Mumsnet was sued by Gina Ford, who is famous for espousing strictly regimented baby routines, over comments made in the site forums. The long-running case has been settled with a Mumsnet apology and a payment to Ford, but Mumsnet founder Justine Roberts has asked the DCA to reform the law.
"Though we don't accept that any of the comments made on Mumsnet were defamatory, we took the decision to settle at least in part because of the distinct lack of clarity about how the defamation law applies to web forums," Roberts wrote on her blog for Guardian Unlimited.
"Put simply, libel law has not caught up with the digital age. It regards a bulletin board just as it does a newspaper or a book, which is a bit like trying to use a set of railway signals to control the air traffic over Heathrow – the principles may be fine but different forms of communication, just like different forms of transport, require a different approach," she wrote.
Roberts, a former football journalist, said in the blog that she has asked the DCA to review the law. "This week Mumsnet has written to the Department for Constitutional Affairs urging the Government to reconsider this area in its forthcoming consultation on defamation," she wrote.
When websites like Mumsnet allow users to post comments and do not check those comments before they appear on the site, the UK's Defamation Act and E-commerce Regulations protect the operator of the site: if defamatory comment is posted by a user, the operator escapes liability provided that, in the event of a complaint, the operator removes or blocks access to the comment "expeditiously".
Speaking to OUT-LAW today, Roberts explained her dilemma: "How expeditious is expeditiously?" she asked. "We settled because there were some comments left up there for longer than 24 hours – though not much longer than 24 hours."
Without useful case law to guide them, Ford's lawyers could argue that this period was longer than "expeditious" while Roberts lawyers could argue that it was not; but going to court to resolve that argument "would be entering a complete lottery," said Roberts.
"We're not a great big newspaper site with 24-hour access to legal advice," she said. "We need some clarity."
There is one reference in UK legislation to a fixed period for the removal of internet postings. It appears in the Terrorism Act. This legislation, passed last year, creates offences relating to the encouragement of acts of terrorism and the dissemination of terrorist publications. It contains a notice and takedown regime that applies to website operators. A police constable may serve a notice requiring the modification or removal of offending material within two days.
The effect of any failure to remove or modify the materials within the two-day period, in the absence of "reasonable excuse," is that the website operator will be deemed to have endorsed the offending materials and faces a maximum penalty of seven years in prison.
David Barker, a partner with Pinsent Masons, the law firm behind OUT-LAW.COM, said that Roberts could have made an argument that Parliament has deemed two days to be a reasonable period to allow for the removal of an even more damaging form of content than defamatory words. And so, by analogy, two days might be soon enough in cases such as this. "But Roberts is right that this is one of the law's grey areas," he said.
"Nobody knows for certain how fast is fast enough when removing content," said Barker. "The problem is that the Government will no doubt regard it as a dilemma for the courts to solve, relying on that old legal cliché that every case turns on its facts."
For the first time since the controversy began, Mumsnet users will be able to comment on Ford and her theories, though they have been asked to keep comments from becoming personal.
Roberts said in her blog that the system of 'notice and takedown' is not adequate for internet publishing. "In any case, notice and takedown is a pretty poor defence of the principle of free speech since, in practice, sites such as Mumsnet, confronted with a huge volume of daily postings and a defamation law which is open to interpretation, will always remove comments that are complained about, without much regard to their legitimacy. The result is that freedom of expression is being severely curtailed."
She told OUT-LAW that while she was not insured for the risk of a libel suit at the time of the complaint. The cover cost between three and five thousand pounds, she said.