Part 1: New defence for website operators against liability for defamatory user generated content
The Ministry of Justice has recently published draft regulations (the "Regulations") for England and Wales which set out how a new defence for website operators against liability for defamatory user generated content will work in practice. This is in addition to those defences currently available and which form the basis of the well-known "notice and take-down" procedure used by many websites.
This article summarises how the Regulations (as supplemented by the Defamation Act 2013) will work and what website operators must do to benefit from the new defence. This will be followed by an article which summarises the practical advantages and disadvantages of the new defence and what difference it will actually make to the position of website operators.
The new defence
The principle behind the Regulations is that a dispute about defamatory user generated content ought to be resolved between the complainant and the person who posted the material. In other words, the website operator should not be in the line of fire simply because it hosted the words complained of.
The Regulations provide the website operator with complete immunity from an action in defamation if it did not post the offending material and the poster is identifiable to the complainant. In that case, the complainant's only remedy will be to sue the poster. 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 author is not identifiable. In that case the Regulations set out a procedure which is aimed at putting the complainant in touch with the 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. The website operator will have to assist in this process if it wants to benefit from the new defence. The procedure is set out in more detail below.
Stage 1 – Receipt by the website operator of a Notice of Complaint
If the poster is not identifiable, the complainant may serve a Notice of Complaint upon the website operator. The Notice of Complaint must contain certain prescribed information, namely:
- The complainant's name and e-mail address;
- Specify where on the website the words complained of appear (e.g. a URL);
- The statement complained of and an explanation of how the statement is defamatory;
- An explanation of the meaning the complainant gives to the offending statement;
- The parts of the statement which the complainant says are factually inaccurate or opinions not supported by fact;
- 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 name and/or e-mail address to be provided to the poster.
The Regulations recognise the very real likelihood that some Notices of Complaint will not comply with these very specific requirements. In that case, the Regulations require the website operator to inform the complainant about this failure and to explain what is required for a valid Notice of Complaint within 48 hours. However, the Regulations do not require a website operator to provide a critique of why the notice submitted is invalid.
Stage 2 – Action required upon receipt of a valid Notice of Complaint
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 poster (which includes a method of private electronic communication), the material should be removed and the complainant informed within 48 hours.
2. If the poster is contactable, the website operator will have 48 hours to contact the poster in order to do the following:
(a) Provide a copy of the Notice of Complaint (altered to conceal the complainant's name and address if the complainant has indicated that he or she does not wish this to be released to the poster);
(b) Inform the poster that the statement complained of may be removed from the website unless the website operator receives a response from the poster with the information set out in the sub-paragraphs below within 5 days of the date of the Notice of Complaint.
(i) Whether or not the poster wishes the statement complained of to be removed from the website;
(ii) If the poster wishes for the statement to remain on the website, the poster's full name and postal address; and
(iii) Whether the poster consents to the website operator sending his or her contact details to the complainant.
(c) Inform the poster that if he or she does not consent to the website operator sending the contact details to the complainant, that the website operator will not release them and will only release them where ordered to do so by a court.
3. The website operator will then have to acknowledge receipt of the Notice of Complaint and confirm to the complainant that it has been sent to the poster within 48 hours.
Stage 3 – Poster's response to the website operator
4. There are various situations which can arise next, depending on how the poster responds to the website operator's communication. The various situations, and the actions required of the website operator in each case, are set out below:
(a) The poster fails to reply to the website operator within 5 days of the Notice of Complaint. In this case, the website operator must remove the material and inform the complainant of this within 48 hours.
(b) If the poster fails to provide the information required by the website operator, the website operator must remove the material. The website operator must also remove the material if it considers that the name and address provided by the poster are obviously false. In both events, the website operator must confirm this to the complainant within 48 hours.
(c) If the poster agrees for the material to be removed, the website operator should do so and confirm this to the complainant within 48 hours.
(d) If the poster wishes for the material to remain on the website and is content for his or her 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 poster and the website operator will be under no obligation to remove the material from the website.
(e) If the 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 poster's response within 48 hours and that the material will remain on the website until a court order requires its removal. In these circumstances, the complainant may apply to Court for disclosure of the poster's contact details. Although there is no requirement on the website operator to inform the poster of this application, it is encouraged to do so "as a matter of good practice".
Other issues – persistent reposting
5. If material is removed following a Notice of Complaint and the poster reposts the same or substantially the same material, the complainant may submit a further Notice of Complaint and the same process described above will apply again. However, if it is reposted on further occasions, then the website operator will have to remove it within 48 hours of notification by the complainant and without following the same procedure described above.
The Regulations are not straightforward. They attempt to set out a comprehensive roadmap for what a complainant, website operator and poster should do in the various situations which may arise when a complaint is made about defamatory user generated content, but there will always be grey areas. For instance, how can a website operator really know or make valued judgments as to whether the contact details provided by the poster are obviously false? Moreover, does the complexity make the Regulations so unattractive that website operators will prefer to rely upon the existing and simple notice and take-down procedures? Are the Regulations destined to be left on the shelf by website operators?
These issues are considered in more detail in the second part of this article, which will consider the practical advantages and disadvantages of the new defence and what difference it really makes to the position of website operators. In the meantime, if you would like to discuss any of the issues highlighted in this article further, please do not hesitate to contact Rhys Griffiths.
Rhys Griffiths is a Partner in the Dispute Resolution Group at Field Fisher Waterhouse LLP.