The Defamation Bill ("the "Bill") currently making its way through the Houses of Parliament is good news for website operators because it provides an additional defence against liability for defamatory user generated content. See here for an update on the key provisions of the Bill in this respect.
A continuing criticism of the Bill is that it leaves the crucial detail of how the new defence will operate to Regulations which have yet to be published. The position is now becoming clearer following the launch of the Ministry of Justice's (the "MOJ") consultation on the new defence. This sets out how the MOJ intends the new defence to work and seeks views from interested parties on this proposal.
This article will summarise the proposed new defence, before going on to consider the advantages of this new defence over the already existing defence for website operators.
The new defence
The basic position is that the website operator will have complete immunity from an action in defamation if it did not post the offending material and the original poster is identifiable to the complainant. In that case, the complainant's only remedy will be to sue the original author. Moreover, the website operator may leave the offending material on the website until the dispute has been resolved and the Court has ordered (or there is agreement) for the material to be removed.
The position is different if the original author is not identifiable. In that case the Regulations set out a procedure which is aimed at putting the complainant in touch with the original poster (so that the dispute can be resolved between those parties) without the involvement of the website operator and without the offending material having to be removed until agreement or a Court decision.
Procedure where the original poster is not identifiable
If the original poster is not identifiable, the complainant may serve a Notice of Complaint upon the website operator. The Notice of Complaint must contain certain information as prescribed by the Regulations, namely:
- The complainant's name and means of contact e.g. an e-mail address;
- Specific information about the location of the offending post (including an URL);
- The statement complained of and an explanation of how the statement is defamatory (including details of any factual inaccuracies and/or unsupportable comment);
- An explanation of the meaning the complainant gives to the offending statement;
- Confirmation that the complainant does not have sufficient information to bring proceedings against the poster; and
- Confirmation as to whether the complainant is content for his contact details to be passed to the poster.
The consultation recognises the very real likelihood that members of the public may well fail to give Notices of Complaint which comply with these specific requirements. In that case, the consultation suggests that website operators should have to inform the complainant about this failure and explain what is required for a valid Notice of Complaint. However, the consultation does not suggest that the website operator should provide a critique of why the submitted notice is invalid.
If valid Notice of Complaint is given, the website operator will have to take the following steps:
1. If the website operator has no way of contacting the original poster, the material should be removed and the complainant informed.
2. If the original poster is contactable, the website operator will have 72 hours to contact the original poster in order to do the following:
(a) Provide a copy of the Notice of Complaint;
(b) Ask the original poster whether he agrees to the material being removed or wishes to stand by the posting;
(c) Inform the poster that if no response is received in 7 days then the material will automatically be taken down;
(d) Ask the original poster for his full name and address if he wishes for the material to remain on the website, and that this information may be released to the complainant;
(e) Explain that if the poster does not agree to release of his contact details the website operator will not release them, but the complainant may seek to obtain a court order for their release.
3. The website operator will then have to acknowledge receipt of the Notice of Complaint, confirm that it has been sent to the poster and explain when further information will be provided.
4. The original poster must then respond to the website operator and include the following details:
(a) Whether he wishes for the material to be removed, or to remain, on the website;
(b) If the original poster requires the material to remain on the website, whether he is content (or not) for his contact details to be provided to the complainant; and
(c) His full name and contact details.
5. Upon receipt of the original poster's response, the website operator will have to take one of the following actions, depending on the response received:
(a) If the original poster agrees for the material to be removed, the website operator should do so and confirm this to the complainant within 48 hours.
(b) If the original poster does not respond within the 7 day deadline indicated above, the website operator should remove the material from the website and confirm this to the complainant within 48 hours.
(c) If material removed in accordance with 5(a) or 5(b) above is reposted, the same process described above (starting with a Notice of Complaint) will apply again the first time it is reposted. However, if it is reposted on further occasions, then the website operator will have to remove it upon notification by the complainant and without following the same procedure described above.
(d) If the original poster wishes for the material to remain on the website and is content for his contact details to be released to the complainant then the website operator must inform the complainant and pass on the relevant contact details within 48 hours. The onus is then on the complainant to pursue the original poster and the website operator will be under no obligation to remove the material from the website.
(e) If the original poster wishes for the material to remain on the website but is not content for his contact details to be released to the complainant then the website operator must inform the complainant of the original poster's response within 48 hours and that the material will remain on the website until a court order requires its removal. The website poster must also advise the original poster that it has notified the complainant of his response.
(f) If the original poster refuses to give full contact details to the website operator, or provides details which are clearly false, then to remain eligible for the defence, the website operator must take down the post.
(g) In circumstances where the website operator has not provided the original poster's contact details to the complainant, the complainant may apply to Court for its disclosure, but the website operator will be required to notify the poster upon being served by a disclosure application.
6. Provided that the website operator follows the process described above, the Bill will provide it with immunity from being sued in defamation. Moreover, the Bill provides that even if the website operator fails to comply with a particular step within a stipulated deadline, the Court should have discretion to ignore that particular failure and to allow the website operator to have the benefit of the defence if it is in the interests of justice to do so.
The new defence certainly has its attractions. Currently, website operators are generally immune from a claim for defamatory user generated content provided they do not participate in the publication of the material on the website. If they participate (e.g. by moderating what goes on the website) they are liable to lose the statutory defence. The new defence is different. It applies even if the website operator moderates user generated content before it goes live on the website. This will be attractive to website operators that want to exercise an element of quality control over what is posted on their website.
The other attraction of the new defence is that it will allow website operators to be more robust about leaving material on the website after a complaint is made. Currently, website operators will lose their statutory defence if unlawful material is left on the website after a sufficiently precise complaint is received. The new defence is again different. If the original author is identifiable, or is prepared to provide his contact details to the website operator, then the website operator will not have to remove the material from its website in order to benefit from the defence.
The consultation process closes on 31 January 2013, following which draft Regulations are likely to be published and debated in the Houses of Parliament before becoming law. Accordingly, if a website operator wishes to make its views known, now is the time to do so. If you would like to discuss any aspect of this article, please do not hesitate to contact Rhys Griffiths.
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