My dictionary has several definitions of ‘trolling’, but the one currently in the news is “to send an email with a contentious or offensive message intended to provoke outrage…in the hope of starting a heated debate.”
The new Defamation bill that had its second reading in the Commons on Tuesday takes aim at trolls. In a major reform of the libel laws, it will see a duty placed on internet service providers to try to identify internet trolls without victims needing to resort to costly legal action. Websites will also be given greater protection from being sued if they help to identify those posting defamatory messages. Introducing the bill justice secretary Ken Clarke told members: “Trolling is an extremely unpleasant, curious activity which some very nasty people appear to be going into. There have already been quite a lot of prosecutions for trolling, but we think the public are entitled to proper protection against it.”
The justice secretary went on to say: “The issue for our defamation laws is ultimately one of striking the right balance between protection of freedom of expression on the one hand and protection of reputation on the other.” Clause 1 of the bill states “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” Clauses 2 and 3 replace the common law defences of justification and fair comment with new statutory defences of truth and honest opinion. In clause 4 the bill introduces, for the first time, a statutory defence of responsible publication in the public interest. This is based on the common law defence that has been developed by the courts in recent years following the case of Reynolds v Times Newspapers.
For Labour, Sadiq Khan generally welcomed the new bill, particularly clause 6 which creates a new defence of qualified privilege on peer-reviewed material in scientific or academic journals. On trolling he said: “It is worth saying for clarity that the clause deals only with defamation cases. I would not want the public to think that it was a panacea for all sorts of outrageous behaviour that takes place on the internet.” He expressed concerns about seriously curtailed access to justice, as the recently passed Legal Aid, Sentencing and Punishment of Offenders Act will have a big impact on defamation cases. He also has reservations about clause 11 which removes the presumption in favour of jury trials in defamation cases.
In his introduction the justice secretary also said: “Nor can it be a matter of pride when powerful interests overseas with tenuous connection to this country use the threat of British libel laws to suppress domestic criticism in cases of so-called libel tourism.” This concern is addressed in clause 9, covering action against a person not domiciled in the UK or a Member State. The bill will next be considered in a Public Bill Committee which is expected to report by 26 June.
During the debate Conservative MP Amber Rudd drew attention to clause 13 which, in line with proposals to repeal a number of pieces of outdated and outmoded legislation, repeals The Slander of Women Act 1891. This Act provides that slander imputing unchastity or adultery to a female is actionable per se. Never applying to Scotland, she agreed that it is about time the rest of the UK followed suit.
