Website operators facing defamation action over users’ posts can now rely on the new ‘website operator’ defence. To use the defence, the operator must comply with a prescribed process after receiving a notice of complaint about allegedly defamatory material posted online.
The defence follows increasing concerns about defamatory digital content posted by website users – particularly anonymous users. But a critical question is, just how useful and cost effective will the new defence be in practice?
The website operator defence under s5(3) of the Defamation Act 2013 (which came into force 1 January 2014) will be available to operators of websites hosting user-generated content. This means operators of websites which, for instance, include comment and message boards, social media functions and forums.
Before the new Act, operators could avoid liability by removing offending material when notified of its existence. Now, so long as they follow the correct procedure laid down in the Defamation (Operators of Websites) Regulations 2013 they can avoid liability - and may now be able to retain the material complained of on the website.
What is clear is that the defence will not succeed if the claimant can show:
- 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.
The poster must be identified: a user can only be ‘identified’ for these purposes if the claimant has enough information to bring proceedings against the website user. The claimant must then pursue that poster. The website operator defence remains in place under these circumstances even if the offending post is not removed.
Where the poster can’t be identified/is anonymous: where the poster does not respond, the operator must remove the material. Where the poster cannot be identified, the operator must remove the posting within 48 hours. It may rely on the defence if the poster consents to be identified to the claimant, or provides full contact details (including postal address) to the website operator.
Other lines of defence: where the poster provides his or her name and address to the operator and objects to the offending material being removed, and refuses to consent to his or her details being passed to the complainant, the operator need not remove the material. In these circumstances, the complainant would need to seek a court order compelling the operator to disclose the poster’s contact details.
If the claimant can show the operator acted with malice in relation to the posting complained of, the defence will fail. Interestingly, the Act makes clear that the fact that the website operator moderates statements posted by third parties will not of itself defeat the defence.
In many circumstances, previous legislation still provides an adequate defence for website operators. Notably, section 1 Defamation Act 1996 will enable operators to argue that they cannot be considered ‘publisher’ since they merely provided ‘access to a communications system by means of which the statement is transmitted (or made available) by a person over whom he has no effective control’. Regulation 19 of the E-Commerce Regulations 2002 protects service providers who have hosted defamatory content unknowingly, and removed it swiftly on demand.
In other cases, a valid defence may be brought on grounds of truth, honest opinion or public interest. However, the operator will still need to remove the offending post within timelines set out in the Regulations.
Areas of concern
Whilst undoubtedly a welcome development for operators, the regulations are complex (particularly where the poster of the offending material cannot be identified) and raise a number of issues.
Material remaining online: where the poster is held liable by the complainant and the material is not removed from the website, the operator avoids liability - while continuing to publish the material. This conundrum potentially exacerbates any damage to the claimant, particularly where the claimant is seeking swift action.
Need for speed: on receipt of the Notice the operator must respond within 48 hours. If the claim is defended, it could take some time for a hearing. There is argument here for a fast track process to resolve such claims within reasonable time limits. That said, balance must be struck between the need for swift resolution of a claim, and giving website operators adequate time to address the issues raised and seeking to protect users’ right to freedom of expression.
Consent to disclosing identity: when the poster is sufficiently identified, it seems unlikely consent to disclosing his or her identity will be readily forthcoming. Most offending posts are made anonymous for good reason: the posters do not want to be identified. If the poster does not consent, the claimant will have to apply to court for an order that the information be handed over.
Costs: where the poster defends the claim, the costs implications for the claimant could be huge – and costs may well be difficult to recover if the claim fails.
How should website operators respond?
The potential costs implications are likely to be a deciding factor in whether they chose to rely on the new defence. The potential risk to their reputation may also be a major issue. Understanding the complexities of the defence is critical (even the Notice needs to comply with strict requirements in order to be a valid Notice). See this flow chart from law firm Olswang which helps clarify the process.
In practice, many website operators will have no choice but to take down offending posts because identification is simply not possible. In the majority of cases, this affords the claimant a swift, effective remedy.
SEQ Legal will be watching closely to see how the defence works in practice - and how the courts interpret the new legislation as the first cases reach court.