Website operators seeking to qualify for a defence to possible defamation claims in respect of comments published on their websites contained in the Defamation Act 2013 will have two days (subject to the courts’ discretion) to notify the authors of the comments of the complaint, under the recently published draft Defamation (Operators of Websites) Regulations 2013 (the “Regulations“), currently before parliament. The explanatory guidance published with the Regulations states that they are intended to “be as straightforward as possible for people to use”. However, they are complex, largely bureaucratic and the strict timelines mean that considerable internal procedures and training will be required to ensure compliance. This risks the protection offered by the Regulations being ignored in many cases, as it may be more commercially viable for operators to rely on pre-existing defences.
Section 5 of the Defamation Act 2013
The Regulations set out the detail of the defence contained in section 5 of the Defamation Act 2013 (the “2013 Act“), which received royal assent on 25 April 2013, but is not yet in force.
Section 5 of the 2013 Act provides a new defence for the operator of a website where a defamation action is brought in respect of a statement posted on that website if it was not the operator who posted the statement. The rationale for the defence is that any defamation claim in this context should be between the claimant and the poster of the statement in question.
In circumstances where the poster of the statement is identifiable by the claimant, section 5 will provide a complete defence. In practice, however, the majority of problematic cases are likely to involve posts by anonymous users. In this situation, the operator must comply with the procedure set out in the Regulations in order to qualify for the defence.
Section 5(3) of the 2013 Act provides that the defence is defeated if the claimant shows that:
(a) it was not possible for the claimant to identify the person who posted the statement;
(b) the claimant gave the operator a notice of complaint in relation to the statement; and
(c) the operator failed to respond to the notice of complaint in accordance with the Regulations.
The defence is also defeated if the claimant can show that the operator of the website has acted with malice in relation to the posting of the statement concerned. However, moderation by the operator of the website of comments posted on it by others does not invalidate the defence.
The Regulations seek to flesh out the detail of section 5(3) above. The key components of the Regulations are set out below.
The Claimants’ Notice of Complaint
The Regulations go some way to allay concerns expressed during the parliamentary debates on the Bill and the recommendation of the Parliamentary Joint Committee on Human Rights (‘Seventh Report – Legislative Scrutiny: Defamation Bill’, 4 December 2012) about the potential damage to freedom of speech. The Regulations seek to prevent lawful posts being suppressed by requiring claimants (at Regulation 2) to set out in the Notice of Complaint the statement concerned and explaining why it is defamatory of the claimant, as well as the meaning the claimant says the statement bears and the aspects of the statement which the claimant believes are factually inaccurate, or opinions unsupported by fact. This is intended to prevent frivolous claims creating a “cooling effect” whereby operators remove posts at the first sight of complaint.
A valid Notice of Complaint must also confirm that the claimant does not have enough information about the poster to bring proceedings against that person and specify whether the claimant consents to the website operator supplying the claimant’s name and email address to the poster.
If a Notice of Complaint fails to set out all necessary information the website operator must notify the claimant that the notice is insufficient within 48 hours. The operator is not required to specify how the Notice of Complaint is deficient (Regulation 4).
The website operator’s duties in complying with a Notice of Complaint
Compliance with the Regulations is not mandatory. However, in order to benefit from the defence provided by section 5 of the 2013 Act, a number of alternate responses are required of the operator under the Regulations, depending on the response of the poster (as set out in Regulation 3 and the Schedule, and summarised below).
Upon receipt of a valid Notice of Complaint, if it can do so, the operator must contact the poster of the relevant statement within 48 hours of receipt. The operator must send a copy of the Notice of Complaint to the poster, requiring a response from the poster, within 5 days after the date the notification was sent, as to whether the poster:
(a) consents to the material being removed from the website; and
(b) consents to identification details being provided to the claimant.
If it cannot contact the poster, the operator must remove the relevant statement from the website within 48 hours of receiving the valid Notice of Complaint and notify the claimant that it has done so. Similarly, if the poster is contacted but fails to respond within 5 days of the contact, or the poster asks for the statement to be removed, the website operator must remove the statement within 48 hours of this point and notify the claimant accordingly.
If the poster informs the operator within the statutory time limit that it does not want the statement removed, the operator must inform the claimant of this, again within 48 hours. In addition, the poster will either consent to his contact details being forwarded to the claimant, or he will not. The operator must either provide the claimant with the poster’s details if consent is given, or inform the claimant that the poster has refused to allow his details to be passed on.
If the operator successfully complies with its obligations under the Regulations, it will benefit from the defence to any action brought by the claimant in respect of the statement. The operator’s involvement in the action will cease, subject to a possible court order being sought by the claimant to obtain the poster’s details, if consent to provide them was refused.
The Regulations also provide that:
(a) for the purposes of calculating the 48 hour time limits, any time which falls on a weekend or public holiday are excluded (Regulation 1(3)); and
(b) the court has discretion to extend the time limits in the Regulations in the interests of justice.
The short time frame for compliance suggests that the Regulations foresee website operators putting systems in place to comply with their requirements. As long as the strict requirements are complied with, an operator will avoid liability regardless of whether the poster is identifiable to the claimant.
It is not unreasonable to suspect, however, that operators may instead attempt to rely on previously available defences to defamation actions rather than invest resources in internal processes to ensure compliance with the Regulations. However, as explained below, this may not always be possible.
Section 1 of the Defamation Act 1996, which remains in force, provides a defence where an operator shows that he was not the author, editor or publisher of the statement complained of, took reasonable care in relation to its publication and did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement. Under section 1(3) a person is not considered the author, editor or publisher if he is involved:
“(c) in processing, making of copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form; and
(e) as the operator of or provider of 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 Electronic Commerce (EC Directive) Regulations 2002 (implementing the EU’s Electronic Commerce Directive 2000 (2000/31/EC)) (“ECommerce Regulations“) also provides a defence under which “hosting intermediaries” shall not be liable if they do not have actual knowledge of unlawful activity.
Section 10 of the 2013 Act also provides that:
“a court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher [author, editor or publisher having the same meaning as section 1 of the Defamation Act 1996]”.
The above provisions present alternative means of a website operator protecting itself from a claim for defamation. Unlike the Regulations, they merely require the operator to show that it was not a “publisher” and/or did not know or have reason to believe it was implicated in the publication of a defamatory statement.
In this context it is important to note that the Court of Appeal in Tamiz v Google Inc  EWCA Civ 68 recently confirmed that a website operator could be considered a “publisher” after being put on notice of a complaint, but not before. This decision could have significant consequences when considering the interaction between the above provisions and the Regulations, as there would appear to be little doubt that a formal Notice of Complaint under the Regulations will put an operator on notice of a complaint.
Therefore, one significant implication of the Regulations is likely to be that the receipt of a Notice of Complaint (in respect of a statement made by a poster other than the operator) is likely to put an operator on notice of a defamatory statement and therefore remove the availability of a defence under section 1 of the Defamation Act 1996, Regulation 19 of ECommerce Regulations and section 10 of the 2013 Act.
Ironically, this may lead to an increased likelihood of operators (particularly commercial operators) minimising the risk of defamation claims by assessing claims on their merits and promptly removing statements where necessary without recourse to the Regulations procedure so as to not risk the loss of other defences. Whether this proves to be the case in practice remains to be seen.
In conclusion, where the poster of a defamatory statement is identifiable to the claimant, section 5 of the 2013 Act will provide another defence to which an operator of the hosting website can have recourse. However, in circumstances where the poster is anonymous, seeking to rely on the Regulations (if enacted as currently drafted) in order to qualify for the defence under section 5 of the 2013 Act may lead to the operator risking the loss of other defences, cause delay in the eventual removal of the offending statement from the website while regulatory time frames are complied with and lead to a further possible court order for the details of a resistant poster.
Given these potential difficulties, there must be some doubt whether an operator will go through the hoops required by the Regulations rather than simply removing potentially defamatory material once a formal Notice of Complaint has been received.