The Conservative / Liberal Democrat coalition have produced a seriously flawed attempt to reform England's appalling ""Libel tourism" law.
However Clause 5 Operators of websites is a direct attack on this Spy Blog blog website, on our Twitter feed and on any discussion forum where we and our anonymous or pseudo-anonymous commentators choose to exercise our rights of free speech.
Operators of websites
(1) This section applies where an action for defamation is brought against the
operator of a website in respect of a statement posted on the website.
(2) It is a defence for the operator to show that it was not the operator who posted
the statement on the website.
(3) The defence is defeated if the claimant shows that--
(a) it was not possible for the claimant to identify the person who posted
In most cases Spy Blog cannot "identify the person" who posts a Comment on this blog, so the Claimant will automatically have defeated the defence in Clause 5 (2)
This clause 5) (3) (a) must be removed from the final legislation.
(b) the claimant gave the operator a notice of complaint in relation to the
(c) the operator failed to respond to the notice of complaint in accordance
with any provision contained in regulations.
(4) A notice of complaint is a notice which--
(a) specifies the complainant's name,
(b) sets out the statement concerned and explains why it is defamatory of
(c) specifies where on the website the statement was posted, and
(d) contains such other information as may be specified in regulations.
(5) Regulations may--
(a) make provision as to the action required to be taken by an operator of
a website in response to a notice of complaint (which may in particular
include action relating to the identity or contact details of the person
who posted the statement and action relating to its removal);
(b) make provision specifying a time limit for the taking of any such action;
(c) make provision conferring on the court a discretion to treat action taken
after the expiry of a time limit as having been taken before the expiry;
(d) make any other provision for the purposes of this section.
(6) Regulations under this section--
(a) may make different provision for different circumstances;
(b) are to be made by statutory instrument.
(7) A statutory instrument containing regulations under this section is subject to
annulment in pursuance of a resolution of either House of Parliament.
(8) In this section "regulations" means regulations made by the Secretary of State.
Note that the web site operator's defence fails, if even one single provision of the as yet undefined Regulations is not complied with, to the letter.
Note the plan to force web site operators to hand over "other details" i.e. hidden email registration details and IP addresses etc. of "anonymous" commentors.
Why not spell out exactly what these Regulations are now, on the face of the Bill ?
Why should these be left to Statutory Instruments ? Such Secondary legislation is never debated properly, and it cannot be amended even slightly, only passed or rejected, almost always by a handful of whipped MPs or Peers, rather than by the full House of Commons or House of Lords.
The biggest threat to website operators is not legal action in Court, but the threat of huge legal costs, regardless of whether they win or lose in court.
Where is the protection for website operators / ISPs from rapacious shyster lawyers and their rich clients, who legally harass them with threatening letters or emails, without ever coming to court ?
Note that this Bill also abolishes the Reynolds Defence and also abolishes the common law defence of justification.
Could someone explain exactly what the nonsensical Clause 10 means ?
1) 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.
So the Court does have jurisdiction if it is "not reasonably practicable for an action to be brought against..." - therefore no Court case ?
But it does not have jurisdiction if it is is "reasonably practical..." - therefore no Court case ???
Who, apart from the "author, editor or publisher" is this Clause 10 meant to cover ? Everyone else in the universe ?