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Introduction
One of the most hotly debated bills currently passing through Parliament is the Defamation Bill (the "Bill").
The main aim of the Bill is to reform the law of defamation to ensure that a fair balance is struck between the rights of freedom of expression and the protection of reputation. The Bill makes a number of substantive changes to the law of defamation, as well as codifying certain aspects which already exist within case law.
What does it mean for website operators?
The Bill is good news for website operators because it creates a new defence against liability for defamatory material posted by users of their websites.
Currently website operators are not liable for defamatory user generated content provided they do not participate in its publication, for instance by moderating what is posted by their users. The position changes once a complaint is made to the website operator. Provided that the complaint is sufficiently precise the website operator will have a decision to make: remove the material, in which case the immunity is preserved, or leave the material on the website, in which case the website operator assumes responsibility for it and can be sued in the same way as the original author.
The legal position of website operators has led to an unfortunate situation in which they invariably remove material from their websites once a complaint is made and without any real scrutiny as to the merits of the complaint. Why? Because website operators receive a vast number of such complaints. It is simply easier and less costly for the website to remove the material. It is also less risky. It only takes one mistake – for something defamatory to be left on the website following complaint – for a website operator to be placed in the firing line. The time and cost associated with defending libel proceedings means that it is just not worth the risk of leaving something up following a complaint.
The scenario described above has led many to suggest that the law has had a chilling effect on freedom of expression on websites which host user generated content. It is too easy for a complainant to censor and secure the removal of criticism from a website because the website operator is not likely to challenge the complaint.
Clause 5 of the Bill seeks to change this position. It aims to gives website operators better protection so that they do not automatically take down material upon complaint. In essence, website operators will be given complete immunity if the original author of the material is identifiable. In that case, the complainant's only remedy will be to sue the original author. The website operator will be able to leave the material online until the Court determines that it should be taken down.
The position is different if the original author is not identifiable. In that case the complainant may give notice to the website operator to require it to take certain steps which are described in yet-to-be-published Regulations. It is far from ideal that the Regulations were not published at the same time as the Bill and this has been a continuing criticism of the Bill's passage through Parliament. However, it is likely that the Regulations will require the website operator to hand over the original author's contact details so that the dispute can be resolved between those parties. However, recognising that in certain circumstances the original author will not have provided valid contact details to the website, the Regulations are also likely to provide for the material to be removed in certain circumstances. Provided the website operator follows these Regulations, it will be immune.
Perhaps most appealing to website operators is that the new defence will apply even if the website operator moderates the user generated content posted on its website. As described above, the current position is different as the website operator's defence will be lost if it moderates the material posted by its users. This has the unfortunate effect of encouraging the website operator to exercise no quality control over what is allowed to be published on the website and simply to remove material as and when there is a complaint. The new defence will remove this obstacle: website operators will not lose the new defence simply by virtue of moderating the material posted by its users.
Conclusion
The new defence to be provided by the Bill puts website operators in a much better position. They will be able to moderate the user generated content posted on their websites, and exercise an element of quality control, without fear of losing their immunity if something which has been allowed through turns out to be defamatory.
The Regulations, once published, are also likely to allow website operators to be more robust about leaving material on the website following a complaint, provided of course that it is possible for the complainant to pursue the original author. The draft Regulations will shed more light about how this process will actually work in practice, which are due to be published very soon.
Rhys Griffiths is a partner and a member of the Defamation Group at Field Fisher Waterhouse LLP.