Did UK Gov't Already Effectively Outlaw Anonymity Online With Its New Defamation Law?

from the that's-a-problem dept

We just recently wrote about a report by the UK House of Lords that recommends ending anonymity online by requiring that any web services collect real names and information at signup, while then allowing users to use a pseudonym. The thinking, then, is that if there is a criminal act or other violation of the law, it's easier to track down who's responsible. As we noted, there are all sorts of problems with this kind of logic, including both massive chilling effects against free speech, and the simple fact that it's not nearly as hard as some technologically clueless people believe to track down online users, even if they're "anonymous." Either way, this proposal is a big problem, and EFF spoke out against the plan.

However, as Eric Goldman alerts us, it might already be too late in the UK. That's because of a little-noticed provision in the defamation law that was passed in the UK last year. As we've discussed for years, the UK has had terribly draconian defamation laws, that more or less put the burden on the accused to prove what they said wasn't defamation. This was incredibly plaintiff friendly and antagonistic to free speech. The situation was so bad that a whole campaign was mounted to finally update the UK's defamation laws, resulting in a big change that went into effect last year. Many of the new provisions of the Defamation Act 2013 were steps in the right direction, but Goldman noted one very problematic section concerning intermediary liability for defamation claims.

The law first sets up a problematic notice-and-takedown system, not unlike what we have in the US for copyright via the DMCA. As we've seen, such laws are widely abused, and Goldman expects the similar provisions of the UK defamation law will likely be abused. But, then it goes even further: if websites want to avoid liability, they have to help identify the users accused of defamation:
However, what’s really interesting about Section 5 is its bonus requirement for UGC websites to avoid defamation liability: they qualify for the act’s protection only if the defamation victim can find the user to sue him/her. The act doesn’t explicitly say what information about its users the website operator must give a defamation victim or when (and some of these requirements will be spelled out in regulations that are being developed), but to me the implication seems clear: if the website operator can’t provide authenticated identifying information about its users, the website operator will lose the act’s protection (unauthenticated information is useless to plaintiffs if falsified).
And with that, the incentives are clearly set up so that if you're a UK site, you pretty much have to do what the House of Lords is now suggesting should be required by law: obtain real name and contact info of users, if only to avoid liability from defamation lawsuits. The law has been in effect for about a year now, and it's unclear if many UK-based websites are aware of this provision, or even if it's been used. But, of course, it only takes one high-profile lawsuit to convince nearly every site that they need to start doing this as well.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    The Dude (profile), Aug 11th, 2014 @ 12:23pm

    That's a bummer man.

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Aug 11th, 2014 @ 12:27pm

    Look...

    When the colonies overthrew their oppressors the lamers back at home did shit... not that the current gaggle of maggots that call themselves Americans are any better nowadays, it does prove that those pesky Europeans are a bit more used to their slavery.

    Had it not been for the rest of the pesky warlike nations (USA, Russia...) they would have been stomped like a shit stain when Hitler was moving about.

    Unless everyone changes their government diapers soon, we are headed for a massive war that will not just end on one continent.

    It gets less and less difficult to infiltrate and subvert a government that is secretive and against guns for the citizens.

     

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  3.  
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    Roger Strong (profile), Aug 11th, 2014 @ 12:39pm

    This also shifts liability when defamation claims go wrong. In the inevitable cases where the wrong person is sued - because of someone posting on a web site with a false ID - the accuser can declare the web site at fault for handing them the false information.

     

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  4.  
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    observer, Aug 11th, 2014 @ 12:39pm

    Not that there'd be anything stopping you from signing up with a false name and address, but there's a lot of people this simply wouldn't occur to.

     

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  5.  
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    Anonymous Coward, Aug 11th, 2014 @ 12:40pm

    If this is the UK's plan to outlaw Anonymous by outlawing anonymity they're going about it all the wrong ways. We all know the only way to stop an Anon is to get past 7 proxies.

     

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  6.  
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    Paddywagon Driver, Aug 11th, 2014 @ 1:03pm

    Oh boy, I look forward to seeing Troll Trolleys circling around London, each seat fitted with manacles and gags.

     

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  7.  
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    Anonymous Coward, Aug 11th, 2014 @ 1:03pm

    Seven proxies

    The sony hacker who got caught used UK based HideMyAss.

    Seven proxies, or is it six proxies (?) is overkill but the writ of UK defamation law does not reach America.

    The reformed defamation act is still not in its substance equivalent with the actual malice standard and the third party immunity granted by § 230.

    The injustice in UK's libel law is that even a public figure is not required to prove that the statement was false and knowingly so.

     

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  8.  
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    Anonymous Coward, Aug 11th, 2014 @ 1:09pm

    perhaps a good thing would be to send this story to a couple of the UK Lords? from what i have read previously, the majority dont give a shit what happens or to who. maybe this could jog them a little?

     

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  9.  
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    Anonymous Coward, Aug 11th, 2014 @ 1:16pm

    Technically possible

    Article wrote:

    'and the simple fact that it's not nearly as hard as some technologically clueless people believe to track down online users, even if they're "anonymous."'

    Sorry, but what is the simple fact?

    An IP address is not a person, and it's easy to switch IP address and sanitize one's computer making forensic work very time consuming and expensive.

    I thought that the lesson of the copyright troll cases was that proving who did something online is very expensive and only possible under limited circumstances.

    if the same proof is required as in a civil copyright case, proving who posted a defamatory comment is virtually impossible unless someone confesses or historical evidence is discovered.

     

    reply to this | link to this | view in thread ]

  10.  
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    Duke (profile), Aug 11th, 2014 @ 2:54pm

    For anyone interested, the regulations the quoted article refers to are here, and there is some guidance from the Government here. I seem to remember picking up on this whole "attacking anonymity" thing back in 2012 when the Bill was being debated, pointing out how silly it is.

    The entire section is pretty silly as well - the circumstances when it applies are pretty narrow (there are all sorts of other situations when a website operator would be immune), and the way the regulations are drafted there may be situations where an operator could remove a comment, but in order to comply with the section they would have to inform the claimant that they hadn't. The regulations were really badly drafted (with only closed, private consultation).

    That said, as far as I know very few website operators knew or cared about them - most major sites have some sort of take-down system already, and defamation claims are so rare that it isn't worth the effort of setting up the automated systems required.

    the UK has had terribly draconian defamation laws, that more or less put the burden on the accused to prove what they said wasn't defamation. This was incredibly plaintiff friendly and antagonistic to free speech. The situation was so bad that a whole campaign was mounted to finally update the UK's defamation laws, resulting in a big change that went into effect last year
    I may be biased, but I think that almost every statement here is arguably false. But that's another story.

     

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  11.  
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    Mike Masnick (profile), Aug 11th, 2014 @ 4:55pm

    Re: Technically possible

    Sorry, but what is the simple fact?


    That regular detective work can often track down who is behind actions online.

    An IP address is not a person, and it's easy to switch IP address and sanitize one's computer making forensic work very time consuming and expensive.


    I'm not talking about IP addresses. I'm talking about *if* someone does something serious enough that really breaks the law, they almost always do *something* that leaves a trail to who they are. Very few people are actually skilled enough to be truly anonymous online.

    I thought that the lesson of the copyright troll cases was that proving who did something online is very expensive and only possible under limited circumstances.

    Yes. But that doesn't change the fact that said people can be discovered *if* it's serious enough.

    No one said it had to be easy. Just possible.

     

    reply to this | link to this | view in thread ]

  12.  
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    Mike Masnick (profile), Aug 11th, 2014 @ 4:57pm

    Re:

    The entire section is pretty silly as well - the circumstances when it applies are pretty narrow (there are all sorts of other situations when a website operator would be immune), and the way the regulations are drafted there may be situations where an operator could remove a comment, but in order to comply with the section they would have to inform the claimant that they hadn't. The regulations were really badly drafted (with only closed, private consultation).

    Good to know.

    I may be biased, but I think that almost every statement here is arguably false. But that's another story.


    You know I respect you and your knowledge of UK law, but could you, perhaps, give some details as to why/how the statement was false?

     

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  13.  
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    rapnel, Aug 11th, 2014 @ 5:16pm

    Re:

    No, dude. The empire strikes back. This is not a movie.

     

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  14.  
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    Duke (profile), Aug 12th, 2014 @ 1:08am

    Re: Re:

    I didn't want to go into details because I admit the arguments are fairly subjective; that English+Welsh defamation law was never as bad as it was made out to be, it didn't really put the burden of proof on a defendant any more than any other civil law does (just a very large financial burden on both), and the changes brought in by the Defamation Act 2013 - like this website operators one - were pretty minor.

    The big changes were the introduction of a single publication rule, and a presumption of not having a jury trial. The rest was mostly codifying the existing law (just to make things a little more confusing for defamation lawyers for a few years) and adding defences covering very narrow and rare situations - like this website operators one.

     

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  15.  
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    Dave Cortright (profile), Aug 12th, 2014 @ 9:15am

    The Internet has no borders

    So why would I—even if I were a UK citizen—operate a web site physically located in UK jurisdiction? There are plenty of hosting services in other places that actually respect privacy. All they are doing is driving businesses to set up shop elsewhere.

     

    reply to this | link to this | view in thread ]


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