The Ministry of Justice (the “MOJ”) last week published its draft regulations (the “Regulations”) for the notice and take-down procedure for website operators under Section 5 of the Defamation Act 2013 (“Section 5” and the “Act”).
Section 5 provides website operators with a new defence to defamation provided they follow the new procedure set out in the Regulations. There are no great surprises in the Regulations and my view remains the same as 6 months ago – that section 5 is more red herring than revolutionary despite months of consultation and debate.
It takes a lot of patience and mental agility to make sense of the Section 5 Regulations. The MOJ says the procedure has been “designed to be as straightforward as possible for people to use” but there are in excess of 20 cross-references in a procedure spanning over four pages with 47 FAQs and 10 pages of guidance. The MOJ does acknowledge that it is “open for [people] to seek legal advice should they wish to do so”, which is a very helpful suggestion because it will be needed unless further very clear guidance is provided.
The flow diagram (which can be viewed here) may be of some assistance but the overall impact of Section 5 can be summarised as follows:
- If the poster can be identified and served with legal proceedings, it provides a complete defence for the website operator and the claimant will need to pursue the poster. So, for example, in the case brought by Lord McAlpine against Sally Bercow, Twitter would have had a complete defence under the new Section 5, even if it decided not to take down the offending tweet.
- If the poster is anonymous, the website operator will have the option of following the Section 5 procedure set out in the Regulations but it can only keep publishing the content complained of and still rely on the defence if:
- The poster consents to be identified to the complainant; or
- The poster provides full contact details (including a postal address) to the website operator which can be disclosed pursuant to a court order.
- In all other circumstances, unless the website operator decides that it wants to defend the content on one of the other available grounds of defence such as truth or honest opinion, it will need to remove the content complained of and be careful to adhere to the complex web of time periods.
So in circumstances where the poster can be identified and served with proceedings, the defence is incredibly useful and provides significant extra back-up to the armoury of defences currently available to website operators. But in circumstances where the author is anonymous, the procedure is likely to do very little other than to delay take-down by approximately two weeks.
People blog and comment on websites anonymously for a reason: because they do not want to be identified. Why would an anonymous blogger suddenly identify himself without a court order because a website operator tells him that a legal complaint has been received? There is absolutely no incentive, especially for a whistleblower, someone intent on causing damage, or someone who cannot afford to be sued, to come forward and identify themself voluntarily as a potential defendant.
The notice of complaint
Despite the supposed simplicity of the process, there is a lot of detail, as is necessary if a procedure of this type is to work in practice. In particular, complainants must be very careful to submit a valid notice in order to kick-start the procedure.
The requirements for a notice of complaint are set out not-so-conveniently in two separate pieces of legislation: Section 5 of the Act and Regulation 2 of the Regulations. Their combined effect is to require a valid notice of complaint to contain the following:
- the name and email address of the complainant;
- the URL or location of the statement complained of;
- an explanation of what the statement says and why it is defamatory of the complainant;
- the meaning the complainant attributes to the statement complained of;
- the aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact;
- confirmation that the complainant does not have sufficient information about the author to bring proceedings against them; and
- confirmation of whether the complainant consents to his name and email address being provided to the poster.
If the notice is missing any of these elements, the website operator can reject it provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice. It need not explain why the notice received is deficient.
It is very important to note that these requirements do not set a legal threshold. The complainant need not be correct either in law or in fact, for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse; he simply needs to tick the boxes. And there will no doubt be plenty of “reputation management” firms queuing up to do just that. But at least the above requirements should at least focus the complainant’s mind on doing more than simply asserting that the words are defamatory (as required by previous drafts of the Section 5 regime).
Where the complainant is a company, it will also need to explain in the notice complaint why the material complained of has caused or is likely to cause serious financial loss. This is not specified in the Regulations but is mentioned at paragraph 11 of the guidance and is implicit in the refinement of the definition of “defamatory” provided by Section 1 of the Act.
Much debate was had about the length of time that the process should take. Those in the claimant camp argued that short time periods are necessary given the great damage that can be caused very quickly on the internet. Website operators, particularly some of the larger ones, rightly pointed to the practical realities of receiving large volumes of complaints over factual circumstances that they know nothing about.
The MOJ has sought to balance these concerns with some fairly stringent “48 hour” time periods for the website operators that do not include weekends and bank holidays. Such time periods apply to each stage in the process where the website operator has to do something. So, for example, if Google receives a complaint at 5pm GMT on a Friday, it must by 5pm GMT on the following Tuesday acknowledge receipt of the complaint and either pass it on to the poster with certain details about the Section 5 procedure or reject the notice as deficient.
The poster has until midnight on the fifth day (including non-business days) following receipt of the website operator’s notice to reply and provide full contact details if he wishes the material to continue to be published.
It will be open to the website operator to argue at some later date that there were good reasons why a failure to comply with the stipulated time periods should not prevent it from relying on the Section 5 defence. So it is possible that website operators dealing with large volumes of complaints may have some slippage, but they won’t know for sure until a judge exercises discretion on that issue.
Notices must be in writing and website operators are encouraged to provide a means for notices to be sent electronically. Unlike the requirement under Regulation 6 of the E-Commerce Regulations 2002 for website operators to provide an email address, the proposed Section 5 procedure does not specify any such requirement. Given the short time limits for action imposed on website operators it is entirely in website operators’ interests to set up appropriate electronic complaints procedures and there is a strong case for insisting that notices must be sent electronically through such means to avoid arguments about when notices are received as this is likely to be an area of considerable uncertainty. In practice, the burden is likely to be on website operators to demonstrate that a notice has not been received or validly provided should a dispute arise with complainant.
Where does it all leave website operators?
I have previously discussed on this blog (here and here) the interrelationship between Section 5 and the other defences available to website operators and the position remains the same. Many website operators will still be able to rely on the defences provided by Section 1 of the Defamation Act 1996 (“Section 1”), Regulation 19 of the E-Commerce Regulations 2002 (“Regulation 19”) and the traditional defences to libel such as truth and honest comment.
Both Section 1 and Regulation 19 impose legal thresholds (as opposed to tick-box checklists) before the website operator loses the defence. There will be cases where a claimant’s notice of complaint has ticked all the boxes for the purpose of Section 5 but does not demonstrate a legal course of action in libel (for example because the serious harm threshold is not met). Conversely, there will be cases where a website operator is on notice of “unlawful” material for the purposes of Regulation 19 but where the Claimant has not ticked all the boxes for the purposes of Section 5.
We are therefore likely to see Regulation 19, Section 1, and Section 5 all run in tandem. Also thrown into the mix will be the new Section 10 of the Act, which will provide website operators with a knock-out blow in circumstances where they can show that it would be “reasonably practicable” to bring an action against the author, editor, or publisher (as defined in the Defamation Act 1996). Website operators may rely on this defence even where the poster is anonymous if a Norwich Pharmacal Order would reveal the poster, although this is an area of considerable uncertainty.
It may be simpler for some website operators to ignore the Section 5 procedure altogether and simply assess each case on the merits as it comes in by reference to the existing defences. Others may seek to exhaust the Section 5 procedure and when the anonymous poster fails to come forward, then assess whether to remove the posting by reference to the other defences.
And so Section 5 has strengthened the position of website operators but it certainly hasn’t simplified the law in this rapidly developing area. The MOJ’s guidance is helpful but it will need to be simplified further to avoid lots of confusion.
Ashley Hurst is a Partner at Olswang LLP specialising in media and internet disputes