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Defamation Act and “Operators of Websites” regulations: in force 1 January 2014

lord-mcnallyRegulations governing the operation of the new defence for website operators featuring user-generated content which is set out in section 5 of the Defamation act 2013 have been approved by both Houses of Parliament.  The Act, and the Regulations, are to come into effect on January 1, 2014, justice minister Lord McNally has told peers.

But, he told peers, a website operator would not be able to rely on the section 5 defence if a claimant shows can show that he or she did not know who posted the statement in question on the website, but had complained in the proper manner to the site’s operator, and that operator failed to respond to the complaint in the way detailed in the regulations.

“The approach that we have taken in these regulations aims to support freedom of expression by allowing operators generally to retain the benefit of the defence without the need for material to be taken down where the person who has posted it co-operates with the process and wishes to stand by the material.  In such a case the process will help to enable complainants to resolve their concerns with, or take action against, the poster of the allegedly defamatory material. Equally it will ensure that, to rely on the defence, an operator must remove the material complained about where the poster cannot be identified or is unwilling to engage in the process.”

 Website operators wishing to use the Section 5 defence would have to carry out prescribed actions within a short fixed time limit, he said.

 “The time limits are subject to a general discretion, in the event of a defamation action being brought against the operator, for the court to waive any time limit if it considers that it is in the interests of justice to do so,” Lord McNally went on.

 “That will ensure that the defence is not lost through, for example, an inadvertent or unavoidable failure by an operator to comply with a time limit if the court thinks that this would be unfair.

 He added:

“The process is not compulsory, and operators can still choose either to remove a statement immediately on receipt of a complaint, or allow it to remain posted. An operator which takes either course of action can of course seek to rely on any other defences that may be available against a defamation action.”

A person complaining would trigger the process established by the regulations by sending a notice of complaint about the statement to the website’s operator.

Regulation 2 and Section 5(6) of the Act say the notice must say where on the website the statement is posted, detail what it says and why it is defames the complainant, and explain the meaning they claim it bears as well as the aspects they believe are factually inaccurate or are opinions not supported by fact.

Complainants must also confirm that they do not have sufficient information about the poster to be able to take proceedings directly against them.

Lord McNally said complainants did not have to provide detailed evidence to support what they said, adding that “the intention is that the poster should have sufficient information to reach an informed decision on how to respond”.

Complainants also had to give their names and an e-mail address at which they could be contacted, but could ask the operator not to give this information to the person who posted the material in question.

Regulation 4 says that if a complainant did not provide all the information required, a website operator wishing to retain the section 5 defence, within 48 hours of receiving the notice of complaint, to let the complainant know, in writing, and detail what was required for a notice to be valid.

But this 48-hour deadline exclude non-business days such as weekends.

 “The operator is not required to specify exactly what it considers is wrong with the notice that the complainant has sent. This avoids imposing any obligation on an operator to guide or advise the complainant.  However, the guidance accompanying the regulations makes clear that operators can provide this information to the complainant if they wish to do so.”

Paragraph 2 of the Schedule to the regulations required that an operator wishing to rely on the defence who receives a valid notice of complaint must contact the person who posted the statement complained of within 48 hours, while paragraph 4 said the operator also had to inform the complainant that this has been done.

Lord McNally said: “If the operator has no means of contacting the poster by e-mail or another means of private electronic messaging, paragraph 3 of the Schedule to the regulations provides that, in order to retain the defence, the operator must remove the statement within 48 hours and must inform the complainant that this has been done.

Paragraph 2 of the Schedule detailed the information the operator had to give the poster to enable him or her to respond to the complaint.

The poster had to respond by midnight at the end of the fifth day after the day on which the operator sent him or her the information.

The website operator had to specify the calendar date on which the deadline expired and ask the poster to confirm within that time to confirm whether he or she wished the statement to be removed from the website and, if not, to give the operator his or her name and postal address and confirm whether he or she agreed to the operator giving this information to the complainant.

Paragraphs 5, 6 and 7 of the Schedule dealt respectively with situations where a poster failed to respond within the prescribed time period, or responded but did not provide all the information requested, or agreed to the removal of the statement.  Lord MacNally said

 “In all these circumstances the operator is then required to remove the statement within 48 hours and to inform the complainant that this has been done.  If the poster provides a name and postal address that a reasonable operator would consider to be obviously false, the operator is required to treat the response as not containing all the required information, and hence must remove the statement.”

If a statement was removed before an operator was required to do so, paragraph 1 of the Schedule specified that the operator was taken to have complied with the relevant requirement.

Paragraph 8 of the schedule said that if a poster wanted the statement to stay on the website and provided the relevant contact details, the operator had to inform the complainant within 48 hours that the statement had not been removed and, if the poster agreed, pass his or her contact details on to the complainant.

The operator also had to tell a complainant if a poster did not agree to release his or her contact details.

Provided it has complied with these requirements, the operator will have a defence under Section 5 unless it can be shown that the operator acted with malice in relation to the posting of the statement concerned,” Lord McNally said.

 “Where the poster has not consented to release of his or her contact details to the complainant, it will be a matter for the complainant to consider what further action he may wish to take.”  A complainant could, for example, ask the High Court to order a website operator to release the information it had on the poster’s identity and contact details so that he or she could sue the poster.Paragraph 9 of the schedule gave further protection for complainants in cases when material was removed following a notice of complaint, but the poster persisted in re-posting the same or substantially the same material on the same website.

On the first such occasion, to keep the Section 5 defence the operator must follow the full process and seek the poster’s views.

But an operator which was told by a complainant that the poster has put the same or substantially the same statement on the website on two or more previous occasions had to remove the statement within 48 hours of receiving the notice of complaint without seeking to contact the poster again.

The section 5 defence is also available to the operators of moderated websites. Section 5 (12) of the Act states: “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.”

This post originally appeared on Media Lawyer, the Press Association’s indispensable subscription service covering all aspects of media law.  It reproduced with permission and thanks.

1 Comment

  1. Nigel

    This law will have minimal impact on online speech.

    First, any operator can set up an anonymous WordPress, Twitter and even Facebook account and chain it through overseas proxies, Tor or non-logging VPNs.

    Most of these online services are US based and shielded from civil liability under § 230 of the CDA and also qualify for safe harbor under the InfoSoc Directive.

    What they “know” about their users may be everything or only an IP address which is only a small led in the investigation.

    Second, most trolling and defamation takes place on Facebook and other social networks, and even a window of 48 hours before the offending post i is taken down may cause irreparable damage to reputation.

    The law is attempting to plug a hole but the net interprets censorship as damage and routes around it.

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