The changes introduced by the new Defamation Act 2013 (the “2013 Act”), which came into force on 1 January 2014, have considerably altered the manner in which defamation claims are brought (and defended) in the UK. One such change – the introduction of a new defence for certain website operators – was intended to strike a balance between offering claimants a speedier form of redress in relation to online defamation, whilst also providing website operators with a specific defence to such claims. However, it is questionable whether the Act will actually succeed in achieving either of these aims in practice.
Previously, a website operator could avail of a defence under section 1 of the old Defamation Act 1996 if it was not the author, editor or publisher of a defamatory statement, provided that the operator could demonstrate that it took reasonable care in relation to the publication of that statement, and further, that the operator did not know, and had no reason to believe, that it had caused or contributed to the publication of a defamatory statement. This last limb of the test proved difficult for many website operators to successfully establish.
Under the 2013 Act, section 5 affords certain website operators a defence in defamation claims in circumstances where the operator did not post the defamatory statement. However, the Act places stringent requirements on operators in relation to their obligation to respond to complaints about defamatory statements that are posted online. The Defamation (Operators of Websites) Regulations 2013 (the “Regulations”) sets out detailed provisions relating to this procedure. The operator must take initial action within 48 hours of receiving a complaint – in the event that they have no means of contacting the poster electronically, the operator must remove the offending post; otherwise, it must send a copy of the complaint to the poster together with a warning that their post may be removed if the poster fails to respond within 5 days of the notice. If the poster responds to the notice but objects to the taking down of the statement, the operator must inform the complainant within 48 hours of receiving the notice and provide the poster’s contact details to the complainant, if the poster consents to its doing so.
In the event that the poster does not consent to its contact details being passed on to the complainant, the statement will remain on the website, although a complainant may wish to apply to court for an order requiring the operator to release the contact details to it. The timeframes mean that claimants could, potentially, suffer considerable and irreparable damage, given that the statement could, potentially, remain on the relevant website for up to nine working days (the Regulations exclude weekends and bank holidays when calculating time frames), or longer if a poster objects to their contact details being forwarded to a complainant. On the other hand, the timeframes are relatively short for website operators to comply with; operators will have to act fast if they want to avail of the section 5 defence. In order to meet the timeframes set out in the Regulations, operators will have to constantly monitor their inboxes for complaints and, if any are received, operators will have to act fast. This could be particularly difficult for operators based overseas in different time zones and/or for those operators with limited administrative resources.
In relation to the re-posting of material, where a post has been removed in accordance with the Regulations and another statement is posted which “conveys the same or substantially the same imputation” as a statement about which a complainant has previously notified an operator – on the first occasion of re-posting, the complainant will have to follow the normal complaints procedure under the Regulations. However, if the statement is re-posted on a second or any subsequent occasion, the operator must take down the post within 48 hours, and need not follow the steps set out in the Regulations. Again, this places a considerable burden on website operators whilst also leaving complainants with little by way of redress; in such instances, the defamatory statement (or at least a version of that statement) could, potentially, remain on the relevant website for up to 18 working days.
Given the complicated and burdensome procedures set out in the Regulations in respect of the section 5 defence, and in light of the potential costs involved in monitoring and dealing with complaints in this way, many operators may prefer to rely on defences under the Electronic Commerce (EC Directive) Regulations 2002, which defence is available in limited circumstances to hosting intermediaries where the operator did not moderate the comments and had no actual knowledge of the unlawful activity. Alternatively, operators may decide to rely on the other defences under the Act, or indeed, under the Defamation Act 1996.
With the introduction – and rapid expansion – of social media (most notably Twitter) during the years since the Defamation Act 1996 was implemented, change to the UK’s defamation legislation was inevitable. However, the new defence for website operators is unlikely to be of much practical assistance to complainants or website operators in many instances involving the posting of allegedly defamatory material. In addition, in light of the stringent timeframes set out in the Regulations in order for the section 5 defence to apply, worryingly, operators may decide to simply remove the post immediately without following the procedure, which could result in a serious (and often unnecessary) curtailment on freedom of expression.