Mumsnet was sued by Gina Ford, who is famous for espousing
strictly regimented baby routines, over comments made in the site
forums. The long-running case has been settled with a Mumsnet
apology and a payment to Ford, but Mumsnet founder Justine Roberts
has asked the DCA to reform the law.
"Though we don't accept that any of the comments made on Mumsnet
were defamatory, we took the decision to settle at least in part
because of the distinct lack of clarity about how the defamation
law applies to web forums,"
Roberts wrote on her blog for Guardian Unlimited.
"Put simply, libel law has not caught up with the digital age.
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," she wrote.
Roberts, a former football journalist, said in the blog that she
has asked the DCA to review the law. "This week Mumsnet has written
to the Department for Constitutional Affairs urging the Government
to reconsider this area in its forthcoming consultation on
defamation," she wrote.
When websites like Mumsnet allow users to post comments and do
not check those comments before they appear on the site, the UK's
Defamation Act and E-commerce Regulations protect the operator of
the site: if defamatory comment is posted by a user, the operator
escapes liability provided that, in the event of a complaint, the
operator removes or blocks access to the comment
"expeditiously".
Speaking to OUT-LAW today, Roberts explained her dilemma: "How
expeditious is expeditiously?" she asked. "We settled because there
were some comments left up there for longer than 24 hours – though
not much longer than 24 hours."
Without useful case law to guide them, Ford's lawyers could
argue that this period was longer than "expeditious" while Roberts
lawyers could argue that it was not; but going to court to resolve
that argument "would be entering a complete lottery," said
Roberts.
"We're not a great big newspaper site with 24-hour access to
legal advice," she said. "We need some clarity."
There is one reference in UK legislation to a fixed period for
the removal of internet postings. It appears in the Terrorism Act.
This legislation, passed last year, creates offences relating to
the encouragement of acts of terrorism and the dissemination of
terrorist publications. It contains a notice and takedown regime
that applies to website operators. A police constable may serve a
notice requiring the modification or removal of offending material
within two days.
The effect of any failure to remove or modify the materials
within the two-day period, in the absence of "reasonable excuse,"
is that the website operator will be deemed to have endorsed the
offending materials and faces a maximum penalty of seven years in
prison.
David Barker, a partner with Pinsent Masons, the law firm behind
OUT-LAW.COM, said that Roberts could have made an argument that
Parliament has deemed two days to be a reasonable period to allow
for the removal of an even more damaging form of content than
defamatory words. And so, by analogy, two days might be soon enough
in cases such as this. "But Roberts is right that this is one of
the law's grey areas," he said.
"Nobody knows for certain how fast is fast enough when removing
content," said Barker. "The problem is that the Government will no
doubt regard it as a dilemma for the courts to solve, relying on
that old legal cliché that every case turns on its facts."
For the first time since the controversy began, Mumsnet users
will be able to comment on Ford and her theories, though they have
been asked to keep comments from becoming personal.
Roberts said in her blog that the system of 'notice and
takedown' is not adequate for internet publishing. "In any case,
notice and takedown is a pretty poor defence of the principle of
free speech since, in practice, sites such as Mumsnet, confronted
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
result is that freedom of expression is being severely
curtailed."
She told OUT-LAW that while she was not insured for the risk of
a libel suit at the time of the complaint. The cover cost between
three and five thousand pounds, she said.
