Clause 5 of the Defamation Bill is entitled “Operators of Websites”. Its purpose is to provide a new defence for website operators in circumstances where the claimant can pursue his claim for defamation against the person who posted the statement. It has been extensively debated on this blog and elsewhere. On 19 December 2012 it was one of the clauses considered by the House of Lords Grand Committee.
A crucial aspect of the operation of the clause are the regulations contemplated by clause 5(5) which provides that
Regulations may—
(a) make provision as to the action required to be taken by an operator of a website in response to a notice of complaint (which may in particular include action relating to the identity or contact details of the person who posted the statement and action relating to its removal);
(b) make provision specifying a time limit for the taking of any such action;
(c) make provision conferring on the court a discretion to treat action taken after the expiry of a time limit as having been taken before the expiry;
(d) make any other provision for the purposes of this section.
The Ministry of Justice has launched an informal consultation in relation to these Regulations, which has been made available to those who have expressed an interest. The terms of the consultation are set out below.
Introduction
1. This informal consultation seeks views on the content of regulations to be made under clause 5 of the Bill. The regulations will be prepared following consultation and will be laid before Parliament for the purposes of approval by both Houses in due course.
Responses to this consultation should be sent to defamation@justice.gsi.gov.uk by 18 January 2013.
Alternatively responses can be sent by post to:
Defamation Bill Team
Ministry of Justice
6.21, 102 Petty France
London
SW1H 9AJOverview of the proposed procedure
2. Under the system proposed in Clause 5, website operators will have a new defence if, upon receipt of a notice of complaint, they follow a process designed to ensure the issue is resolved with the poster of the material. To benefit from the defence, a website operator will have to contact the poster of the material within a short period to inform him of the complaint, ask whether he wishes to contest removal of the posting, and (if so) request his identity and contact details.
3. If the poster fails to respond within a short period or refuses to provide the relevant details, then the website operator – if it wishes to benefit from the defence – will be required to take the posting down. If the poster does wish to contest removal of the material, he will be required to provide his contact details to the website operator and indicate whether he consents to their release to the complainant. If he does agree, the website operator will be required to pass the details on. If he refuses, the website operator will have to inform the complainant so that the complainant can apply to the court for an order requiring the release of the information (known as a Norwich Pharmacal Order).
4. We intend to publish guidance prior to the provisions coming into force to assist complainants, posters and website operators in understanding and following the new process.
5. Where the complainant already has sufficient information in relation to the identity and contact details of the poster of the allegedly defamatory posting to bring proceedings against him, he will be expected to resolve the complaint direct with the author. If this cannot be done by agreement, the complainant will need to bring proceedings against the poster. In this situation, there is no need for the complainant to use the process set out in the regulations. Our aim is that disputes should be pursued directly between complainant and poster rather than involving website operators.
Stages under the new procedure
Stage 1 – Notice of Complaint
6. Where the complainant does not have sufficient information to identify the poster, he can send a notice of complaint to the operator of the website on which the allegedly defamatory posting has been published. Website operators will be encouraged to set up and publicise a designated email address for this purpose as a matter of good practice.
7. Clause 5(5)(c) of the Bill allows regulations to make provision conferring on the court a discretion to treat action taken after the expiry of a time limit as having been taken before the expiry. We propose that the regulations should give the court discretion to allow the website operator a defence despite non-compliance with the prescribed time limit for any stage in the process where the court considers it in the interests of justice to do so.
Q1. Do you agree that the regulations should give the court the above discretion regarding time limits and that this should be exercised where the court considers it in the interests of justice to do so? If not please give reasons.
8. Subsection (6) of Clause 5 sets out certain core elements to be included in a notice of complaint. These are that the notice a) specifies the complainant’s name, b) sets out the statement complained of and explains why it is defamatory of the complainant, and c) specifies where on the website the statement was posted.
9. We propose that the following should be included in a notice of complaint (this is a combination of what is already listed in clause 5, and other points that we think should be in the regulations):
a) the complainant’s name and a means of contact (eg an email address);
b) specific information to direct the operator to where the post can be found on the website (including a Uniform Resource Locator (URL));
c) the statement complained of together with an explanation of how the statement is defamatory of the complainant, including (as appropriate) details of any factual inaccuracies or unsupportable comment within the words complained of;
d) an indication of what the complainant takes the statement to mean;
e) confirmation that the complainant does not have sufficient information to bring proceedings against the poster;
f) confirmation as to whether the complainant is content for his contact details to be passed to the poster.Q2. Do you agree with the above contents required for a notice of complaint? If not please give reasons.
Q3. Is there anything further that you think should be included? If yes please specify.
10. We consider that the onus should rest with complainants to ensure that they complete the notice according to the requirements which are established. If they fail to do so, we provisionally consider that the website operator should be required to inform the complainant and point out what is necessary in order for a notice to be valid . We do not think that the operator should be required to tell the complainant what is wrong with the notice. If the operator rejects a notice and a complainant subsequently brings an action against the operator for defamation, the question of whether the notice was or was not valid would be a matter for the court to determine.
Q4. Do you agree with the process that is proposed in relation to invalid notices of complaint? If not please give reasons.
11. If the website operator chose not to take any action on receipt of a valid notice of complaint it would lose the clause 5 defence. However that would not stop it seeking to rely on other defences (for example under the E-Commerce Regulations and/or section 1 of the Defamation Act 1996).
Stage 2 – website operator contacts the poster regarding the complaint
12. On receipt of a valid notice of complaint, the website operator will have a short period within which to forward the complaint to the poster. We provisionally consider that 72 hours of receipt would be an appropriate period. If the website operator has no means of contacting the poster, the material should be removed and the complainant informed.
Q5. Do you agree that 72 hours is an appropriate period of time for the operator to forward the complaint to the poster? If not please give reasons and indicate what other period would be appropriate.
13. We propose that the communication from the website operator to the poster should do the following:
a) send a copy of the notice of complaint
b) ask whether the poster agrees to the material being removed or wishes to stand by the posting
c) inform the poster that if he does not respond within a fixed period (we provisionally suggest 7 days of sending) the posting will be taken down
d) inform the poster that if he wishes to stand by the material then he should provide the operator with his full name and postal address
e) ask whether the poster is content for those details to be released to the complainant;
f) 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 releaseQ6. Do you agree that the communication from the operator to the poster should contain the contents listed above? If not please give reasons?
Q7. Is there anything further that you think should be included? If yes please specify.
Q8. Do you agree with the time limit (of 7 days of sending) proposed for a poster to respond to an operator regarding a notice of complaint? If not please give reasons and indicate what other period would be appropriate.
14. When forwarding the complaint to the poster we envisage that the website operator should at the same time send the complainant an acknowledgement that the complaint has been received and sent to the poster, giving an indication of when further information will be provided (ie following the response date given to the poster).
15. The onus will be on the website operator to monitor the position and take further action when the poster’s response is received or the time limit for the response expires, rather than on the complainant to chase the matter.
Stage 3 – Poster’s response to the website operator
16. As noted above, the poster will have the fixed period (proposed above) to respond to the complaint. We propose that the poster’s response, should include the following:
a) Whether the poster is content for the material to be removed or whether he wishes to stand by the material;
b) If he wishes to stand by the material whether he is content for the website operator to release his contact details to the complainant [in these circumstances posters will need to provide their full legal name and contact details which includes their postal address];
c) Whether he wishes to stand by the material but refuses to agree to release of contact details to the complainant [in these circumstances posters will be required to provide their full legal name and contact details which includes their postal address].Q9. Do you agree that a poster’s response to an operator should include the above elements? If not please give reasons?
Q10. Is there anything further you think should be included? If yes please specify.
17. If the poster agrees to removal of the material – the operator should action this within a short fixed period and should inform the complainant that the material has been removed. We provisionally consider that 48 hours of receipt would be an appropriate period.
Q11. Do you agree that 48 hours is an appropriate period of time for an operator to action a response from a poster agreeing to removal? If not please give reasons and indicate what other period would be appropriate.
18. If the poster does not respond – if the website operator does not hear back from the poster within the prescribed fixed period, then in order to retain the clause 5 defence the operator must take down the material within a further short period (we provisionally suggest 48 hours) and inform the complainant.
Q12. Do you agree that an operator should take down material within 48 hours of the expiry of the deadline if the poster has not responded within the prescribed time limit? If not please give reasons and indicate what other period would be appropriate.
19. In circumstances where the website operator removes material (either with the poster’s agreement or where the poster does not respond) it is possible that the poster will then repost the material. We provisionally consider that the first time material is reposted, the complainant should send a further notice of complaint, and the website operator should forward this to the poster in accordance with the clause 5 process. This will enable the poster to engage with the process in circumstances where he has either not been aware of the original notice (for example by being on holiday), or where new information has come to light which he considers justifies the original statement (in which case he will then be able to express a wish to defend the material on receipt of the second complaint).
20. However, if the poster persists in reposting the same material on further occasions, we provisionally consider that the website operator should be required to remove it upon notification by the complainant without following the clause 5 process.
Q13. Do you agree that the clause 5 process should apply in the normal way the first time that a poster reposts the material? If not please give reasons.
Q14. Do you agree that the operator should remove the material upon being informed by the complainant without following the clause 5 process if the poster persists in reposting? If not please give reasons.
21. If the poster wishes to stand by the material and agrees to release of contact details – if the poster wishes to stand by the material and is content for contact details to be released than the operator must respond to the complainant advising him of this and pass on the poster’s contact details to the complainant within a short fixed period (we provisionally suggest 48 hours). It is then the responsibility of the complainant to take matters further with the poster, and in the meantime there would be no obligation on the website operator to remove the post.
Q15. Do you agree that in the above circumstances the operator should provide the poster’s contact details to the complainant within 48 hours? If not please give reasons and indicate what other period is appropriate.
22. If the poster wishes to stand by the material but refuses to agree to release of contact details – if the poster refuses to agree to removal of the material complained of or to the release of his contact details than the operator will need:
a) to inform the complainant within a short fixed period (we provisionally suggest 48 hours) that the poster contests removal and is not willing to agree to release of his contact details, and that the material will remain up until a court order is granted for removal of material
b) advise the poster that it has notified the complainant.
23. If the poster refuses to give full contact details to the operator (or provides details which are clearly false) then to retain the defence the website operator would be required to take down the posting.
Q16. Do you agree that the operator should take down the material (if the poster refuses to give/provides obviously false contact details) in order to retain the clause 5 defence? If not please give reasons.24. If the complainant wishes to take further action he will need to seek a court order (a Norwich Pharmacal Order) for the website operator to release the identity and contact details that it has in relation to the poster. In order to provide sufficient protection for posters who may have valid reasons for not wishing their contact details to be released, we consider that the website operator, on being served with notice of such an application, should be required to notify the poster, so that the poster can then make representations to the court if he wishes to do so.
Q17. Do you agree that the operator should be required to notify the poster on receipt of an application for a Norwich Pharmacal Order? If not please give reasons.
Action by the complainant against the website operator for defamation25. Subsection (3) of clause 5 provides that the defence for website operators is defeated if the claimant shows that a) it was not possible for the claimant to identify the person who posted the statement; b) that the claimant gave the operator a notice of complaint in relation to the statement; and c) that the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations. Subsection (4) indicates that for the purposes of subsection (3)(a) it is possible for the claimant to “identify” a person only if he has sufficient information to bring proceedings against the person.
26. In the event of an action being brought, the claimant will need to show that action has not been taken by the operator within the prescribed time limits or that the operator has otherwise failed to follow the process. As noted above, we propose that the regulations should give the court discretion to allow the website operator a defence despite non-compliance with the prescribed time limit for any stage in the process where the court considers it in the interests of justice to do so. Claimants will also need to satisfy the court that before sending the notice of complaint to the website operator they did not have sufficient information to bring proceedings against the poster.
Consultation questions
Q1. Do you agree that the regulations should give the court the above discretion regarding time limits and that this should be exercised where the court considers it in the interests of justice to do so? If not please give reasons.
Q2. Do you agree with the above contents required for a notice of complaint? If not please give reasons.
Q3. Is there anything further that you think should be included? If yes please specify.Q4. Do you agree with the process that is proposed in relation to invalid notices of complaint? If not please give reasons.
Q5. Do you agree that 72 hours is an appropriate period of time for the operator to forward the complaint to the poster? If not please give reasons and indicate what other period would be appropriate.
Q6. Do you agree that the communication from the operator to the poster should contain the contents listed above? If not please give reasons?
Q7. Is there anything further that you think should be included? If yes please specify.
Q8. Do you agree with the time limit (of 7 days of sending) proposed for a poster to respond to an operator regarding a notice of complaint? If not please give reasons and indicate what other period would be appropriate.
Q9. Do you agree that a poster’s response to an operator should include the above elements? If not please give reasons?
Q10. Is there anything further you think should be included? If yes please specify.
Q11. Do you agree that 48 hours is an appropriate period of time for an operator to action a response from a poster agreeing to removal? If not please give reasons and indicate what other period would be appropriate.
Q12. Do you agree that an operator should take down material within 48 hours of the expiry of the deadline if the poster has not responded within the prescribed time limit? If not please give reasons and indicate what other period would be appropriate.
Q13. Do you agree that the clause 5 process should apply in the normal way the first time that a poster reposts the material? If not please give reasons.
Q14. Do you agree that the operator should remove the material upon being informed by the complainant without following the clause 5 process if the poster persists in reposting? If not please give reasons.
Q15. Do you agree that in the above circumstances the operator should provide the poster’s contact details to the complainant within 48 hours? If not please give reasons and indicate what other period is appropriate.
Q16. Do you agree that the operator should take down the material (if the poster refuses to give/provides obviously false contact details) in order to retain the clause 5 defence? If not please give reasons.
Q17. Do you agree that the operator should be required to notify the poster on receipt of an application for a Norwich Pharmacal Order? If not please give reasons.
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