The Government has recently announced that the Defamation Act 2013 will come into force in England and Wales on January 1st 2014. Section 5 of the Act addresses a couple of problems that have particularly affected Janet customers who operate websites.
First, the concern that moderating postings from third parties might give rise to liability if the moderator failed to spot a problem has been reduced. Section 5(12) says that defences to defamation claims aren’t lost merely because you moderate. Unfortunately that doesn’t affect other claims, for example of copyright infringement, where the position under UK and EU law remains unclear.
The general aim of section 5 is that legal action for defamation should normally be between the person claiming to have been defamed and the author of the comment to which they object. Thus if the author can be identified sufficiently to bring legal proceedings against them, section 5(2) ensures that the operator of a website can’t be sued for something written by a third party author.
Otherwise a website operator still has the options provided by existing law: to remove any third party content that is the subject of a defamation complaint, or to leave content up in the belief that it isn’t unlawful. In the latter case, of course, they may be held liable if a court subsequently disagrees.
However section 5 also creates possible a new course of action for website operators who would prefer to have a court decide whether an article is unlawful defamation or legitimate free speech. This is likely to be of particular interest to universities and colleges who have a legal duty to protect free speech by their members and guests. It does, however, require a specific series of actions on a relatively tight timescale so organisations that wish to use it need to prepare.
Details of the required process are contained in the Defamation (Operators of Websites) Regulations 2013. The following is a summary of how it should work in the situation where the author wishes the article to remain on the website:
- Website operator receives complaint: must acknowledge the complaint and forward it to the author of the article;
- Author responds, providing contact details and asking for article to remain on the site;
- Website operator notifies the complainant that author wishes the article to remain and has provided contact details that are not obviously false; if the author does not wish their contact details to be released to the complainant the site must not do so.
At each stage the operator must act within two working days, the author must act within five calendar days.
Once these stages are complete it is up to the complainant whether they wish to sue the author (if they agreed that their details could be released), ask a court to order removal of the material (under s.13 of the new Act), or ask a court to order the website operator to disclose the contact details (under the existing Norwich Pharmacal process). This makes it the job of the court, not the website, to balance the complainant’s right to reputation against the author’s rights to privacy and free speech.
If, at any stage, the author does not follow the procedure then the site needs to remove the article and inform the complainant to keep this defence; if the website operator does not (or cannot, e.g. if they cannot contact the author) follow the procedure then this defence is lost and the operator will need to inform the complainant and switch to one of the existing options. To prevent articles being simply removed and republished, the Section 5 process can only be repeated twice for any given article: the third time, the article is simply removed on complaint without contacting the author.
While this process is undoubtedly more complex than the existing notice-and-takedown approach, for those articles where the balance between free speech and defamation is unclear it allows universities and colleges to have their legal position clarified by a court without risking liability.