07 April 2018

Doxing and Defamation

'Doxing: a conceptual analysis' by David M. Douglas in (2018) 18(3) Ethics and Information Technology 199–210 comments
Doxing is the intentional public release onto the Internet of personal information about an individual by a third party, often with the intent to humiliate, threaten, intimidate, or punish the identified individual. In this paper I present a conceptual analysis of the practice of doxing and how it differs from other forms of privacy violation. I distinguish between three types of doxing: deanonymizing doxing, where personal information establishing the identity of a formerly anonymous individual is released; targeting doxing, that discloses personal information that reveals specific details of an individual’s circumstances that are usually private, obscure, or obfuscated; and delegitimizing doxing, which reveals intimate personal information that damages the credibility of that individual. I also describe how doxing differs from blackmail and defamation. I argue that doxing may be justified in cases where it reveals wrongdoing (such as deception), but only if the information released is necessary to reveal that such wrongdoing has occurred and if it is in the public interest to reveal such wrongdoing. Revealing additional information, such as that which allows an individual to be targeted for harassment and intimidation, is unjustified. I illustrate my discussion with the examples of the alleged identification of the creator of Bitcoin, Satoshi Nakamoto, by Newsweek magazine, the identification of the notorious Reddit user Violentacrez by the blog Gawker, and the harassment of game developer Zoe Quinn in the ‘GamerGate’ Internet campaign.
The Scottish Law Commission's December 2017 report on defamation comments
In this Report, we recommend a number of important reforms to the law of defamation and verbal injury. Our aim is to modernise and simplify Scots law in these areas so as to ensure that it strikes the correct balance between the fundamental values of freedom of expression on the one hand and protection of reputation on the other. Achieving the right balance between these two principles is a particularly sensitive issue in the age of the internet and social media. Whilst defamation litigation has not been especially common in Scotland in recent years, the law on the subject is of considerable importance in modern society, not least because of the ease and speed with which information can now be transmitted. Whilst the internet has allowed people to communicate far more effectively and much more widely than ever before, it has also meant that reputations can be quickly and, in some cases, unfairly tarnished. This has given rise to new challenges for defamation law. We believe that our recommendations would serve to improve and strengthen the law in a modern context, as well as making it more accessible and easier to understand. 
Defamation may be described as the civil wrong committed when a person makes a false and damaging imputation against the character or reputation of another person.  The essence of what makes a statement defamatory is whether it would damage the reputation of the pursuer in the eyes of the ordinary reader, viewer, or listener. Verbal injury is a civil wrong analogous to, though distinct from, defamation. One important difference between these two civil wrongs is that in an action based on verbal injury the pursuer must prove that the defender acted with malice in the sense that he or she intended to cause injury by making the statement complained of; this is not (usually) a requisite of a successful action based on defamation. 
The general background to our project lies in the reforms made to defamation law in England and Wales by the Defamation Act 2013 (“the 2013 Act”). The 2013 Act was the culmination of a long-running civil society campaign for libel3 reform: this developed over the course of a decade or more in the years following the millennium.  The campaign was motivated by concerns over the practice described as ‘libel tourism’ and what was perceived to be its resultant chilling effect on freedom of expression. Another influence behind the campaign was concern over the increase in the volume of libel actions brought against nongovernmental organisations, scientists, and academics with a view, it was said, to suppressing legitimate criticism of authority and alleged abuses of power. A third factor leading to the campaign was the enactment by a number of legislatures in the United States of legislation designed to prevent the enforcement of libel judgments issued by courts in England and Wales. 
The civil society campaign and the political support it gathered led eventually to the enactment of the 2013 Act. It introduced important reforms intended to reset the law of defamation for modern times: amongst other changes in the law discussed more fully later in the present Report, the Act introduced a threshold requiring a claimant to show serious harm before an action could competently be brought; greater protection was provided for website operators; repeated publication would no longer trigger new limitation periods; and actions could be brought only if England and Wales was shown to be clearly the most appropriate jurisdiction for hearing them. 
The Scottish Government decided not to move to extend most of the provisions of the Act to this country, with the exception of a small number of provisions relating to privilege in academic and scientific activities. 
Background to this project 
Consultation on our Ninth Programme of Law Reform in 2014 elicited a substantial number of submissions proposing that we should examine the law of defamation in Scotland. Amongst those supporting a project in this area were the Law Society of Scotland, the Faculty of Advocates, BBC Scotland, and the Libel Reform Campaign. They and other respondents drew particular attention to the major reforms of the law of England and Wales introduced by the 2013 Act. 
We formed an advisory group to assist us in understanding how the current law works in practice and in developing our ideas for reform of the law. We are grateful to the members of the advisory group for their assistance throughout the project. We published our Discussion Paper in March 2016. We thank all those who took the time to respond. In April 2016, in association with Edinburgh University Law School Centre for Private Law, we held a seminar on reform of defamation law and verbal injury; this was attended by a wide range of stakeholders, including delegates from England and Wales and Northern Ireland. A further seminar on defamation law reform was hosted on our behalf by Pinsent Masons LLP in June 2016. In October 2016 we held a roundtable discussion on defamation and the new media. In August 2017, we launched a consultation on the draft Defamation and Malicious Publications (Scotland) Bill (“the draft Bill”), and asked for comments on it. A revised version of the draft Bill is attached to the present Report. In formulating the recommendations set out in this Report we have attempted to take account of views expressed to us by stakeholders during the project. In what follows we refer, where appropriate, to the consultation responses on the Discussion Paper and the draft Bill. They are published in full on our website. 
Our approach 
We did not confine our approach to examining whether and to what extent the reforms reflected in the 2013 Act might be suitable for adoption in Scots law, subject to any appropriate modifications or improvements. We also considered other aspects of Scots defamation law that we thought might be in need of reform. These included: whether publication to a third party should become a requisite of an action for defamation; reform of remedies; and defamation of deceased persons. As mentioned above, we also examined the law relating to verbal injury. 
Structure of the Report 
The Report is divided into ten further chapters and three appendices. In chapter 2 we consider whether Scots law should continue to allow defamation actions to be based on private communications without a need for publication of the statement complained of to a third party. We recommend that publication to a third party should become a necessity for a competent action. We also address the need for a threshold test of serious harm and propose that one should be introduced. We consider too whether and to what extent there should be a bar on the bringing of defamation proceedings by public authorities. We make a number of recommendations in this connection. In chapter 3 we look at whether the main common law defences of truth, publication on a matter of public interest, and fair comment should be put on a statutory basis. We recommend that they should be; and that the existing defences should be abolished. Chapter 4 is concerned with the bringing of proceedings against internet intermediaries, such as search engines and blogging sites. We recommend new rules providing stronger protections for such secondary publishers. In chapter 5 we examine the law on absolute and qualified privilege; we recommend that the rules should be set out in a new Act. Chapter 6 deals with the remedies available in defamation proceedings, including the system for offering to make amends. We recommend a number of increased powers for the courts, including power to order publication of a summary of the court’s judgment and to require removal of statements by website operators. The law on limitation of actions is considered in chapter 7. Here we recommend, amongst other changes, that there should be a restriction on the opportunity to bring proceedings in relation to republication of material, as well as a reduction in the limitation period within which defamation actions can be brought from three years to one. In chapter 8 we consider the rules on jurisdiction and examine whether there should continue to be an automatic right to trial by jury; we recommend that this should be modified. In chapter 9 we look at the law on verbal injury and recommend a number of reforms. Chapter 10 discusses whether the law should allow cases to be brought where a deceased person has been defamed; we recommend that this should not be permitted. Finally, we list our recommendations in chapter 11. Appendix A sets out the draft Defamation and Malicious Publication (Scotland) Bill. In Appendix B we provide a list of those who responded to the Discussion Paper. Appendix C contains a list of respondents to the consultation on the draft Bill.
The Commission's recommendations are -
1. It should be competent to bring defamation proceedings in respect of a statement only where the statement has been communicated to a person other than its subject, with that person having seen or heard it and understood its gist. (Paragraph 2.8; Draft Bill, section 1(2)(a) and (4)) 
2. It should be competent to bring defamation proceedings in respect of a statement only where the publication of the statement has caused, or is likely to cause, serious harm to the reputation of the person who is the subject of the statement. (Paragraph 2.14; Draft Bill, section 1(2)(b) and (4)) 
3. Bodies which exist for the primary purpose of making a profit should, in principle, continue to be permitted to bring proceedings in defamation. (Paragraph 2.20) 
4. A non-natural person whose primary purpose is to trade for profit should be permitted to bring defamation proceedings only where it can demonstrate that the statement complained of has caused or is likely to cause it serious financial loss. (Paragraph 2.25; Draft Bill, section 1(3)) 
5. Persons which are classed as public authorities for the purposes of the Bill should not be permitted to bring proceedings for defamation. (Paragraph 2.29; Draft Bill, section 2(1)) 6. A person should be classed as a public authority if the person’s functions include functions of a public nature. (Paragraph 2.29; Draft Bill, section 2(2)) 
7. A person should not fall into the category of a public authority if it is a non-natural person which has as its primary purpose trading for profit or is a charity or has a charitable purpose and is not owned or controlled by a public authority and only carries out functions of a public nature from time to time. (Paragraph 2.29; Draft Bill, section 2(3)-(4)) 
8. There should be a power for Scottish Ministers to make regulations specifying persons or descriptions of persons who are not to be treated as a public authority, where this result is not achieved already by section 2. Such regulations should require public consultation before they are made and be subject to the affirmative resolution procedure. (Paragraph 2.29; Draft Bill, section 2(6)-(8)) 
9. A statutory defence of truth should be introduced. The defences of veritas at common law and justification under the Defamation Act 1952 should be abolished. (Paragraph 3.13; Draft Bill, sections 5, 8(1)(b) and 33(1)) 
10. A statutory defence of honest opinion should be introduced. The defences of fair comment at common law and under the Defamation Act 1952 should be abolished. (Paragraph 3.22; Draft Bill, sections 7, 8(1)(d) and 33(1)) 
11. It should not be a requirement of the defence of honest opinion that the opinion expressed relates to a matter of public interest. (Paragraph 3.28) 
12. The statutory defence of honest opinion should be available in relation to a statement of opinion including a statement drawing an inference of fact which: (a) indicates either in general or specific terms the evidence on which it is based; and (b) is such that an honest person could have held the opinion conveyed by the statement on the basis of any part of that evidence. (Paragraph 3.62; Draft Bill, section 7(2), (3) and (4)) 
13. The statutory defence of honest opinion should fail if it is shown that the person who made the statement did not genuinely hold the opinion conveyed by the statement. (Paragraph 3.62; Draft Bill, section 7(5)) 
14. Where the statement complained of was published by one person but made by another, the previous recommendation should be inapplicable and the statutory defence of honest opinion should fail if it is shown that the person who published the statement knew or ought to have known that the author of the statement did not genuinely hold the opinion conveyed by the statement. (Paragraph 3.62; Draft Bill, section 7(6)) 
15. A statutory defence of publication in the public interest should be introduced. The Reynolds defence should be abolished. (Paragraph 3.75; Draft Bill, sections 6 and 8(1)(c)) 
16. The statutory defence of publication in the public interest should extend to statements of fact and to statements of opinion. (Paragraph 3.79; Draft Bill, section 6(5)) 
17. The statutory defence of publication in the public interest should make specific provision for reportage. In particular, it should be provided that in determining whether it was reasonable for a defender to believe that publication was in the public interest, (a) allowance must be made for editorial judgment, where appropriate; and (b) no account should be taken of any failure by a defender to take steps to verify the truth of the imputation conveyed by a statement if the statement was or formed part of an accurate and impartial account of a dispute to which the pursuer was a party. (Paragraph 3.85; Draft Bill, section 6(3) and (4)) 
18. Any review of responsibility and defences for publication by internet intermediaries should be carried out on a UK-wide basis. (Paragraph 4.7) 
19. As part of any UK-wide review of liability and defences of internet intermediaries, consideration should be given to (a) whether there is scope to clarify the operation of existing provisions, rather than creating new provisions and (b) if so, whether this would be most appropriately achieved by means other than legislation. (Paragraph 4.25) 
20. Generally, defamation proceedings should not be capable of being brought against a person, unless the person is the author, editor or publisher of the statement in respect of which the proceedings are to be brought or is an employee or agent of such a person and is responsible for the content of the statement or the decision to publish it. (Paragraph 4.33; Draft Bill, section 3) 
21. A regulation-making power should be created to allow for exceptions to the general rule so that specified categories of person may be treated as publishers of a statement for the purpose of defamation proceedings despite not being the author, editor or publisher of the statement or an employee or agent of such a person. A draft of such regulations should be the subject of consultation before they are made. The regulations should be subject to the affirmative resolution procedure. (Paragraph 4.33; Draft Bill, section 4(1), (3) and (4)) 
22. Any such regulations may also provide for a defence that the person treated as a publisher did not know and could not reasonably be expected to have known that the material disseminated contained a defamatory statement. (Paragraph 4.33; Draft Bill, section 4(2))   
23. There should be no change to Scots law in relation to absolute privilege for statements made in the course of parliamentary proceedings. (Paragraph 5.9) 
24. Section 14 of the Defamation Act 1996 should be repealed and re-enacted in a new Defamation Act so as to reflect in Scots law the change effected by section 7(1) of the 2013 Act for England and Wales in relation to absolute privilege for contemporaneous reports of court proceedings anywhere in the world and of any international court or tribunal established by the Security Council or by an international agreement. (Paragraph 5.9; Draft Bill, section 9) 
25. The law on privileges should be extended by allowing qualified privilege to cover communications issued by a legislature or public authority outside the EU or statements made at a press conference or general meeting of a listed company anywhere in the world. (Paragraph 5.16; Draft Bill, section 11 and schedule) 
26. The privileges of the Defamation Act 1996 should be restated for Scotland in a new statute. (Paragraph 5.22; Draft Bill, sections 9 and 11 and schedule) 
27. There should be no reform of Scots law in relation to qualified privilege for publication (through broadcasting or otherwise) of Parliamentary papers or extracts thereof, for the time being. (Paragraph 5.32) 
28. Consideration of any future reform relating to this area should be carried out on a UK-wide basis. (Paragraph 5.32) 
29. The scope of section 6 of the 2013 Act should not be expanded but its current terms should be restated in a new Act for Scotland. (Paragraph 5.44; Draft Bill, section 10)  
30. There should be no change to the law governing the granting of interdict and interim interdict in defamation actions or in proceedings under Part 2 of the Bill. (Paragraph 6.6) 
31. The offer of amends procedure should be incorporated in a new Defamation Act. (Paragraph 6.11; Draft Bill, sections 13 to 17) 
32. There should be a statutory provision to the effect that an offer of amends is deemed to have been rejected if not accepted within a reasonable period. (Paragraph 6.17; Draft Bill, section 13(3)(c)) 
33. In defamation proceedings and in Part 2 proceedings the court should have power to order that the defender must publish a summary of its judgment. (Paragraph 6.44; Draft Bill, section 28) 
34. In defamation proceedings and in Part 2 proceedings the court should have statutory power to allow a settlement statement to be read out in open court. (Paragraph 6.51; Draft Bill, section 29) 
35. In defamation proceedings and in Part 2 proceedings the court should have statutory power, at any stage in the proceedings, (a) to order the operator of a website to remove a defamatory statement or (b) to order the author, editor or publisher of such a statement to stop distributing, selling or exhibiting material containing it. (Paragraph 6.61; Draft Bill, section 30) 
36. Where a person publishes a statement to the public and subsequently publishes the same or substantially the same statement, any right of action in respect of the subsequent publication should be treated as having accrued on the date of the first publication. (Paragraph 7.8; Draft Bill, section 32(3)) 
37. The previous recommendation should not apply where the manner of the subsequent publication is materially different from that of the first publication, having regard to the level of prominence that the statement is given; the extent of subsequent publication; and any other matter which a court considers relevant. (Paragraph 7.14; Draft Bill, section 32(3)) 
38. The length of the limitation period in actions for defamation should be one year. (Paragraph 7.19; Draft Bill, section 32(2)) 
39. The limitation period should commence on the date of first publication of the statement complained of. (Paragraph 7.24; Draft Bill, section 32(3) and 32(6)(b)(iv)) 
40. A court in Scotland should not have jurisdiction to hear and determine defamation proceedings against a person who is not domiciled in the UK, another Member State or a state which is a contracting party to the Lugano Convention, unless satisfied that Scotland is clearly the most appropriate place to bring the proceedings. This should not affect the availability of the defence of forum non conveniens, where appropriate. (Paragraph 8.10; Draft Bill, section 19) 
41. The presumption in favour of jury trials in defamation actions should be replaced by a discretionary power to allow the court to appoint the form of inquiry, including jury trial, best suited to the circumstances of the case. (Paragraph 8.19; Draft Bill, section 20) 
42. The principles underlying the three categories of verbal injury which relate to economic interests (ie falsehood about the pursuer causing business loss, slander of title and slander of property) should be retained. (Paragraph 9.23) 
43. The common law rules relating to these categories of verbal injury should be abolished and instead expressed in statutory form. (Paragraph 9.23; Draft Bill, sections 21, 22, 23 and 27) 
44. Verbal injury should be renamed by a term which reflects more accurately the type of conduct it seeks to address (ie malicious publication). (Paragraph 9.23; Draft Bill, Part 2) 
45. The three categories of verbal injury relating to economic interests should be renamed, to reflect more clearly the types of conduct they seek to address (ie statements causing harm to business interests, statements causing doubt as to title to property and statements criticising assets). (Paragraph 9.23; Draft Bill, sections 21, 22 and 23) 
46. The common-law rules providing for verbal injury relating to individuals should be abolished. (Paragraph 9.32; Draft Bill, section 27)  
47. There should be no requirement on the pursuer in proceedings under Part 2 of the draft Bill to show financial loss if the statement complained of is more likely than not to cause such loss. (Paragraph 9.34; Draft Bill, section 24) 
48. The “single meaning rule” should not apply in relation to proceedings brought under Part 2 of the draft Bill. (Paragraph 9.36; Draft Bill, section 25) 
49. Anxiety and distress should be capable of being taken into account by the court in determining the appropriate amount of general damages, in so far as such anxiety and distress flows from economic damage to business interests caused by the relevant statement. (Paragraph 9.38; Draft Bill, section 26)