Defamation for website operators and users

As noted in our recent round-up of news, the majority of the Defamation Act 2013 relating to England and Wales, and some provisions concerning Scotland came into force on 1 January 2014[1].  A summary of the new Act is included in a Press Release by the Ministry of Justice, and non-statutory Explanatory Notes to the Act  are also availableSection 5 of the Act addresses the situation in which an action for defamation is brought against the operator of a website in respect of a statement posted on the site by a third-party, and works in conjunction with the Defamation (Operators of Websites) Regulations 2013 SI 3028, made under subsection 5 and applicable only to England and Wales.

Defamation Act 2013

The Defamation Act 2013 “rebalances the law on defamation to provide more effective protection for freedom of speech while at the same time ensuring that people who have been defamed are able to protect their reputation”, (MoJ).  A summary of the Act with links to relevant case-law and to Hansard reports of the debates during its passage through Parliament, is provided by the Explanatory Notes to the Act.

s1, Serious Harm: provides that a statement is not defamatory unless its publication has caused or is likely to cause “serious harm” to the reputation of the claimant. This extends to situations where publication is likely to cause serious harm in order to cover situations where the harm has not yet occurred at the time the action for defamation is commenced. Harm to the reputation of a body that trades for profit is not regarded as “serious harm” unless it has caused or is likely to cause the body serious financial loss.

Defences are provided in sections 2 to 7, and include:

s2, Truth: replaces the common law defence of justification with a new statutory defence of truth and provides new defence to apply where the defendant can show that the imputation conveyed by the statement complained of is substantially true.

– s3, Honest opinion: replaces the common law defence of fair comment with a new defence of honest opinion, which broadly reflects the current law, but does not include the current requirement for the opinion to be on a matter of public interest.

s4, Publication on matter of public interest: creates a new defence to an action for defamation of publication on a matter of public interest, based upon the the common law ‘Reynolds defence’, which it abolishes.

s5, Operators of websites: see below.

s6, Peer-reviewed statements in scientific or academic journals etc.: creates a new defence of qualified privilege relating to peer-reviewed material in scientific or academic journal, both electronic and hard copy. This is conditional on: the alleged defamatory statement relating to a scientific or academic matter; and a pre-publication, independent review by the editor or others with expertise in the field.

– s7, Reports etc protected by privilege: amends the provisions contained in the Defamation Act 1996 relating to the defences of absolute and qualified privilege to extend the circumstances in which these defences can be used.

Other sections of interest are:

s8, Single publication rule: introduces a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one year limitation period from the date of first publication: this replaces the longstanding “multiple publication rule” whereby each publication of defamatory material was deemed to give rise to a separate cause of action and subject to its own limitation period.

s9, Action against a person not domiciled in the UK or a Member State etc.: Limits the jurisdiction of a court in actions for defamation where the person is not domiciled in the United Kingdom; another (EU) Member State or a state which is a contracting party to the Lugano Convention. This requires that “of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement”

s10, Action against a person who was not the author, editor etc.: Limits the circumstances in which an action for defamation can be brought against someone who is not the primary publisher of an allegedly defamatory statement. A court must be satisfied that it is not reasonably practicable for an action to be brought against the “author”, “editor” and “publisher”  [as defined in  section 1 of the 1996 Act].

In addition

s14, Special damage: subsection (1) repeals Slander of Women Act 1891 which required that “words spoken and published… which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable”.  Subsection (2) abolishes the common law rule which provides an exemption from the requirement for special damage where the imputation conveyed by the statement complained of is that the claimant has a contagious or infectious disease[2].

Defamation (Operators of Websites) Regulations 2013 SI 3028

In considering the provisions within this statutory instrument, it is important to bear in mind that

– the main provisions relating to defamation are contained within the Act, and section 5 and the statutory instrument provide an optional defence applicable operators of websites hosting user-generated content where an action is brought in respect of a statement posted on the website, provided certain criteria within the SI are satisfied;

– the Section 5 defence applies if the operator can show that the he/she did not post the defamatory statement on the website, has followed the procedure detailed in the SI, and has met the tight time limits; the defence is not defeated “just because the operator moderates statements posted on the website”, [MoJ Guidance, para.2];

– However, if an operator takes a view on the validity of a complaint and either removes or allows the material to remain posted, he/she cannot rely upon Section 5 as a defence, although this does not affect the availability of any other defences  which may apply.

In addition to the defences within sections 2 to 7 of the SI, summarized below, cognisance should be taken of that available within Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 SI 2013 [3]. .

The rationale behind the provisions within the SI  is “to remove the need for an operator to have to reach a view on the merits of a complaint”. Hence, as soon as an operator expresses a view, either positive or negative, they are deemed to be associated with the statement that is the subject of the complaint.  To benefit from the defence, on receipt of a notice of complaint about allegedly defamatory material, the operator must comply with the process prescribed in Regulations. The Ministry of Justice has published Guidance on Section 5 of the Defamation Act 2013 and Regulations and Frequently Asked Questions. Neither the Guidance nor the FAQs has statutory authority, the former explaining

“The process is designed to be as straightforward as possible for people to use, and therefore there is no requirement on anyone involved to seek legal advice when following the process. However, anyone involved may seek legal advice at any stage if they wish”, [page 2, para. 6], and

“This guidance provides information on what has to be included in a Notice of Complaint and the process to be followed by website operators receiving a Notice of Complaint who wish to use the Section 5 defence. It explains the provisions which are set out in section 5 of the Act and the above.

Three parties are involved in the procedure

– “the operator”: the operator of the website on which the statement complained of in the notice of complaint is posted;

– “the poster”: the person who posted the statement complained of on the website referred to in the notice of complaint;

– “the complainant”: the person making a complaint,

the first two are defined in paragraph 1(2) of the SI, the third being self-evident. The sections within the FAQs address the concerns of each of these parties, and Boxes A and B within the Guidance summarize the essential components of a Notice of Complaint and the content of the communication from an operator to the poster of an allegedly defamatory statement, respectively.

The Flow Chart included in Ashley Hurst’s post Defamation Act 2013: Section 5, it’s decision time for website operators provides an easy to read summary of the options within the  complex notice and procedure for taking down posts described in the nine pages of Guidance.

Comment

The importance of the Section 5 defence will vary according to how a web site operates in relation to the posting of articles by its operators, those from guest authors, and to comments. However, common to all sites are the need for:

– Awareness of the Act and SI;

– A complaints policy consistent with the new legislation;

– Updated Terms and Conditions;

– Ability to acknowledge and deal with complaints within the 48-hour deadline if reliance on the section 5 defence is to be available;

In addressing the value of the new procedure, Ashley Hurst comments:

“Another frequently asked question by website operators … is “is it worth the hassle?” To which my answer is “probably not”, but it all depends on the size and objectives of the website operator. For those wishing to reduce risk and costs, it will almost certainly not be worth the hassle. Those who care passionately about freedom of expression and are willing to take risks to further that objective may think about it a little longer.”

Clearly it is up to each site to review its modus operandi and decide on how it intends to address the new legislation, on the basis of legal advice  considered necessary. Closer to home, however, the extent to which a web-based “academically-rigorous exploration of the interactions between law and religion” is considered in law as a journal and thereby attracts the defence within section 2(6) of the Act is clearly of interest to us, and possibly to one or two others.


[1] Provisions of the Act that extend to Scotland are:  section 6; section 7(9); section 15; section 16(5) (in so far as it relates to sections 6 and 7(9)); and section 17.

[2] Held to apply in case of imputations of leprosy, venereal disease and the plague.

[3] Hosting, Regulation 19: Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where— (a) the service provider—(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or (ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and (b) the recipient of the service was not acting under the authority or the control of the service provider

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