Defamation Act 2013: A boost for free speech, Part 3: Intermediary liability – Timothy Pinto

23 05 2013

In this third part of four posts by Timothy Pinto of Taylor Wessing, he assesses the liability of intermediaries under the Defamation Act 2013.  Part 1 dealt with “Serious Harm, Truth and Honest Opinion” and Part 2 with “Public Interest and Privilege.

Operators of websites and persons who are not the author, editor or publisher of a statement complained of (sections 5, 10 and 13)

Operators of websites (section 5)

The 2013 Act does not abolish the defence under Section 1 of the Defamation Act 1996 or the hosting exemption under Regulation 19 of the E-Commerce Regulations. It adds the following defence for operators of websites under section 5:

(1)  This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website.

(2)   It is a defence for the operator to show that it was not the operator who posted the statement on the website.

(3)  The defence is defeated if the claimant shows that —

a)     it was not possible for the claimant to identify the person who posted the statement,

b)     the claimant gave the operator a notice of complaint in relation to the statement, and

c)     the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.

 (4)   For the purposes of [(a) above], it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.

(5)   The defence under this section is defeated if the claimant shows that the operator of the website has acted with malice in relation to the posting of the statement concerned.

(6)   The defence under this section is not defeated by reason only of the fact that the operator of the website moderates the statements posted on it by others.

The Act states that regulations must be made which determine when and how a website operator must respond to a notice of complaint (including as to taking the post down and revealing the identity or contact details of the poster). A notice of complaint includes a notice which:

a)     specifies the complainant’s name,

 b)     sets out the statement concerned and explains why it is defamatory of the complainant,

 c)     specifies where on the website the statement was posted, and

 d)     contains such other information as may be specified in regulations.

In a nutshell, subject to the regulations, it appears that a website operator will have a defence in relation to a defamatory statement posted by a third party on its site if:

a)     The claimant can identify the poster; or

b)    The operator has not received a notice of complaint; or

c)     The owner, on receipt of a notice of complaint complies with the regulations e.g. it takes down the post and/or provides the claimant with the identity or contact details of the poster.

There is likely to be litigation on what is meant by “operator of a website” and “posted on the website”. These appear to be relatively old-fashioned terms as a lot of user generated content is nowadays published via mobile platforms and apps. In addition, there are many different levels of involvement in operating a website. It seems likely that a pure ISP is not the operator of a website on which the statement complained of has been posted. Pure ISPs are more likely to try to rely on section 10 of the 2013 Act (see below), as well as section 1 of the 1996 Act and Regulation 19 of the E-Commerce Regulations..

Action against a person who is not the author, editor, etc (section 10)

In addition to the website operator defence,

a court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.”

This is an additional potential safe-harbour for intermediaries, such as ISPs and social media platforms. It means, for example, that if it is reasonably practicable for a claimant to sue the person who posted a comment on social media, then action cannot be taken against the social media platform (regardless of compliance under the website operator defence) or the ISP. In most cases it is likely to be practical to sue the author (if identifiable), particularly given that the courts are sometimes prepared to give permission for claimants to serve proceedings via social media platforms.

It appears that the regulations for the website operator defence will make provision about identifying the poster or giving information to enable the claimant to make a Norwich Pharmacal application against another intermediary to ascertain the poster’s identity. If this leads to nothing and/or the claimant cannot realistically take action against the poster, then it can potentially take action against an intermediary.

However, some intermediaries may not be publishers at common law at all and so would not need to rely on any of the defences (for more information. see e.g. Bunt v Tilley; Metropolitan Schools v Google and Tamiz v Google). Further or alternatively, the intermediary itself in many cases is likely to have a defence under section 5 of the 2013 Act (if it is a website owner) and under section 1 of the 1996 Act and/or Regulation 19, provided it has promptly removed the content once it has received sufficient notice.

Section 10 is not only likely to apply to those hosting social media, it also likely applies to the groups specified in section 1(3) of the 1996 Act as not being an author, editor or publisher. These include a printer, a distributor or seller of printed material (e.g. a bookshop) or the broadcaster of a live programme containing the statement where the broadcaster has no effective control over the maker of the statement. Therefore, for example, action cannot be taken against a printer or bookshop if the claimant can take action against the author, editor or publisher.

It is not clear when the court will be satisfied that “it is not reasonably practicable for an action to be brought against the author, editor or publisher”. For example, before the court will rule that an action is not practicable:

a)     Does a claimant need to have made one or more Norwich Pharmacal application before the threshold has been met?

b)    Does the fact that the author, editor or publisher is in another country make a difference and, if so, in which countries is action not reasonably practicable?

Potential boost for the UK safe-harbour for intermediaries

The combination of sections 5 and 10 of the 2013 Act, plus the section 1 defence and Regulation 19 exemption mean that potential defamation defendants who are intermediaries have been given a significant boost under English law. Whilst it will take time for the full impact of the 2013 Act to be known and the website owner defence depends on what the regulations will say, England now seems to be a more attractive and safer place to print, distribute and host third party content. The legislative combination does not go as far as s.230 CDA under US law, but English libel claimants and overseas libel tourists hoping to target intermediaries may need to take out their atlas and shop elsewhere.

Order to remove statement or cease distribution etc. (section 13)

Whether or not an intermediary is liable, the 2013 Act gives the court power to order the intermediary to remove or to stop distributing the defamatory statement. In particular, the court may order –

a)     the operator of a website on which the defamatory statement is posted to remove the statement, or

 b)     any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.

For example, if the claimant wins against a primary publisher (e.g. the author of the post), but the intermediary is not liable, the court can still potentially order the intermediary to remove or stop distributing the offending material.

The Single publication rule, forum shopping and juries will be considered in the final part of this four part analysis of the Defamation Act 2013.

Timothy Pinto is Senior Counsel in the Trade Marks, Copyright & Media team at Taylor Wessing. This blog post has been reproduced from the article ‘Defamation Act 2013 – Taylor Wessing Analysis‘.


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