Who: UK Parliament
When: 1 January 2014
Law stated as at: 13 January 2014
On 25 April 2013 the Defamation Act 2013 (the “Act”) received the Royal Assent. When it came into force at the dawn of 2014 it brought with it a potentially significant new defence for website operators.
Although the end result may not be quite the “quick, clear and practical” process promised by the Commons Committee, the provisions of Section 5 of the new Act will be of interest to all publishers of websites which host user generated content (“UGC”).
The basics are as follows:
• Section 5 – sets out that a website operator will have a defence against a claim in respect of a statement posted on the website (i.e. UGC) where it was not the website operator who posted the statement subject to a few conditions (set out below).
• Guidance Notes issued by the Ministry of Justice (“Guidance”)
• Frequently Asked Questions split into Complainants, Website Operators and Posters issued by the Ministry of Justice.
What Does Section 5 say?
The Section 5 defence applies if the operator can show that the operator did not post the statement on the website. However, the defence is defeated if the person bringing a libel claim in respect of the statement (the claimant) can show:
• that it was not possible for the claimant to identify the person who posted the statement (that is, the claimant did not have sufficient information to bring legal proceedings against the person);
• that the claimant gave the operator a notice of complaint in relation to the statement; and
• that the operator failed to respond to that notice in accordance with the procedure set out in the Defamation (Operators of Websites) Regulations 2013.
The Section 5 defence will also be defeated if the claimant can show that the operator acted with malice in relation to the posting of the statement, but is not defeated just because the operator moderates statements posted on the website.
What Does the Guidance say?
Following an introduction setting out the scope of the Section 5 defence, the Guidance sets out the details of the ‘straightforward’ process:
– Stage 1 – Notice of Complaint to a website operator (it is recommended that a designated email address/or online form is set up by the operator for this purpose) alleging that defamatory material has been published; and
– Stage 2 – the action required by the website operator on receipt of a valid Notice of Complaint (including contacting poster or where non-contactable remove the content and contacting complainant within 48 hours)
The actions required of the website operator broadly fall into two categories: (1) where the poster is identifiable; and (2) where the poster is anonymous.
Full details are set out in the Guidance, including helpful Boxes setting out what should be included in a Notice of Complaint and the communication from the website operator to the poster (where identifiable). When the poster is anonymous the website operator must remove the content (if it wishes to rely on the defence).
Failure to comply with any step of the process, including the time periods (which do not include any time falling on a non-business day in England and Wales but do include non-office hours) will operate to remove the defence from the website operator.
Why this matters:
In practice the Section 5 defence is a process-driven defence – following to the letter will give all website operators confidence that they will not incur any liability for content posted by identifiable or anonymous posters.
The extent of UGC that appears on websites and of the IT platform on which it sits will determine how this process is managed and to what extent job roles will need to be created or adapted to administer the additional work load to ensure that this defence is available.
Some may argue that the defences already available to them (under Section 1 of Defamation Act 1996 and Regulation 19 of the E-Commerce Regs 2012) (“Old Defences”) still provide adequate protection and the additional cost to implement the Section 5 defence process is disproportionate – however after the decision in Tamiz v Google publishers may want to think twice about relying on these defences entirely.
In Tamiz the court held that once the website operator was on notice from the complainant, the Old Defences no longer operated and the website operator could not rely on them. Given that Stage 1 of the Section 5 defence is a Notice of Complaint to the website operator this will put the website operator on notice and, after Tamiz, the website operator will no longer be able to rely on the Old Defences leaving Section 5 as the website operator’s best option.
Of course, there is nothing obliging any website operator to follow the Section 5 defence process: if publishers decide to take a view on the validity of a Notice of Complaint and subsequently decide not to remove the allegedly defamatory content on the basis that it is not regarded as unlawful, they are within their rights to do so. However there will be a risk that the available defences will be materially reduced should an action be brought.