A print law in a digital age: why libel law needs updating

Mumsnet, a community website where women give advice, support and friendship, has settled its long running dispute with controversial childcare guru, Gina Ford, by apologising for disparaging comments made about her by some of our users and paying a contribution to her legal costs.

Though we don’t accept that the comments made on our boards about Ms Ford were defamatory, we settled in part because of the distinct lack of clarity about how the defamation law applies to web forums.

It regards a bulletin board just as it does a newspaper or a book, which is a bit like trying to use a set of railway signals to control the air traffic over Heathrow – the principles may be fine, but different forms of communication, just like different forms of transport, require a different approach.

Where do websites stand regarding potentially defamatory comments? Like most bulletin board operators, Mumsnet relies on a strategy of “notice and takedown” on its pages. In other words, if an aggrieved person complains about a posting, we’ll take it down if it breaches our abuse policy – that is, if it’s a personal attack and/or defamatory.

But under the Defamation Act 1996, nonauthors can still be held liable if they fail to expeditiously remove comments someone thinks are defamatory. So it comes down to how expeditious is expeditious?

Given the costs in time and money, we weren’t prepared to go to court to find out.

We have a culture on the internet where the default position is not free speech but censorship.

The de-facto result of the current law is that sites such as Mumsnet, with a huge volume of daily postings and a defamation law which is open to interpretation, will always remove comments that are complained about, without much regard to their legitimacy. The alternative is to risk a law suit.

Three areas need looking at:

  • Guidance is needed on notice and takedown – how expeditious is expeditious?
  • The context of potentially defamatory comments should be taken into account in law. If a single poster makes a defamatory comment but is immediately rebutted by a large number of users, should it be considered as defamatory?
  • An overall consideration is needed of whether bulletin boards should be held responsible for comments posted by others.

In the USA they are not – they are protected by an innocent dissemination defence.

Balancing the individual’s right to protect their reputation against the rights of others to freedom of expression is a tricky business, but until the libel laws are reformed that balance will not be struck in the right place.

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