Under current defamation law, if a website wants to avoid all risk of liability for material posted by third parties then its best approach is to not moderate postings when they are made, and remove them promptly when any complaint is made. As I’ve pointed out in various responses to consultations (and as now seems to be recognised by law-makers both in Westminster and Brussels) that’s not ideal either for removing obviously harmful material, or for protecting contentious but lawful comment.
The Defamation Bill that is currently being debated in Parliament seems to offer a number of new approaches that a website could adopt, while still being protected from liability. Note that the Bill isn’t yet law, may change before it is, and will only apply to defamatory statements, so don’t rely on these just yet!
- Only accept posts from “individuals who can be identified” (the Government has been asked for more clarity on what this means). Clauses 5(2) and 5(3)(a) of the Bill then mean you are protected from liability even if you do moderate postings;
- Allow anonymous posts and moderate them, but follow a process that will be specified in legislation (unfortunately for debate, no draft has yet been published) when you receive a complaint. Clauses 5(2) and 5(3)(c) then protect you from liability;
- Allow anonymous posts, don’t moderate, and follow the prescribed procedure in response to complaints;
- Use some other mechanism to ensure that it’s “reasonably practical” for the complainant to take legal action against the author of the posting, while ensuring that you don’t qualify as either editor or publisher. Clause 10 only permits suing someone who *isn’t* the author, editor or publisher if it’s not reasonably practical to sue one or more of those;
- Allow anonymous posts, don’t moderate, and remove promptly when a complaint is received (the existing process under the Defamation Act 1996 and e-Commerce Directive).
As far as I can see, you need to choose one of these approaches and stick to it: you can’t, for example, accept anonymous posts, moderate them, and then remove in response to complaint (switching from (2) to (5) when you receive a complaint).
Other behaviours will, of course, remain possible; for example moderating material and only publishing posts that you believe are lawful, or deciding that material that’s the subject of a complaint is actually lawful. However in those cases you’re relying on your interpretation of the law matching that of the judge should the case ever come to trial.
