Talk about lighting the blue touch paper and then running away; just hours after handing over his report into press freedom last November, Lord Justice Leveson leapt on a plane to Sydney.
Now Leveson’s interrogator-in-chief Robert Jay QC has popped up to make his first public comment on media regulation all the way from South East Asia.
During a speech to lawyers in Singapore (which, incidentally, ranks 135 out of 179 countries in the Press Freedom Index), Jay called the British press “the most unruly and irreverent in the world”. Most of my journalist friends would regard this as a badge of honour.
According to The Times, Jay also called for a new law in which Internet Service Providers can be sued for allowing their customers to read defamatory comments online. In a discussion on internet regulation – a topic largely ignored by Leveson – he raised the possibility that ISPs be brought within the scope of publishers for the purposes of the law of defamation.
Realising, perhaps, the implications of this suggestion, Jay added “It would be fair to say that my internet ideas are somewhat embryonic and require further work.” Too right.
It is sadly the case that so-called internet trolls and cyber bullies cause untold misery and distress to their victims. Furthermore, individuals who are subject to repeated abuse and scurrilous allegations online often feel powerless to do anything about it.
It is also true that the UK’s defamation laws, which date back to 1849, are not fit for the digital age.
So, why does Jay single out Internet Service Providers? Perhaps, because claimants find it difficult to pin down the owners of the websites where defamatory material has appeared. Many blogs and forums are deliberately hosted in obscure jurisdictions and on untraceable domains and, even when material is removed from one website, it often appears elsewhere on another.
ISPs are not ‘publishers’ in the traditional sense – any more than a telephone company is a ‘publisher’ of what is said in a phone conversation. They do not own or operate websites or social networks but provide the infrastructure, or plumbing, which deliver online services to the end user.
Moreover, the likes of BT, Virgin and Sky are not in a position to know whether the material posted is defamatory or not, especially in the case of user-generated content. Where there have been complaints, the ISPs have a good track record of quickly taking down the offending material.
Allan Dunlavy, a lawyer at Schillings, said that the current position under English law is broadly sensible in that an ISP is not liable as a publisher or as a ‘mere conduit’ of information. Mr Dunlavy said that the wider European legal framework protects ISPs from being obliged to pro-actively monitor content. But, the more important developments relate to the obligations of websites, search engines and website hosts, who are more involved in publication of content, to ensure that their commercial operations and content are legally compliant and that creative thinking from advisors is crucial to innovate new legal and technical solutions to protect reputations online.
In 2012, the UK Government proposed a deal with the ISPs. The Defamation Bill offered to protect service providers from libel action if, in return, they disclose the identity and contact information of people who post defamatory comments.
While this is good news for the companies, there are real concerns that blanket laws designed to outlaw anonymity could lead to censorship or have unintended consequences.
Justine Roberts of Mumsnet is among those who’ve warned that sites like Mumsnet depend on users’ freedom to ask and give personal advice on an anonymous basis. You can imagine situations of domestic abuse where this is the case.
Then there is the impact such a move might have on whistleblowers, who may be much more reluctant to come forward if there’s a risk of their identity being revealed.
For me, this issue also goes to the heart of how the internet works.
Clearly, the web is not and cannot become a total law free zone. However, we do need to defend the principle of a vibrant, border-less, open internet which has given a voice to so many and generated so much creativity and innovation.
At heart, this debate is about how we strike the right balance between the right of someone to be protected from abuse and reputational harm, with the right to freedom of expression.
Mark Flanagan is Portland’s Partner for digital communications.
Our Disputes & Crisis unit watches the law and how it impacts our clients’ reputations. For more information please contact firstname.lastname@example.org.