UK: Defamation Act 2013 Update: Website Operators

Last Updated: 23 September 2013
Article by Nick Armstrong

As at end August 2013 there is still no date for the coming into force of the Defamation Act 2013 ("the Act").

However, the Ministry of Justice has now (late August 2013) produced the draft Regulations under section 5 ("Operators of Websites")

The draft Regulations beg the question:

Is section 5 a convoluted white elephant?

To recap:

Section 5 of the Act provides a defence for the operator of a website where a defamation action is brought in respect of a statement posted on that website if it was not the operator who posted the statement.

The defence sounds like a useful back-up to other defences currently available to website operators and to section 10 of the Act itself (see below).

Note that under section 5(12), moderation by the operator of the website of comments posted on it by others, does not invalidate the defence.

However, the section 5 defence is only straightforward in the case of posts on the website from which the complainant can identify the poster, (in other words where the complainant "has sufficient information to bring proceedings" against the poster – section 5(4)).

Of course, in the real world, the majority of problematic posts are likely to be anonymous. And in those situations, the section 5 defence is much more complicated for website operators.

The website operator will not be able to rely on section 5 if the complainant can show that:

  • it was not possible for the claimant to identify the person posting the statement; and
  • the claimant gave the operator a notice of complaint in relation to that statement; And
  • the operator did not respond to the notice of complaint in accordance with the new Regulations.

It is the latter Regulations which have now been published in draft.

The Draft Regulations

A copy of the draft Regulations can be found here.

Health warning: they are a tortuous read. The following is a summary of the main points.

Broadly-speaking:

The complainant's duties are contained in draft Regulation 2 governing the content of the Notice of Complaint.

The Notice must do more than just allege that a post is 'defamatory'. This is because a defamatory post may be completely lawful, if it is protected by one of the defamation defences e.g. it is true, or an expression of honest opinion. The Regulations seek to prevent lawful posts being suppressed.

Hence, in the Notice, as well as setting out the statement concerned and explaining why it is defamatory of the complainant, and specifying where on the website it was posted, the complainant must:

  • set out the meaning the complainant says the statement bears
  • set out the aspects of the statement which the complainant "believes" are factually inaccurate, or opinions unsupported by fact.

There is a list of other requirements for a valid Notice: e.g. it must confirm that the complainant does not have enough information about the poster to bring proceedings against that person, and specify whether the complainant consents to the website operator supplying the complainant's name and email address to the poster.

The website operator's duties are set out in the Schedule to the draft Regulations A complex series of steps is set out, which must be taken in order to benefit from the defence provided by section 5 of the Act.

The procedure hinges on this:

  • the website operator must send a copy of the Notice of Complaint to the poster within 48 hours, requiring a response from the poster within 5 days after that as to whether the poster
  • consents to the material being removed from the website; and
  • consents to identification details being provided to the complainant etc.

A complex series of scenarios is provided for, e.g.

  • if the website operator "has no means of contacting the poster" (i.e. by private email or messaging), the website operator must remove the statement complained of from the website within 48 hours of receiving the Notice of Complaint;
  • if the poster is contacted but fails to respond within the 5 days, the website operator must, within 48 hours thereafter, remove the statement complained of

If the website operator has complied with all the requirements but the poster withholds consent to both removing the statement complained of and providing identification details to the complainant, then the website operator must notify the complainant within 48 hours.

If it satisfies all the various requirements and time limits, the website operator will have the protection of the section 5 defence from being sued. It may however have to deal with an old fashioned court application by the complainant, who will have to seek an Order to obtain the poster's identification details, and then sue the poster.

There are other Regulations about

  • the steps the website operator must take if a Notice of Complaint fails to set out all the necessary information (Regulation 4): the website operator basically has 48 hours to notify the complainant of the failings in the notice;
  • calculation of the time limits which apply to actions which must be taken by the website operator e.g. excluding from the calculation of the 48 hour period any time which occurs on a weekend or public holiday in the place where the action is being taken (Regulation 1);
  • the court's discretion to extend the time limits in the Regulations (Regulation 5).

Practical Consequences

The short timescales suggest that to implement this procedure, website operators would need to have in place a system, manned at least 5 days a week by people who know their way around the Regulations, for dealing with Notices of Complaint in due time, especially in view of the short timescales for responding.

However, in practice, It seems more likely at first sight that the whole section 5 process is so bureaucratic and onerous, that website operators – certainly in the commercial world - will wherever possible prefer to rely on:

Other protection for website operators

The Defamation Act 1996, section 1 remains in force

(1)In defamation proceedings a person has a defence if he shows that—

(a) he was not the author, editor or publisher of the statement complained of,

(b) he took reasonable care in relation to its publication, and

(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

AND

(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved - ...

(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form; and

(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.

There is a more or less parallel defence under the European ECommerce (a European Directive enacted into English law) under which hosting intermediaries e.g. internet service providers, shall not be liable if they do not have actual knowledge of unlawful activity.

The 2013 Act itself has another section which could protect website operators:

Section 10 – "Action against a person who was not the author, editor etc"

Section 10(1) says: "A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.

(2) In this section "author", "editor" and "publisher" have the same meaning as in section 1 of the Defamation Act 1996."

The majority of website operators may well be able to argue that they are not "publishers" – at least until they are put on notice of a complaint. The Court of Appeal in Tamiz v Google Inc [2013] EWCA Civ 68, concerning Google's "Blogger" service, ruled that the website operator there could well be regarded as a "publisher" after being put on notice of a complaint, but not before.

So, the effect of a website operator receiving any notification of a defamation complaint (especially a detailed Notice of Complaint under the new section 5) is thus arguably to

  • make the website operator a "publisher" with potential defamation liability (because the 1996 Act section 1 and 2013 Act section 10 defences have been lost);
  • put the website operator in the position having "actual knowledge of unlawfulness" (ECommerce Reg 19.)

Rather than going through the convoluted Section 5 procedure, the majority of website operators may well find it more sensible and commercially attractive to respond promptly to a notice of complaint and simply remove the statements complained of.

It is likely to be the operators of academic and similar websites, where the importance of free speech is more crucial, who will find section 5 most useful – as long as they can make the necessary arrangements for steps to be taken in accordance with the timescales laid down.

In the commercial world, most website operators will be prepared to put practical (and cost-saving) expediency ahead of questions of principle about whether the complaint is valid and whether the statement complained of might in fact be e.g. true and hence justifiable.

Promptly removing material in this way will usually remove any realistic danger of being liable in defamation.

The effect of website moderation

The only exception might be where a website operator carries out detailed prior moderation of posts on the site. In these circumstances, the operator could well be considered to be a 'publisher' and hence excluded from the above alternative defences.

Section 5 on the other hand – as noted above – specifically provides in subsection 12 that "moderation by the operator of the website of comments posted on it by others, does not invalidate the defence" under Section 5.

This is likely to be a small minority of sites. Reactive moderation coupled with the protection of the alternative defences set out above, is likely to remain the norm.

Following the complex Section 5 Regulations – once they come into force – is likely to be an expensive rarity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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