The Human Rights Joint Committee said that the draft Defamation Bill should be amended and has raised concerns about the prospect of website operators believing that lawful defamatory material is in fact unlawful.

"We think there is a real risk that website operators will be forced to arbitrate on whether something is defamatory or lawful, and will to readily make decisions on commercial grounds to remove allegedly defamatory material rather than engage with the process," the Committee said in a report detailing its scrutiny of the draft Bill.

"As drafted, Clause 5 risks removing material from the internet, which, although it may be defamatory, may be lawful if a relevant defence applies. Material which is lawful may be suppressed because website operators are served with such notices," it added.

Under the Defamation Bill people who have been allegedly defamed on websites would be able to bring an action for defamation against website operators under certain circumstances.

However, website operators can generally defend themselves against such claims if they can "show that it was not [them] who posted the statement on the website", providing that it is possible for those suing to identify the individual who posted the comments, and if the website operator has responded to a "notice of complaint" about the comments in line with as-yet-to-be-determined regulations.

Those regulations could set out how website operators should respond to requests to remove comments or set new obligations requiring them to provide details of the identity of website comment posters to those who have been allegedly defamed, according to the draft Bill.

The Human Rights Joint Committee said, though, that the ability for website operators simply to delete defamatory material in accordance with the Clause 5 provisions was wrong. It said that even if material is defamatory in nature it may not always be right for the material to be deleted.

Under the EU's E-Commerce Directive website operators are obliged to remove or disable access to unlawful content that they host if they have actual knowledge that the content exists. The Committee said that, under the terms of the draft Bill, website operators could remove defamatory material from their site without it necessarily being unlawful. It urged the Government to change the Bill to reflect existing EU standards.

"We asked the Government to consider redrafting Clause 5, so as to raise the threshold from one of 'defamatory' to 'unlawful', which means complainants would have to consider if any defence applied to the posted statement, and which would bring the clause into line with Regulation 19 of the E-Commerce (EU Directive) Regulations," the Committee said.

"The use of 'defamatory' rather than 'unlawful' in this context presents a difficulty in terms of consistency with Regulation 19 of the E-Commerce (EU Directive) Regulations. Regulation 19 restricts liability of web providers to instances where they have actual knowledge of the "unlawful activity". By contrast, Clause 5 only requires a claimant to demonstrate why a statement is defamatory. The effect of the use 'defamatory' rather than 'unlawful' means that claimants would not have to consider if any defence were applicable," it added.

Under the Bill there are a number of defences to defamation laid out that would allow libellous comments posted on websites to remain. A defence exists if comments made are "substantially true" or if they are expressed as an opinion which an "honest person could have held ... on the basis of [either] any fact which existed at the time the statement complained of was published [or] anything asserted to be a fact in a privileged statement published before the statement complained of".

Another of the proposed defences that will be available under the Bill is if a publisher acts responsibly when publishing defamatory material on an issue of public interest, which currently exists as a result of case law and is referred to as the 'Reynolds defence'.

The Human Rights Joint Committee said, though, that the Reynolds defence is too complicated and urged the Government to scrap plans to write it into statute and replace it with a plain public interest defence instead.

"We do not think that the retention of the Reynolds checklist of factors will bring about the much-needed rebalancing of the law on defamation in favour of the right to freedom of speech in Article 10 [of the] ECHR (European Convention on Human Rights)," the Committee said. "We think that to retain these factors will only perpetuate the difficulties already manifest in practice."

"We note that the Government has indicated in its response to our letter that it is currently considering how best to respond to proposals for a new public interest defence. We therefore recommend that the Government take this opportunity to abandon the statutory checklist of factors in favour of clear, unambiguous defence of public interest," it added.

In a separate report, the Lords Select Committee said (9-page / 101KB PDF) that it too was "not persuaded" that the way the Reynolds defence is to be written into the Bill would "provide a sufficiently robust and succinct defence of publication in the public interest".