Section 5 of the Defamation Act 2013 (“the 2013 Act”) sets out the new process for dealing with operators of websites. In addition, there are recently published draft Defamation (Operators of Website) Regulations 2013 (“the Regulations”) which are currently before parliament.
Under section 5 of the 2013 Act, an operator of a website will have a defence to a defamation action which is being brought in relation to a statement posted on their website, if they can show it was not the operator who posted the statement. This defence can be defeated by the claimant if they can show that:
- it was not possible for the claimant to identify the person who posted the statement;
- the claimant gave the operator a notice of complaint in relation to the statement; and
- the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.
However, if the post is made by an anonymous user, an operator must comply with the procedure set out in the Regulations.
Notice of complaint
Under Section 5(6) of the 2013 Act, the notice of complaint needs to specify the complainant’s name; set out the statement concerned and explain why it is defamatory of the complainant and specify where on the website the statement was posted. The Regulations, at Regulation 2, also confirm that the notice of complaint needs to:
- specify the electronic mail address at which the complainant can be contacted;
- set out the meaning which the complainant attributes to the statement referred to in the notice;
- set out the aspects of the statement with the complainant believes are factually inaccurate or opinions not supported by fact;
- confirm that the complainant does not have sufficient information about the poster to bring proceedings against that person; and
- confirm whether the complainant consents to the operator providing the poster with the complainant’s name and the complainant’s electronic email address.
If a defective notice is served by the complainant, then in accordance with Regulation 4, the operator of the website must, within 48 hours of receiving the notice of complaint, notify the complainant in writing that their notice does not comply with the requirements under the 2013 Act and the Regulations and detail what the provision of those requirements are.
Actions of operator in response to a notice of complaint
These are detailed in Regulation 3 and the Schedule.
Within 48 hours of receiving a valid notice of complaint, the operator must, if he has the poster’s contact details, send a copy of the notice of complaint to the poster, redacted to conceal the complainant’s name and address if the complainant does not consent to this information being released to the poster. The operator needs to notify the poster that the statement may be removed unless he receives a written response from the poster within 5 days which confirms whether the poster agrees to the statement being removed from the locations of the website specified in the notice of complaint and if not, he will need to provide his full name and postal address and confirm whether he consents to this information being released to the complainant. Once this has been done, the operator should write to the complainant acknowledging receipt of the notice and confirming the steps which have been taken.
If the operator is unable to contact the poster, then the operator must remove the statement from the locations in the website mentioned within the valid notice of complaint within 48 hours. If the poster fails to respond to the operator within 5 days, the operator must remove the statement and notify the complainant that this has occurred.
If the poster responds within 5 days, there are various actions to be taken depending upon the response received.
- Poster does not include all of the required information - operator must remove the statement from the website within 48 hours of receiving the response and confirm the same to the complainant in writing.
- Poster consents to the statement being removed - operator must remove the statement from the website within 48 hours of receiving the response and confirm the same to the complainant in writing.
- Poster does not consent to the statement being removed - operator must write to the complainant within 48 hours informing them that the poster does not agree to the statement being removed and confirm that the statement has not been removed. If the poster has consented to his name and address being provided to the complainant this must be included but if the poster has not consented, the operator must inform the complainant of this.
If the complainant complains to the operator about the persistent re-posting of a statement, then the operator must remove the statement within 48 hours of receiving the notice of complaint. A relevant statement in this regard will be a statement which conveys the same of substantially the same imputation as the previous notices of complaint; is posted on the same website and was posted on that same website by the same person.
In respect of the 48 hours, Regulation 1(3) confirms that any period of time which falls on Saturday, Sunday, Good Friday, Christmas Day or any day which is a bank holiday under the Banking and Financial Dealings Act 1971(b) in England and Wales is to be disregarded.
Implications of the regulations
An operator may seek to rely on the fact that they are not the author, editor or publisher of a statement and therefore, under Section 10 of the 2013 Act, a court does not have that jurisdiction to hear and determine an action for defamation brought against them unless it is not reasonably practicable for the action to be brought against the author, editor of publisher. An operator should bear in mind the decision made in Tamiz v Google Inc  EWCA Civ 68. The court in this case confirmed that upon receipt of a notice of complaint, a website operator could be considered to be a “publisher”.
It appears that a significant repercussion of receiving a notice of complaint is that the website operator will be put on notice of a defamatory statement made by a third party. Therefore, an operator of a website is going to have to ensure they comply with the strict regulations set out above in order to avoid liability.
It may be the case that operators do not wish to become embroiled in claims and in order to circumvent the Regulations, they may simply remove a potentially defamatory statement by simply removing it as soon as they receive a notice of complaint.