My Lords, I shall address my amendments in this group and reiterate that I have a considerable interest to declare in that I run the Good Schools Guide and, therefore, a website on which such comments are regularly posted.
So far as identity is concerned, I have a lot of sympathy with what the noble Baroness, Lady Hayter, said. I do not generally like people who hide behind anonymity on the web, although it has become a habit. One generally knows who one is talking to on Twitter, at least after a while, but there are other areas of the web, such as Mumsnet, where you do not have a clue and there is no indication of the identity of the person. Often that is just because people are talking more openly than they might if they were to be identified. They might say something about a shop that they use regularly or a school which their children attend which is helpful to other people to know, but which they would find it embarrassing to be linked back to.
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There will be many occasions when people will not want their identity to be made public for reasonably good reasons. The operator of a website is not likely to know the identity of the person who is posting. If they are reasonably well organised, they will have collected an e-mail address and verified it but people can pick up an e-mail address with great facility and it may be an address that has been used and discarded or is extremely hard to link back to a real identity. It may also be the case—it is probably generally the case—that disclosing an e-mail address would be an offence under the Data Protection Act. When challenged, an operator will want to communicate with the person who has put something up and say, “We have been challenged by the person you are talking about, and they say that you are defaming them; do you wish to stand up and be identified and take this on the chin yourself?”.
In most cases, I suspect that they will say no and then the comment will be taken down. However, suppose the person at the other end wants to stand by their comment. What position is the operator of the website in then? I do not see anything in the clause that allows the operator of the website to take steps to establish whether, in their view, a defamation has been committed or whether this is something under the public interest test that should be allowed to continue to be said, so that they decide to stand by the person who has made the comment, and to be held none the less harmless by the legislation.
For most websites—not so with us and schools—frankly, the effort required to verify to a legal degree the correctness of someone’s affirmation of what they have said, which is excused under Clause 3 or Clause 4 of the Bill, is far in excess of the value to the website of having the comment there. If there is no reasonable defence for the website operator, the default position will be that the comment will be taken down because it is far too much like hard work to do anything else.
Looking at that from the point of view of a complainant, a while ago I got taken in by a scam site called fly.co.uk. I have posted some comments on that site publicly and if the operator of the website were asked to take that down, I would like to be able to say,
“No, I have a clear case history here and I wish to defend my action”, so I would like the website operator to be held harmless if they decide to keep the comment online. It is not clear to me that any website operator would be in that situation. It is important to establish that we have a reasonable means of allowing comments which have been made in the public interest but which the person complained about is trying to wipe off the public record, to be reasonably left there without causing the website operator a great deal of expense and risk.