This is the fifth and final post in this series about the Defamation Act 2013. In earlier posts I have dealt with general concerns about the Defamation Act 2013, concerns about section 1, “Serious harm” and the new statutory defences of “truth” and “honest comment” and “public interest“. In this post, I conclude by looking at the new intermediary defences in section 5 and section 10.
The Act adds two intermediary defences to defamation actions. It leaves unchanged the significant existing intermediary defences at section 1 of the Defamation Act 1996 (the “1996 Act”) and Regulations 17 to 19 of the Electronic Commerce (EC Directive) Regulations 2002 (the “Regulations”).
That means that there are now four separate statutory intermediary defences, all of varying forms, as follows:
- the defence in section 1 of the 1996 Act and the defences in sections 5 and 10 of the Act relate solely to claims in defamation, the defences in Regulations 17 to 19 of the Regulations relate to all civil claims;
- the defences in section 1 of the 1996 Act, section 5 of the Act and in Regulations 17 to 19 of the Regulations, are all to some extent (but in different ways) defeated by notice, the defence in section 10 of the Act is not;
- the defences in section 1 of the 1996 Act, section 5 of the Act and in Regulations 17 to 19 of the Regulations relate to substantive law, the defence in section 10 of the Act is a jurisdictional limitation;
- the defences in sections 5 and 10 of the Act depend to some extent (but again in different ways) on the practicality of issuing proceedings against the primary publisher, the defences in section 1 of the 1996 Act and in Regulations 17 to 19 of the Regulations do not; and
- the defences in section 5 of the Act and in Regulations 17 to 19 of the Regulations relate specifically to the Internet, the defences in section 1 of the 1996 Act and section 10 of the Act do not.
As well as these four statutory intermediary defences, there is also the question of common law liability in defamation for intermediaries and the potential existence of a fifth common law defence of innocent dissemination. This is often a vexed issue in Internet cases (see for example Bunt v Tilley & Ors  EWHC 407). In Metropolitan International Schools Ltd v Designtechnica Corp & Ors  EWHC 1765 (QB), Mr Justice Eady held that the common law defence did survive section 1 of the 1996 Act.
This leaves even the seasoned practitioner bewildered by the criss-cross of intermediary defences with overlapping issues. To a normal Internet user, victim of Internet libel, or Internet intermediary these defences are simply incomprehensible. Given the inherent international reach of the Internet and frequency of Internet abuse, it seems particularly unfortunate that the law here is now so unfathomable.
Moreover, leaving aside this general complexity, the section 5 defence is specifically somewhat problematic. In particular, there are likely to be occasions when it will provide inadequate reassurance to a website operator that it has a defence because it will not be certain that it was “not possible for the claimant to identify the person who posted the statement” (the test for this in subsection 5(4) that “the claimant has sufficient information to bring proceedings against the person” leaves plenty of ambiguity). Most operators, if there is any potential for liability, will adopt the safest course and take down the material.
Similarly there may be cases where the poster of the statement in question can be identified and so the operator certainly has a defence, but in reality no action against the poster is feasible, perhaps because the poster has no resources, is dead, or proves elusive. In such a case, it seems undesirable that the claimant has simply no recourse in any circumstances against an operator who continues to publish highly defamatory material unless and until the claimant secures judgement of a full libel claim against the poster.
I set out below a reform which would greatly simplify the intermediary defences while providing greater protection to victims and greater certainty to intermediaries. This provides that there be:
- primary publishers – that is authors or any other persons who took deliberate and concerted steps to cause the publication of the material – who will always be liable; and
- intermediaries – that is persons who “take steps to cause the publication of the material” or “who could take steps to prevent the publication of the material” and the court orders they should respectively stop taking those steps or take those steps. A court may make such an order only if:
- all reasonable steps have been taken by the claimant to notify the intermediary and any person who is a primary publisher in respect of the material of the application; and
- it is reasonable in all the circumstances to require that the intermediary takes the steps to stop the publication.
The advantages of this approach would include the following.
- It would be a comprehensive regime covering common law liability, as well as the appropriate statutory defences, and would apply across all civil actions, not just defamation.
- It thus gives certainty and clarity to intermediaries, ensuing that they have a defence without question until the court makes an order and so properly protecting freedom of expression, while affording protection to claimants more effectively than the current statutory regimes.
- It is entirely technology neutral.
It may be said that it is cumbersome to interpose the requirement of a court order before there is any possibility of any intermediary liability. However in reality, it is very common at the start of any claim where there is an intermediary for there to be an application to the Court for a Norwich Pharmacal disclosure order for details of the primary publisher, so the requirement for this order is unlikely to constitute a substantial additional burden. In any event, this regime is favourable to claimants over section 5 since it offers a realistic remedy against intermediaries in circumstances when section 5 offers none.
The full wording of the alternative proposal is as follows.
Alternative proposed text
(1) This section applies to any civil claim arising from the publication of material (a “publication claim”).
(2) No publication claim can be brought save in the circumstances prescribed in this section.
(3) A publication claim can be brought against any person (the “primary publisher”) who is
(a) the author of the material; or
(b) any other person who took deliberate and concerted steps to cause the publication of the material.
(4) In subsection (3), “author” means the originator of the statement, but does not include a person who did not intend that his statement be published at all
(5) Schedule 1 contains examples of persons who are not primary publishers.
(6) A publication claim can be brought against any person (the “intermediary”) who is not a primary publisher but who:
(a) takes steps to cause the publication of the material, or
(b) who could take steps to prevent the publication of the material,
provided the condition in sub-section (7) is satisfied.
(7) The condition referred to in in sub-section (6) is that a court has, on the application of the claimant, issued a declaration that the intermediary should stop publishing the material.
(8) A court will not issue a declaration pursuant to sub-section (7) unless it is satisfied that-
(a) all reasonable steps have been taken by the claimant to notify the intermediary and any person who is a primary publisher in respect of the material of the application, and
(b) it is reasonable in all the circumstances to require the intermediary to stop taking the steps to cause the publication of the material or to take steps to prevent the publication of the material.
(9) A declaration issued pursuant to sub-section (7) must specify the steps which the intermediary must take or must cease to take in respect of the publication of material.
(10) On an application to issue a declaration pursuant to sub-section (7), a court must have regard to-
(a) the preparedness of any primary publisher to defend the claim,
(b) the extent to which a claim against any primary publisher is feasible,
(c) the underlying merits of any such claim,
(d) the damage being caused to the claimant by the continuing publication of the material by the intermediary,
(e) the interests of any relevant party including those of any primary publisher, and
(f) any other matter which it considers to be relevant.
(11) On an application to issue a declaration pursuant to sub-section (7), the court may not issue any order as to the costs of the application against the intermediary save-
(a) where the intermediary has been grossly obstructive, or
(b) there are other exceptional circumstances justifying such an award.
(12) Where an intermediary receives a complaint regarding a publication claim, no action can be brought by any primary publisher against the intermediary in respect of any information reasonably disclosed to the complainant by the intermediary relating to the primary publisher which is potentially relevant to the claim.
(13) Section 1 of the Defamation Act 1996, and sections 5 and 10 of the Defamation Act 2013 are repealed.
Persons who are not primary publishers for the purposes of establishing intermediary liability.
In respect of all publication claims
1. A person involved in the publication of the material only as the broadcaster of a live programme containing the material in circumstances in which he has no effective control over the author of the material.
2. An operator of a website in respect of material posted on the website was not the person who posted the material on the website.
In respect of all publication claims excluding intellectual property claims
3. A person involved in the publication of the material only in printing, producing, distributing or selling printed material containing the material.
4. A person involved in the publication of the material only in processing, making copies of, distributing, exhibiting or selling a film or sound recording containing the material.
5. A person involved in the publication of the material only in processing, making copies of, distributing or selling any electronic medium in or on which the material is recorded, or in operating or providing any equipment, system or service by means of which the material is retrieved, copied, distributed or made available in electronic form.
Dan Tench is a partner in the Litigation Department at Olswang LLP