whether section 8 applies, no account is to be taken of any publication made before the commencement of the section.” The claimant can still bring a claim in respect of the subsequent publication as section 8 just prevents the claimant from bringing a claim on the first publication after a year.[95]

Section 9, addressing the problem of libel tourism, concerns defamation claims against someone that is not a resident of UK, an EU member state, and a contracting state to the Lugano Convention[96] and states that the “[a] court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.”[97]

The Act changed the use of jurisdictional discretion called forum conveniens or forum non conveniens. Using this test, the courts decided on jurisdiction depended on the defendant being domiciled in UK or having some link between the issue and the country save a more suitable court is available. Although there may be a more suitable court, there is still a discretion to not dismiss jurisdiction if it is proven that the claimant would not get fairness if refused jurisdiction.[98]

In determining whether UK is the most suitable place for a claim to be heard, the court considers factors such as the measure to which the claimant’s reputation has been damaged in UK in comparison to elsewhere, “the extent to which the publication was targeted at a readership in England as compared to elsewhere and whether the claimant may not receive a fair hearing elsewhere.”[99]

With the 2013 Act, the court has to consider all publication of the material involved in everywhere it was published. Before the new law, the courts only cared about the publication in UK, disregarding the other publications made outside the UK.[100] This requires the courts to weigh the damage to reputation in each place the defamatory content was accessed.[101]

The next section, section 10, states that “[a] court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.”[102] The definition of ‘author’, ‘editor’ and ‘publisher’ are found in section 1 of Defamation Act 2013.[103] This section, although taken as a defence, focuses on court jurisdiction. The effect is that it prevents the court for hearing claims against secondary publishers unless it is practicably unreasonable to bring the claim against the primary publisher. At the end, the section still has the same effect as defence if one is not the primary publisher if it is reasonably practicable for the claim to be brought against the primary publisher.

The last section pertaining to cyber-defamation, section 13, states that “[w]here a court gives judgment for the claimant in an action for defamation the court may order— (a)the operator of a website on which the defamatory statement is posted to remove the statement, or (b)any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.”[104]. This grants the court the power to order the removal of a defamatory statement.

4.3 The Suitability of the Act

4.3.1 The Improvements Made by the Act.

The Defamation Act 2013 affords a wider defence for ISPs in section 5 and section 10 than the 1996 Act in the sense that the intermediary just needs to show that he/she was not accountable for the defamatory statement that was posted. The Act discards the ‘reasonable care’ requirement.[105] The Regulation states, in explicit terms, what should be done in possible scenarios arising from a notice of complaint in order for the section 5 defence to apply. Therefore, the act does, in this area, provide certainty for website operators and grants the request of the respondents in the Law Commissions Report for a detailed guide on what to do when there is a complaint.[106]

As a result of section 10, ISPs are protected from defamatory claims brought against them just because they are able to give large pay-outs in damages as the court does not have the jurisdiction to hear such claims if the claim can be brought against author, editor or publisher.

The provision, by section 5(12), that moderation by a website operator does not automatically defeat the defence is an improvement as operators of websites that automatically block or take down content because of some vulgar language or spam can rely on this defence.[107]

The Act brings about the single publication rule in section 8 and this changes the multiple publication rule in Loutchansky v Times[108]. This prevents the risk of a new claim each time the publication gets a new hit on the internet.[109]

The effect of section 9 of the Act is that it has reduced the way in which UK defamation laws affect foreign publishers.[110]

Section 13 of the Defamation Act 2013 gives the court the authority to order a removal of the defamatory content once the court has ruled in the claimant’s favour. Therefore, making sure that defamatory content does not remain online and continue to cause damage to the claimant’s reputation. This is seen, by the Americans, as a law worth emulating so as to stop the problem that they currently face with the immunity granted to ISPs.[111]

4.3.2 Problems that Persist

Despite the efforts to improve on the law, there are still some areas of concern. In respect to the section 5 defence for website operators, Mullis and Scott suggests that there will be probable difficulty in deciding where social media platforms (including Instagram and Snapchat) fall where there is no clarity on whether the operator is the owner of the platform, the user, or both.[112]

The notice of complaint need not have substantive evidence that the statement being complained of is indeed defamatory. This is problematic as the intermediary should not be made to remove the publication or expose the identity of the poster without evidence.[113] This essentially is what was being complained of in the Law Commission Report, that intermediaries must take down publications even if the statement might not be defamatory.

Also, a main criticism made by the intermediaries was that they had to play ‘judge and jury’[114] in these situations. However, Mullis and Scott see nothing wrong with the intermediaries playing ‘judge and jury’ provided they have the right information. “Knowledge should import some responsibility; it is not unreasonable to require a website operator to take steps to ascertain the truth of an allegation that it is knowingly publishing.”[115] The Law Commission retorted saying that it is easier to determine whether a publication is defamatory than determining if it is true. However, Ludbrook argues that “such commentary misses the profound reality of the problem by a country mile”.[116]

The effectiveness of section 5 depends on the Defamation Regulation 2013. The Regulation, although detailed, calls for heavy administration.[117] The intricacies of the step-by-step procedure on what a website operator must do to be eligible for the section 5 defence can possibly prevent proper use of the Regulations by a number of website operators. There is still the possibility of an automatic take down of content that is not certifiably defamatory.[118]

As regards to section 10, what factors will be considered by the courts in deciding if bringing a claim against a (primary) publisher or intermediary is reasonably practicable is unknown.[119] “The practicalities, however, are yet to be determined, a key factor being the definition of ‘reasonably practicable’. To what extent will a claimant be required to go before the intermediary becomes liable? Will they be required to pursue the often-costly route of obtaining a Norwich Pharmacal order from the court for the disclosure of anonymous user details? Will it be ‘reasonably practicable’ to sue an author, editor or publisher located out of the jurisdiction? Or to bring proceedings against a user with nothing to lose who you know will repeat the allegations and publicise and make fun of your threat of action?”[120]

Mullis and Scott argue that the criticisms of the multi-publication rule were one sided as it did not consider the possibility for continued damage because of the continuing publication. The reputation of the claimant is disregarded with the new rule as harm does not occur because of publication (in layman’s terms), but when the publication is read.[121]

Mullis and Scott that the rule will not be efficient in solving what it was intended to solve as the right to reputation is protected under respect for private life in Article 8.[122] The limitation period can be removed, thereby disregarding the effect of the single publication rule, when it is fair considering the facts of the case. The legislation may also be interpreted in adherence with the European Convention on Human Rights (ECHR). Under the multiple publication rule, the publisher is only liable for the new harm caused by the new hit. However, if the section 8 rule is rendered useless by the court extending the limitation period, the liability of the publisher includes all the harm caused from the first publication. This rule might not be as protective as it seems.[123]

While Mullis and Scott believe that the change of the law was needed to avoid Loutchansky– style litigation, there were other options apart from section 8 which in their opinion is not very effective.[124]

Auda argues that the effect of section 9 might not be as pronounced as section 9(2) gives discretion to the courts as it decides what the most suitable place is. Therefore, this section may not be effective in curbing libel tourism.[125]

Mills claims that the new law can be tricky in two key aspects. The first is that it does not include the last part of the forum non conveniens test where jurisdiction will not be dismissed if the claimant will not have access to fairness in another court. A claim might be rejected on the basis that there is a more suitable jurisdiction even if the courts in that jurisdiction are prejudiced towards the claimant. However, if ‘appropriateness’ can be construed to include ‘fairness’, this problem will be avoided. If not, the law might be contrary to article 6 of the European Convention on Human Rights (ECHR).[126]

The second problem arises from the phrase ‘clearly the most appropriate place’. This means that if a defamatory publication was equally dispensed in two countries, resulting in the same harm in the two countries, the claimant cannot seek redress under UK law.[127]

Nevertheless, the Act does decrease the possibility of fruitfully bringing claims proceeding from acts of defamation committed abroad, thereby reducing the number of trials where there are choice of law disputes. The reforms do not, and practically cannot totally eradicate libel tourism cases because the European Union, of which the UK is a member[128], is under the Brussels I Regulation and claims can still be brought against non-EU citizens, especially if the material was mainly circulated in UK.

Auda sees section 9 of the Defamation Act 2013 as a welcome development but is worried about the discretion afforded to the court. This provision “does not go far enough in resolving the problem of libel tourism and that more can, and should, be done.”[129]

Section 13 has been criticised as granting the court powers of injunction without the court having to properly decide if an injunction is fitting.[130]

The Act, also, does not address the fear held by the ISPs that the author of the material could bring a claim against them on grounds of breach of contract and interference with the right to freedom of expression of the author.[131] Hyperlinks and location tools providers have still not been included in legislation, thus maintaining the uncertainty concerning their possibilities for liability and the defences available to them.

Although the Act addresses a number of problems that the law on cyber-defamation had, as discussed above, it does have a lot of short comings. The most important short coming though, is the fact that apart from the single multiplication rule introduced in section 8, the reform was far from a radical change.

Chapter 5- Comparative Law and Recommendations

5.1 The Law of Cyber-defamation in United States of America (US)

Under US law, there is no distinction between the types of ISPs as was done in the EC Directive, they are all in the same category. Communication Decency Act (CDA) 1996 in Section 230 grants immunity to ISPs against liability arising from third-party users’ content, stating that service providers are not publishers. This has been criticised with being too wide, particularly considering the wide interpretation of the section given by courts.[132] The burden of proof to access defences for internet intermediaries is on the defendant under UK law but that onus is placed on the claimant.[133]

Section 230 of the CDA 1996 made the judgment in Stratton Oakmont Inc v Prodigy Services Co[134](the defendant was seen as a publisher because editorial services were provided) obsolete and granted immunity to all ISPs under the “Good Samaritans” defence. This is because it is practically impossible for ISPs to sufficiently edit all publication through their system, therefore giving credence to the argument of the defendants in Prodigy.[135]

However, the law in US has been criticised to be too liberal on service providers. The decision in Zeran v America Online Inc[136] is disparaging to the requirement in UK law that once notified, an ISP should take down defamatory content. Araromi argues that service providers can take down defamatory content. The right to reputation and the right to freedom of speech needs to be balanced. This is something where the US law seems not to do. Araromi suggests that ISPs should be responsible to take down defamatory content when notified to qualify for a defence as the provision found in the Digital Millennium Copyright Act as regards to ISP liability for copyright infringement. Araromi also claims that the protection given to ISPs should be limited to whether the ISP is aware of the defamatory content.[137]

The Law Commission report did not want to recommend the US approach of no immunity, citing that the Zeran[138] case was unfair.

In the US, there is also a dissatisfaction with the way section 230 “effectively creates a wall of immunity around harmful speech.” The law allows for defamatory material to be left on the internet even after it has been proven to be defamatory. This shows disregard for the right to reputation.[139]

The law of US concerning cyber-defamation is too extreme to be adopted into UK law as it will contradict the rights afforded UK citizens by Article 8 of the ECHR. Intermediary liability for defamatory content posted by third-parties cannot be total discarded as done in US because if internet intermediaries are granted immunity from defamatory claims even in cases where the intermediaries have actual knowledge, it will be contrary to the European Directive on Electronic Commerce. The EC Directive[140] spells out that “a host cannot be exempted from liability for not acting expeditiously in cases where it has actual knowledge of unlawful activity or information it hosts.”[141]

5.2 The Law of Cyber-defamation in South Africa (SA)

The law concerning the liability of internet intermediaries for cyber-defamation in South Africa is found in the Electronic Communications and Transactions Act No. 25 of 2002 (ECTA).

The ECTA affords four defences to intermediaries. The first is that it grants immunity to ISPs that are mere conduits, their services are automatic and are not interfered with by the ISP.[142]

The second defence is offered to the ISPs that cache data for more efficient services. It states that they are free from liability if they do not amend the data and that it observes the industry rules relating to the updating of data and adheres to the stipulations on access to the data.[143]

The third defence, found in s.75 of the ECTA 2002 grants immunity to ISPs that host data at the request of the costumer, if the ISP “does not have actual knowledge that the data message or an activity relating to the data message is infringing the rights of another person; is not aware of facts or circumstances from which the infringing nature of the data or activity is apparent; and acts expeditiously to remove or disable access to data upon receiving a takedown notification.”[144]

The fourth defence is in s. 76 of the act.  This defence focuses on providers of hyperlinks. “It provides that a service provider is not liable for damages incurred by a person if it refers or links users to a web page containing an infringing data message or activity, by using information location tools, provided that the service provider does not have actual knowledge of the infringing nature of the data message or related activity on the rights of that person. Moreover, the additional conditions that the service provider must fulfil to be indemnified include the fact that the service provider is not aware of facts or circumstances from which the infringing activity or the infringing nature of the data message is apparent; it does not receive a financial benefit directly attributable to the infringing activity; and, upon receipt of a takedown notice, acts within a reasonable time to remove or disable access to the data.”[145]

SA’s law on cyber-defamation is similar to that of the UK, in that, it tries to maintain a balance between right to reputation and freedom of expression.[146] The difference is that there is a special defence for hyperlink providers and providers of location tools. The UK can take a cue from this provision as there is still uncertainty regarding the liability and defences available to providers of location tools and hyperlinks.

5.3 The Law of Cyber-defamation in India

The right to reputation is found in the Constitution of India 1950, Article 21, which states that “[n]o person shall be deprived of his life or personal liberty except according to a procedure established by law.”

Under Indian law, the Information Technology (Amendment) Act (ITAA) 2008, s.66A contains the offence of cyber-defamation stating that:

“Any person who sends … any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device … shall be punishable with imprisonment for a term which may extend to three years and with fine.”

As with the law on cyber-defamation in US, there is no distinction between the types of ISPs, rather, section 2 of the ITAA groups them all as ‘intermediaries’, defining intermediaries as “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”.

The Act in s. 79 limits the liability of intermediaries where the all the intermediary’s role is to provide the service, it does not interfere in anyway. Intermediaries are expected to act expeditiously to notification by the suitable government, or an agency when notified and take down the publication to be able to use the defence. In order to be free from liability, an intermediary’s role has to be restricted transmitting and storing data temporarily. Thereby excluding intermediaries that host data. Concerning jurisdiction issues, the law states that the courts in India have the right to jurisdiction if the computer device used for publication is within India.[147]

As with UK and SA, India’s law on liability of ISPs in cyber-defamation makes an effort to strike a balance between freedom of expression and right to reputation.[148] However, excluding intermediaries that host data is what differentiates them. This seems to be a gap in the law. Its law on deciding jurisdiction appears straightforward and certain, characteristics that are lacking in UK’s law.

5.4 Recommendations

Due to the fact that website operators might be discouraged from engaging in the defence owing to the heavy administrative work that comes with it, Coors suggests that to improve the section 5[149] defence, “[t]he response of operators of websites to the new law, public awareness, opinion and use of the law should, therefore, be monitored and reviewed by statistical data collection and surveys. Examples of indicators could be, for example, time for response, risk assessment and probable reasons for defamation.”[150] Hence, Coors recommends that there should be an amendment of the Regulations which includes “the scope of monitoring and the establishment of an independent monitoring commission.”[151]

Mullis and Scott suggested that the multiple publication rule should have been kept with the introduction of the defence of ‘non-culpable republication’.  Non-culpable republication is a proposed defence available to archivist a year after the first publication. “To avail of the defence, the archivist would be required if challenged to append a notice to the archived online article … Such a notice should indicate that a challenge to the accuracy of the original story had been made under the new statutory defence.”[152]

This recommendation was made to prevent perpetual damage to reputation as the defamatory content may still be found online. The provision in section 13[153] would have been able to solve this problem if the court could order the removal of the defamatory material without a claim being brought. However, for the court to decide if the material is indeed defamatory to order a removal, there needs to be a claim. If this recommendation is followed, it will place some responsibility on online archives to make sure that the information they provide is accurate. This is in the public’s interest.

Concerning libel tourism, Auda proposes that, to determine the suitability of the court in hearing a claim against a foreign defendant that importance should be placed on objectively determining the intention of the publisher by his/her/its actions. In doing this, Auda claims that the interests of the claimant and defendant will be balanced, thereby taking into consideration, situations where the publisher did not intend the publication to be accessed in UK. However, when making a publication online, a publisher should be aware of the possibility that the material can be accessed basically anywhere. Auda also suggests that this change to the law should be brought about by a convention as solving the problem of libel tourism needs a collective effort from other states and the other states have to acquire the same regulations to guarantee fairness.[154]

Chapter 6- Conclusion

The objective of this research was to assess the appropriateness of the changes made by the Defamation Act 2013 regarding cyber-defamation. The questions that guided this dissertation were

The result of the research was that although the Defamation Act 2013 addressed some of the issues that plagued the law on cyber-defamation, with the major change being that of the single publication rule, the changes made are not so major and also come with problems of their own.

Section 5 is a welcome improvement as it reduces the liability of internet intermediaries. Section 10 is also instrumental as claimants cannot go after the deep-pocketed internet intermediaries with defamation claims when it is reasonably practicable to bring the claim against the author, editor or publisher. The move from the multiple publication rule to the single publication rule is a relief for online archives and an answer to the problems laid out in the Law Commission’s Report on Defamation on the Internet. Section 9 reduces the chances of claims being made against foreign defendants.

To rely on the defence found in section 5 requires a lot of administrative work. This discourages website operators from engaging with the defence. The defence still requires ISPs to act as a ‘judge and jury’ to decide whether the content is defamatory or not. Section 5 and 10 come with ambiguities on what ‘website’ and ‘reasonably practicable’ mean. The single publication rule has been criticised as being contradictory to Article 8 of the ECHR. While the new jurisdiction rule found in section 9 has been criticised because of the removal of the fairness requirement. Section 9 has also been said to have minor impact on the state of the previous law.

The laws of US concerning cyber-defamation cannot be adopted into UK law as the immunity granted to ISPs is in contradiction with EU laws and the ECHR. India’s and South Africa’s laws on ISP liability are similar to that of the UK as they both try to achieve a balance between the right to freedom of expression and the right to reputation. The recommendations made by the academics mentioned, particularly that of Mullis and Scott[155] should be taken into consideration so as to prevent continual damage to reputation and providing information to the public that is not entirely true.

The Defamation Act 2013 is a step in the right direction for cyber-defamation. This step, however, is a minor one.


[1] K Horsey & E Rackley, Tort Law (2015, 4th edn OUP Oxford).

[2] R Aggarwal & R Kaur, ‘Defamation on social networking: legal implications with special reference to India’ (2015) Computer and Telecommunications Law Review 21(4), p.95.

[3] Article 10(2), ECHR.

[4] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123.

[5] T Ludbrook, ‘Defamation and the Internet: where are we now and where are we going? Part 1: Where are we now?’ (2004) Entertainment Law Review 15(6), p.174.

[6] M Collins, The Law of Defamation and the Internet (2005, 2nd edn OUP Oxford).

[7] M Collins, The Law of Defamation and the Internet (2005, 2nd edn OUP Oxford).

[8] M Collins, The Law of Defamation and the Internet (2005, 2nd edn OUP Oxford), p.10.

[9] M Collins, The Law of Defamation and the Internet (2005, 2nd edn OUP Oxford).

[10] M Collins, The Law of Defamation and the Internet (2005, 2nd edn OUP Oxford).

[11] Internetlivestats.com

[12] Twitter is a social networking site.

[13] M Kelley & S Zansberg, ‘140 Characters of Defamation: The Developing Law of Social Media Libel’ (2014) Journal of Internet Law 18(1), 7.

[14] A backbone is a bigger transmission cable which conveys data collected from smaller cables that interconnect with it.

[15] M Collins, The Law of Defamation and the Internet (2005, 2nd ed OUP Oxford) p.14.

[16] M Collins, The Law of Defamation and the Internet (2005, 2nd ed OUP Oxford) p.18.

[17] M Collins, The Law of Defamation and the Internet (2005, 2nd ed OUP Oxford).

[18] M Collins, The Law of Defamation and the Internet (2005, 2nd ed OUP Oxford), p.34.

[19] M Collins, The Law of Defamation and the Internet (2005, 2nd ed OUP Oxford), p. 35.

[20] M Collins, The Law of Defamation and the Internet (2005, 2nd ed OUP Oxford), p.37.

[21] A meme is an image, video, piece of text, etc., typically humorous in nature, that is copied and spread rapidly by Internet users, often with slight variations.

[22] Snapchat is a social media application.

[23] An emoji is a small digital image or icon used to express an idea or emotion in electronic communication.

[24] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123.

[25] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123.

[26] A Mullis, R Parkes & G Busuttil, Gatley on Libel and Slander (2013, 12th edn, Sweet & Maxwell Ltd, UK) at 6.43.

[27] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), p. 124.

[28] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123.

[29] K Horsey & E Rackley, Tort Law (2015, 4th ed OUP Oxford).

[30] Defamation Act 1952, s 2.

[31] Webb v Beavan (1883) 11 QBD 609.

[32] Law Reform (Miscellaneous Provisions) Act 1934, s 1(1) provide that defamatory claims will be struck out if one of the parties die.

[33] South Hetton Coal Co v North-Eastern News Association Ltd [1984] 1 QB 133.

[34] Derbyshire CC v Times Newspapers Ltd [1993] A.C. 534.

[35] Sim v Stretch [1946] 2 All ER 1237, [1240].

[36]  Knupffer v London Express Newspaper Ltd [1944] A.C. 116.

[37] Defamation Act 2013, s 1(1) and s 1(2).

[38] Pullman v Walter Hill & Co, Ltd [1891] 1 QB 524.

[39] Broadcasting Act 1990, s 166(1).

[40] Godfrey v Demon Internet Ltd [2001] QB 201.

[41] Weld-Blundell v Stephens [1920] AC 956.

[42] Pullman v Walter Hill & Co, Ltd [1891] 1 QB 524.

[43] Regulation of Investigatory Powers Act 2000.

[44] Pullman v Walter Hill & Co, Ltd [1891] 1 QB 524.

[45] I Lloyd Information Technology Law (2011, 6th edn OUP Oxford).

[46] A Mullis, R Parkes & G Busuttil, Gatley on Libel and Slander (2013, 12th edn, Sweet & Maxwell Ltd, UK), 6.43.

[47] [1973] 3 WLR 164.

[48] M Collins, The Law of Defamation and the Internet (2005, 2nd ed OUP Oxford), p. 81.

[49] Jones v E Hulton & Co [1909] 2 KB 444.

[50] M Collins, The Law of Defamation and the Internet (2005, 2nd ed OUP Oxford), p.89.

[51] [1995] 2 AC 65. It was held that a claim for libel could not be founded on a headline or photograph in isolation from the related text.

[52] M Collins, The Law of Defamation and the Internet (2005, 2nd ed OUP Oxford), p.99.

[53] An emoticon is a typographic display of a facial representation, used to convey emotion in a text only medium. Like so: ;-).

[54] M Collins, The Law of Defamation and the Internet (2005, 2nd ed OUP Oxford).

[55] [2001] EWCA Civ 1805.

[56] Limitation Act 1980, s4A.

[57] Regulation 17, Electronic Commerce (EC Directive) Regulations 2002.

[58] Regulation 18, Electronic Commerce (EC Directive) Regulations 2002.

[59] A Auda, ‘A Proposed Solution to the Problem of Libel Tourism’ (2016) Journal of Private International Law 12(1), 106-131, p. 107.

[60] A Auda, ‘A Proposed Solution to the Problem of Libel Tourism’ (2016) Journal of Private International Law 12(1), 106-131, p. 108.

[61] [2000] 1 WLR 1004.

[62] G Smith, ‘Here, there or Everywhere? Cross-border Liability on the Internet’ (2007) Computer and Telecommunications Law Review 13(2), 41-51.

[63] G Smith, ‘Here, there or Everywhere? Cross-border Liability on the Internet’ (2007) Computer and Telecommunications Law Review 13(2), 41-51, p. 42.

[64] G Smith, ‘Here, there or Everywhere? Cross-border Liability on the Internet’ (2007) Computer and Telecommunications Law Review 13(2), 41-51. Also, Case C-68/93Shevill v Presse Alliance SA.

[65] [1999] 4 All ER 342.

[66] (1894) 38 SJ 234.

[67] Law Commission, Defamation and the Internet A Preliminary Investigation (2002) p. 11.

[68] [1992] 2 AC 343.

[69] 129 F.3d 327 (4th Cir. 1997).

[70] [2001] EWCA Civ 1805.

[71] Duke of Brunswick v Harmer (1849) 14 QB 185.

[72] Directive 2000/31/EC, recital 22.

[73] Case C-68/93.

[74] Law Commission, Defamation and the Internet A Preliminary Investigation (2002) p.29.

[75] S James, ‘Tightening the Net: Defamation Reform and ISPs’ (2012) Entertainment Law Review 23(7), 197.

[76] [2012] EWHC 449 (QB).

[77] [1999] 4 All ER 342.

[78] [2013] EWCA Civ 68.

[79] Consultation Paper CP20/09 on Defamation and the internet: the multiple publication rule.

[80] B Jordan, ‘“Existing defamation law needs to be updated so that it is fit for the modern age” – the Government’s Consultation on the Multiple Publication Rule’ (2010) Entertainment Law Review 21(2), 41-47, p.44.

[81] Lord Atkinson, Adam v Ward [1917] AC 309 at 334.

[82] S James, ‘Tightening the Net: Defamation Reform and ISPs’ (2012) Entertainment Law Review 23(7), 197.

[83] Whatconstitutes ‘public interest’ reasons is still not entirely clear.

[84] S James, ‘Tightening the Net: Defamation Reform and ISPs’ (2012) Entertainment Law Review 23(7), 197.

[85] Section 5(3) Defamation Act 2013.

[86] Section 5(12) Defamation Act 2013.

[87] A Mullis, R Parkes & G Busuttil, Gatley on Libel and Slander (2013, 12th edn, Sweet & Maxwell Ltd, UK), 6.40.

[88] A Mullis, R Parkes & G Busuttil, Gatley on Libel and Slander (2013, 12th edn, Sweet & Maxwell Ltd, UK), 6.39.

[89] Mullis, Parkes, and Busuttil.

[90] A Mullis, R Parkes & G Busuttil, Gatley on Libel and Slander (2013, 12th edn, Sweet & Maxwell Ltd, UK).

[91] Section 8 Defamation Act 2013.

[92] Section 8(4) Defamation Act 2013.

[93] Discretionary exclusion of time limit for actions for defamation or malicious falsehood.

[94] Section 8(6)(a) Defamation Act 2013.

[95] A Mullis, R Parkes & G Busuttil, Gatley on Libel and Slander (2013, 12th edn, Sweet & Maxwell Ltd, UK).

[96] i.e. Switzerland, Iceland and Norway.

[97] Section 9(2) Defamation Act 2013.

[98] A Mills, ‘The law applicable to cross-border defamation on social media: whose law governs free speech in ‘Facebookistan’?’ (2015) Journal of Media Law, 7(1), 1-35.

[99] A Auda, ‘A Proposed Solution to the Problem of Libel Tourism’ (2016) Journal of Private International Law 12(1), 106-131, p. 112.

[100] A Mills ‘The law applicable to cross-border defamation on social media: whose law governs free speech in ‘Facebookistan’?’ (2015) Journal of Media Law, 7(1), 1-35.

[101] A Auda, ‘A Proposed Solution to the Problem of Libel Tourism’ (2016) Journal of Private International Law 12(1), 106-131.

[102] Section 10(1) Defamation Act 2013.

[103] Section 5(2) Defamation Act 2013.

[104] Section 13(1) Defamation Act 2013.

[105] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123.

[106] A Mullis & A Scott, ‘Tilting at Windmills: the Defamation Act 2013’ (2014) Modern Law Review 77(1), 87.

[107] A Mullis, R Parkes & G Busuttil, Gatley on Libel and Slander (2013, 12th edn, Sweet & Maxwell Ltd, UK).

[108] [2001] EWCA Civ 1805.

[109] A Mullis & A Scott, ‘Tilting at Windmills: the Defamation Act 2013’ (2014) Modern Law Review 77(1), 87.

[110] A Auda, ‘A Proposed Solution to the Problem of Libel Tourism’ (2016) Journal of Private International Law 12(1), 106-131.

[111] A Bennis, ‘Realism about Remedies and the Need for a CDA Takedown: A Comparative Analysis of § 230 of the CDA and the U.K. Defamation Act 2013’ (2015) Florida Journal of International Law 27, 297.

[112] A Mullis & A Scott, ‘Tilting at Windmills: the Defamation Act 2013’ (2014) Modern Law Review 77(1), 87.

[113] A Mullis & A Scott, ‘Tilting at Windmills: the Defamation Act 2013’ (2014) Modern Law Review 77(1), 87.

[114] Law Commission, Defamation and the Internet A Preliminary Investigation (2002).

[115] A Mullis & A Scott, ‘Tilting at Windmills: the Defamation Act 2013’ (2014) Modern Law Review 77(1), 87, p.101.

[116] T Ludbrook, ‘Defamation and the Internet: where are we now and where are we going: Part 2: where are we going? (2004) Entertainment Law Review 15(7), p.210.

[117] J Agate, ‘The Defamation Act 2013 – Key Changes for Online’ (2013) Computer and Telecommunications Law Review 19(6), 170-171.

[118] C Coors, ‘Opinion or Defamation? Limits of Free Speech in Online Customer Reviews in the Digital Era’ (2015) Communications Law 20(3), 72-77.

[119] A Mullis & A Scott, ‘Tilting at Windmills: the Defamation Act 2013’ (2014) Modern Law Review 77(1), 87.

[120] J Agate, ‘The Defamation Act 2013 – Key Changes for Online’ (2013) Computer and Telecommunications Law Review 19(6), p.170.

[121] A Mullis & A Scott, ‘Tilting at Windmills: the Defamation Act 2013’ (2014) Modern Law Review 77(1), 87.

[122] European Convention on Human Rights. Article 8 protects the right to respect for private life. The Strasbourg Court has recognised reputation as an aspect of an individual’s private life.

[123] A Mullis & A Scott, ‘Tilting at Windmills: the Defamation Act 2013’ (2014) Modern Law Review 77(1), 87.

[124] A Mullis & A Scott, ‘Tilting at Windmills: the Defamation Act 2013’ (2014) Modern Law Review 77(1), 87.

[125] A Auda, ‘A Proposed Solution to the Problem of Libel Tourism’ (2016) Journal of Private International Law 12(1), 106-131.

[126] A Mills ‘The law applicable to cross-border defamation on social media: whose law governs free speech in ‘Facebookistan’?’ (2015) Journal of Media Law, 7(1), 1-35.

[127] A Mills ‘The law applicable to cross-border defamation on social media: whose law governs free speech in ‘Facebookistan’?’ (2015) Journal of Media Law, 7(1), 1-35.

[128] Pending the execution of Brexit. In 2016, UK voted to be out of the EU in a nation-wide referendum.

[129] A Auda, ‘A Proposed Solution to the Problem of Libel Tourism’ (2016) Journal of Private International Law 12(1), 106-131, p. 113.

[130] D Hooper et al, ‘Defamation Act 2013 – what difference will it really make?’ (2013) Entertainment Law Review 24(6), 199-206.

[131] Law Commission, Defamation and the Internet A Preliminary Investigation (2002).

[132] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123.

[133] A Bennis, ‘Realism about Remedies and the Need for a CDA Takedown: A Comparative Analysis of § 230 of the CDA and the U.K. Defamation Act 2013’ (2015) Florida Journal of International Law 27, 297.

[134] (1995) 23 Media L Rep 1794.

[135] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123.

[136] 129 F.3d 327.

[137] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123.

[138] 129 F.3d 327.

[139] A Bennis, ‘Realism about Remedies and the Need for a CDA Takedown: A Comparative Analysis of § 230 of the CDA and the U.K. Defamation Act 2013’ (2015) Florida Journal of International Law 27, 297.

[140] See Electronic Commerce Directive, supra note 22, Art. 14.1(a).

[141] M Thompson, ‘Beyond Gatekeeping: The Normative Responsibility of Internet Intermediaries’ (2015) Vand. J. Ent. & Tech. L. 18(4), p. 806.

[142] ECTA 2002 s.73(1).

[143] ECTA 2002 s. 74.

[144] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123, p.132.

[145] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123, p.132.

[146] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123.

[147] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123.

[148] M Araromi, ‘Determining the liabilities of internet service providers in cyber defamation: a comparative study’ (2016) Computer and Telecommunications Law Review 22(5), 123.

[149] Defamation Act 2013.

[150] C Coors, ‘Opinion or Defamation? Limits of Free Speech in Online Customer Reviews in the Digital Era’ (2015) Communications Law 20(3), 72-77, p.75.

[151] C Coors, ‘Opinion or Defamation? Limits of Free Speech in Online Customer Reviews in the Digital Era’ (2015) Communications Law 20(3), 72-77, p.75.

[152] A. Mullis and A. Scott, ‘Worth the Candle? The Government’s Draft Defamation Bill’ (2011)

Journal of Media Law 3(1), p.15.

[153] Defamation Act 2013.

[154] A Auda, ‘A Proposed Solution to the Problem of Libel Tourism’ (2016) Journal of Private International Law 12(1), 106-131.

[155] A. Mullis and A. Scott, ‘Worth the Candle? The Government’s Draft Defamation Bill’ (2011)

Journal of Media Law 3(1), 1-17.

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