The United Kingdom has a heavy-handed government when it comes to passing laws. The latest dash to madness is the abomination known as the Defamation Act of 2013. It is one of the worst internet laws I’ve seen in a long time.
Relevant To You
Let’s start with a fundamental question. If you are in Los Angeles, why should you care about this law? Well, there is some thought your site could run into problems if you have members and visitors from the United Kingdom. Even if you don’t, this law is most likely the first of many that will take this new approach, and it is presents what may be the final nail in the coffin for anonymity online.
The problem with the Defamation Act 2013 is it requires sites to identify and verify the real identity of their users. Let me say that again. You must give your real name AND have it verified before most sites will allow you to post. Does this apply to:
- Forums – Yes!
- Social Media – Yes!
- Facebook – Yes!
- Twitter – Yes!
- Boards – Yes!
The law applies to any site containing user-generated content.
So, how could a defamation law be causing so many problems? Well, defamation is a civil action for slandering another person. If I slander you on, for example, a forum, you can hire an attorney and sue me for monetary damages.
Here is where things get a bit odd.
How do you find out exactly who I am? The only way to do it is to force the site to divulge my identity. Traditionally, this would be done through a legal request known as a subpoena. More likely, you would just sue the site as well, and the site would then give up the information during the lawsuit.
The new UK defamation law takes a different approach. It gives sites immunity from liability for slander so long as the site helps the allegedly slandered person identify the party publishing the nasty comments. This process begins with a takedown notice much like one sees in DMCA copyright disputes.
Now here comes the knife in the back for site operators. Under the Defamation Act of 2013, the site must provide the genuine and correct identity of the member who posted the allegedly defamatory statement. If the site does not do this, then it loses the lawsuit immunity. This provision effectively means any site allowing user-generated content must identify the correct name of each user and verify it. An example can reveal how this might play out.
Let’s assume you and I are on a political forum. I’m conservative, and you are liberal. We get into a fight over…oh, let’s say abortion. I call you a baby killer. You call me a hater of women. I suggest in not so delicate terms that you are a promiscuous young lass infested with an impressive variety of specimens rarely scene outside a medical lab due to said promiscuity. This description does not sit well with you.
You hire an attorney to sue me for defamation. Under the new UK law, you would serve a notice to the agent for the forum and demand my identity. If the forum provides you with my real name and identifying information, you are prohibited from suing the website. If it just gives you a username I picked out when signing up, the forum can be dragged into the defamation lawsuit.
What is the practical effect of this law? Well, it creates a tremendous burden for website operators. You will need to employ a process verifying that every person signing up for a new account is providing their real personal information. To do anything less exposes you to potential liability down the road.
Put another way, we are talking about the end of anonymity on the web in relation to any interactive site.
In truth, this may not bother you. It should. The web is the last real medium for free speech and political debate. Governments do not care for such mediums because they are hard to control. Just look at the Arab Spring as an example.
And what about the poor defamed individuals? Is this not a law to help them? Yes, but it is not necessary. One can always subpoena the identity of a person using a site. Even if the site only has the username, they should also have the IP address for the user. IP addresses are as good as a name in most cases.
If you think the government is benign, you are wrong. History shows it is not. In the U.S., the exploits of Richard Nixon are well known, and one needs only review the stunning NSA disclosures by Snowden to ascertain the online monitoring efforts of the government. Last year, the IRS essentially hacked the notes and information of journalist in what amounted to a raid on the Associated Press. Whatever your political views, this should trouble you.
Is the UK Defamation law a one-off act? It is at the moment, but look for governments everywhere to follow this approach. This approach gives them control over the web. Control is power.
Richard A. Chapo, Esq.
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