Defamation Bill

Debate between Lord Allan of Hallam and Lord Lucas

Wednesday 19th December 2012 Grand Committee

[Lord Lucas]

We are dealing with the web operator as a conduit and not as a publisher. If I want to make a particular statement about a company that I feel has wronged me, I will do so using public media such as Facebook, Twitter or other sites on which I might post a comment. That is me making that statement. If I am identifiable, which I think is quite proper, then the action should be against me. Otherwise, it means that those who are behaving badly and wish to hide that bad behaviour can simply wipe all record of my complaint off all public websites without any risk or trouble to themselves. I would say that it is in the public interest that I make my views on this particular company known, but I am going to be deprived of all means of doing so in an electronic world because I will have no access to what becomes the medium of communication, because as soon as I say anything there the company that I have complained about can wipe it out. That seems to me an entirely unreasonable situation.

We have to recognise that we are dealing, as the noble Baroness, Lady Hayter, said, with a different world and a different way of doing things and that if we want news of bad practice to spread, we have to allow it to be published. Allowing it to be published means holding harmless those who are acting as a conduit. I am a publisher and recognise that if I publish something unpleasant about some school or person then I, as a publisher, take that on the chin. That is part of my remunerated business. However, the owners of Twitter are getting no benefit from the fact that I have tweeted something on it—there is no revenue with which to offset the cost of establishing that I have a right under law to say what I have said, so they will immediately take it down, if complained against, unless we provide them with some kind of “hold harmless” defence. So it is very important that the conduits, if they behave well, establish the identity and share it with the complainant, and can continue to publish until the point has been reached where it has been established in a court of law, or by agreement or otherwise, that what has been said is defamatory.

I agree with the noble Baroness, Lady Hayter, that it is very important that, where something has been said about a company or a person that is considered defamatory, a statement from the person who is being defamed should be published alongside the original statement. That is a relatively easy technical thing to do, and I do not think people should have to wait seven days. It should be relatively automatic. These days, one day—certainly one working day—is enough to do that. That should be an automatic right, because it is easy to do and balances things reasonably.

I am also interested in the question of moderation, which has been referred to. The status of moderation under this clause seems to be very uncertain. By moderating to any extent, do you become the publisher of what has been said? A lot of sites will just allow unrestricted publication, and that appears to be safe, but we and many other sites will moderate; that is, we will want to see what has been said before we decide that it can be published. If we moderate and then publish, have we assumed liability for what is said? Have we assumed a liability for checking it? If not, it becomes impossible to moderate and you are saying, “We wish the web to be entirely unmoderated and we think that the process of moderation is undesirable”. I am not sure that that is what the Government intend to say.

If you allow moderation, do you allow within that any kind of editing or advice? If someone posts a comment and it appears to be a statement of fact rather than opinion, are you allowed to say to that person, “You have not phrased this as a statement of opinion. If you resubmit it as a statement of opinion, we will publish it”. Is that taking responsibility for what as been said? I think of moderation as something we should encourage. It improves the quality of the web as a whole, although it is an expensive thing to do. We should be clear in this clause about the extent to which we are prepared to support and protect the process of moderation.

Lastly, I come back to what the noble Baroness, Lady Hayter, said about TripAdvisor. I think that it is barking up the wrong tree. I suggest that it employs what we have effectively used over many years and I will call the Good Schools Guide defence. If a school starts to complain about comments we have made, we merely post the fact that we are not prepared to allow comments on this school because we do not agree with the school’s policy on taking down comments. That is as good as anything. If TripAdvisor were to do that to a hotel, that would be worse than any comment that anyone could possibly publish. It would achieve the end result it wanted without pain.

[Lord Allan of Hallam]

My Lords, I also declare a considerable interest in that I work for Facebook, one of the web operators which may receive notices under subsection (5). In contributing to the debate, I am trying to bring some of the expertise that we have as operators of internet websites more generally to what is, I know, a complex and difficult debate and one which we make more complex and difficult by having fast-moving technology. In that respect, I shall touch first on the amendment which proposes that we should talk about electronic platforms rather than websites per se. In doing so, I will pick up on some of the other points made in the debate around whether websites are different and special; they may be or they may not.

There are essentially two classes of website. There are websites which are owned by a single organisation and over which that organisation has editorial control. It could be argued that such websites should be treated like a newspaper or any other form of media. Indeed, those websites are specifically excluded from having this defence because, under subsection (2), they are clearly the organisation that posted the statement in question to the website, so it runs the website and creates the content for it.

There is a whole class of other websites or platforms where the body which produces that platform has no direct interest in the content, exercises no editorial control and simply exists, as the noble Lord, Lord Lucas, described it, as a conduit that enables a citizen to speak with other citizens all over the world. These platforms have become tremendously successful precisely because they democratise speech in a way that was not previously possible because you needed a printing press or other expensive equipment. It is right that in the context of Clause 5 we should think about the position of those operators. That is much more widely recognised in law, if we look at the e-commerce directive, which has been very successful. It was designed precisely with the fact in mind that we have on the internet platforms the job of which is to connect people, but which are not responsible for the content being shared between the people connecting through these platforms. This covers a whole range of other areas such as copyright, illegal content and so on.

However, this does not mean it is a lawless space —that discussion was held earlier—in fact, it is a very lawful space. The operators have responsibility but the primary responsibility for content shared across a platform has to reside with the person who posted and shared that content. In that respect, Clause 5 takes us absolutely in the right direction. It directs platforms—the second type of website that is not editorially responsible—towards a regime within which it is in their interests to connect the poster of the content with the complainer about it and to seek to resolve the dispute between the two parties. Where that dispute cannot be resolved between them, the operator then has some responsibilities.