Facebook, Yahoo and ISPs plead for UK free speech

Facebook, Yahoo, AOL, Mumsnet and the ISP Association have written an open letter to prime minister David Cameron and justice minister Lord McNally, calling for online free speech to be protected in England.

The letter, published on Thursday, asks that the upcoming libel reform bill — being drafted (PDF) by Lord McNally — reflect the nature of blogs and online forums. As the law stands, there is a one-year limit for bringing a defamation claim after an offending remark is published, but every time an online comment is viewed it counts as a new publication and a potential new cause for a defamation lawsuit.

"We are writing to ask that you introduce urgent reforms in the government's proposed draft Defamation Bill to protect open discussion on the internet," wrote Facebook EU policy director Richard Allen, Yahoo UK and Ireland public policy director Emma Ascroft, AOL UK senior counsel Lisa Fitzgerald, ISP Association (ISPA) secretary-general Nicholas Lansman, and Mumsnet chief executive Justine Roberts. "The English law of defamation is having a disproportionate, chilling effect on online writers, e-communities and web hosts."

According to the signatories, present libel laws date back to 1849 and are not fit for the internet age. "Internet service providers can be held liable for comments they host and therefore are inclined to take down material or websites even before the writer or publisher has been made aware of a complaint," the signatories wrote. "Such intermediaries usually have no access to the background or relevant facts and should not be expected to play judge and jury in determining whether a writer's material is defamatory or not."

The companies also pointed out that, despite the accessibility of online blogs and forums from anywhere in the world, there are few restrictions on material published overseas sparking lawsuits in English courts. They called for the new Defamation Bill to protect ISPs from having to take down material without a court first determining whether or not that material is defamatory, and to introduce a "single publication rule and a limitation period of one year from original publication".

Yahoo operates several services in the UK where users can leave comments, ranging from Flickr to Yahoo Answers and news and sports message boards. According to Ascroft, the company has "had some concerns for a while about how the libel laws operate in practice".

"For the most part, the content our users generate is all fair comment," Ascroft told ZDNet UK on Friday. "Our concern is the way the libel laws have been evolving within the UK, encouraging intermediaries such as ourselves to take down content as a way of minimising liability for ourselves rather than dealing with each case on an individual basis.

"Our concern is not one of principle — of course individuals should have the right to defend their reputation — but we need to think about how the process balances freedom of expression and the ability to defend your reputation."

Ascroft noted that companies such as Yahoo do not have the full facts about each case, when presented with a demand that content be taken down. "We have to go only on the basis of what the claimant says," she said. "We're put in a position where we may have to make those judgements [and] we may then unfairly take down content that is in fact fair comment."

Libel law may be abused by people "who simply don't want people to say bad things about them", Ascroft added, while also pointing out that libel courts are sometimes not aware of the EU's e-Commerce Directive and the protection it is supposed to give intermediaries in such cases. "The solutions courts suggest is almost tantamount to monitoring the internet," she warned.

The open letter was drafted with the aid of the Libel Reform Campaign. A spokesperson for the Ministry of Justice said in a statement on Friday that the draft Defamation Bill would be published in the new year "for legislation as soon as possible after that".

"The aim of the justice secretary's review will be to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation," the statement read.