But despite a recent landmark High Court ruling in which Nicola Brookes won a battle to reveal the identities of those who tormented her on Facebook (see What’s New, 11 June), leading media lawyers have warned that the proposed legislation is unlikely to have the effect on ‘trolls’ that many expect, with its crosshairs focussed more on clarifying the limits on website operator liability.

Hiding behind anonymity

David Engel, head of the reputation protection and media litigation team at London-based law firm Addleshaw Goddard commented: ‘Where a website operator refuses voluntarily to disclose the identity of a third party who has posted a defamatory statement on its website, it has always been possible to obtain an order from the court compelling it to identify the author of the posting.

‘What it will do is to limit the ability of people to hide behind anonymity to engage in unlawful conduct, such as the defamation of others. People may be less willing to libel others if their identity is known, or at least can be discovered, though whether this is likely in practice to raise the general tone of online debate is another matter.’

Mr Engel warned that social networking sites will be in the line of fire. ‘Companies like Twitter and Facebook will need to put in place notice-and-take-down procedures if they want to rely on this proposed defence in the Defamation Bill. In reality, this is no more onerous than similar procedures already required under copyright infringement legislation in the US, under the Digital Copyright Millennium Act 1998.’

Amber Melville-Brown, partner and head of media & reputation management at fellow London-based firm Withers, said: ‘The current proposals seek to walk the tightrope between chilling free speech and providing protection to the subjects of unjustified slurs. It adopts a carrot and stick approach, allowing web hosts to side-step liability provided they comply with a notice and take down procedure.’

Scourge of trolls

Donal Blaney, principle and director at niche law firm Griffin Law, suggests that the government’s spin doctors have been desperate to promote the view that the Defamation Bill will end ‘scourge of internet trolls’. He wrote in the Daily Mail newspaper: ‘The Defamation Bill is -- as the name suggests -- only about defamatory statements. It will not cover comments that are offensive, unpleasant or constitute harassment, breach of confidence or an invasion of privacy -- and the bulk of trolls' comments are in those categories as opposed to being defamatory as such.’

Mr Blaney also criticised the wording used in the bill: ‘A statement will not be defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. What constitutes seriousness is not defined, but the bill is designed to ensure that there are fewer defamation claims in the future, not more.’