27 Jan Defamation act 2013 now in force
The new Defamation Act 2013 came into force on 1 January 2014. As well as introducing measures to make it harder for “libel tourists” to take advantage of the English justice system and to restrict the use of juries in libel trials, the Act also recognises the need to adapt defamation law to the way in which information is disseminated in the online environment.
The previous Defamation Act was implemented in 1996, a time when a more traditional view of the publisher prevailed, ie an entity operating mainly through printed media. In recent years, that perception has been severely strained as we have seen high-profile cases involving the mass dissemination of defamatory opinions by private individuals through Twitter, Facebook and other social media. The concept of “publication” has adapted to incorporate such online activity, and members of the general public are realising that they too are capable of becoming publishers of libel when they send their opinions out via the internet.
The new Act has enshrined some of the resulting common law in statute, while at the same time seeking to strike a balance between the competing demands of rights holders, ISPs and website operators, and website users. The first group feels that ISPs and website operators should do more to police content, the second group considers that the obligation to police content would be unjustly expensive and demanding on their resources, and the final group argues that giving ISPs and website operators arbitrary powers to remove content would go against the principle of freedom of speech.
The Act sets out a standard procedure through which those who feel that they have been the victim of defamatory comment can make a complaint to the website operator; compliance with the procedure offers a defence for those website operators whose sites have inadvertently hosted defamatory content.
The complaint procedure and defence are set out in s5 of the new Act in conjunction with the Defamation (Operators of Websites) Regulations 2013 (SI2013/3028).
A notice of complaint must be sent to the website operator, containing certain information, including:
- the meaning that the complainant attributes to the offending statement and the complainant’s explanation of the factual inaccuracies in the offending statement;
- confirmation that the complainant has been unable to identify the poster of the statement.
Once notice has been submitted by the complainant, the operator must act within 48 hours to either:
a) take down the offending statement if there is no way of contacting the poster electronically; or
b) if able to contact the poster electronically, send to the poster a copy of the complaint notice and a warning of removal of the statement at the end of five days (unless the poster responds stating that they object to the removal).
IF the poster so objects, and provides contact details, the operator must send those details to the Claimant within 48 hours.
While on the one hand there is now greater clarity and protection in law for website operators concerning inadvertent defamatory content, there is now a problem on the other hand that such statements can potentially remain on the website for a full five days after a complaint has been made – or longer if the poster exercises their right to object to removal of the statement. It seems that this procedure offers greater protection to website operators and defamers than it does to the victims of defamatory comments. The policy justification may be that the victim has the option of taking the matter to court, which is the only correct forum for deciding matters of libel and defamation.
Website operators who offer social networking or open discussion opportunities, which could potentially enable defamatory or abusive comment, should take care now to protect themselves so that they can take advantage of the new s5 defence: they should be aware of the new requirements and change their website Ts and Cs accordingly so as to set out the complaint procedure. They might also consider providing a standard complaint form for online submission.
For further advice please contact VICTORIA@VLTLEGAL.CO.UK or 07887 810020