Welcome 2014. Welcome the new Defamation Act

OK, so the new Defamation Act  probably wasn’t the first thing on your mind when you woke up on January 1st but along with all the hangovers and New Year's resolutions, England did indeed get a new and much over-due legal framework for libel and defamation. Since this is the kind of thing that we take seriously at Patient Opinion we thought you might like to hear our take on the Act and what its effects might be.

Overall the Defamation Act seems a sensible attempt to try and get the archaic and widely abused English libel laws fit for  purpose in the 21st century.  If you want a good summary of the main legal points then here’s one from law firm Bevan Brittan.

For providers of services the most important change is probably Section 5 which can make it easier to find out who is behind anonymous comments. To do this a complainant needs to contact the primary publisher of the comment i.e. the platform that first published the comment. The publisher can then choose either to defend the comment using the stronger free speech defences embodied in the new law or to opt for a Section 5 defence.  Since the aim of Section 5 is to take the platform provider out of the equation by putting the complainant and the author directly in touch with each other we think that this is likely to be used widely by feedback platforms (though not necessarily by Patient Opinion).

If the  publisher opts to follow Section 5 then they have to contact the author and offer them a number of options:

• The author can ignore the email from the publisher. This will trigger the publisher to automatically take down of the story
• The author can ask the publisher to take the comment down.
• The author can ask the publisher to leave the posting up but give permission for their contact details to be forwarded to the complainant. The author and the complainant then negotiate (with or without court intervention) to decide whether the story remains public or is taken down
• The author can refuse permission to take the story down whist also refusing permission for their personal details to be forwarded to the complainant. The complainant can then secure a Court Order compelling the publisher to release details of the author.

Section 5 is clearly designed to make life harder for ‘trolls’, those people who delight in making  vitriolic comments from behind a cloak of anonymity.  Unfortunately an unintended consequence might be to make it easier for unscrupulous service providers to dispute any seriously negative comment. Most authors on Patient Opinion already feel vulnerable and quite possibly ill. When confronted by a legalistic request to substantiate what they have said or face prosecution then we think many authors will grudgingly acquiesce to their comments being taken down even when they are entirely valid. We also think it plausible that new services will arise that, for a fee, will scour the web for all negative comments about a given person or provider and then issue automated ‘substantiate or take down’ requests to platforms like Patient Opinion.  The consequence would be a chilling effect on the very expression of legitimate opinions that the Act is supposed to strengthen. 

Standing up for patients, carers and staff who want to express legitimate concerns about aspect of care is absolutely central to what Patient Opinion is about. Fortunately we believe that most  service providers will not want to adopt an industrialised approach to eliminating negative comments and those that do might well be deterred by us publishing a judicious league table of providers issuing the highest proportion of ‘take down’ requests. In addition our Advanced Moderation model (which we currently use throughout Care Opinion but not Patient Opinion) shares responsibility for publication with the service provider that is being commented on. If the provider chooses to restrict publication from the public view then:

• We automatically send the story to the CQC together with any comment the provider wishes to add.

• We publish a page that says "XXX has chosen to restrict publication of this story for the following reasons [...]. It has been shared with CQC"

This makes it very clear when a service provider has chosen not to publish a comment whilst also removing any possibility of them being defamed.

How the Act will work in practice is of course still unclear and our fears may be misfounded.  As so often the legal framework provided by the law only defines the outer limit of what is possible. So we will have to wait to see the real effect of the Act as it develops over the next months and years.

But here at Patient Opinion we are determined to use the new framework provided by the Act to maintain and expand our even-handed approach to the expression of legitimate opinion and to do this in ways that maximise the chance that author’s stories get responses and where appropriate, trigger improvements.