The passing of the Defamation Act 2013 this week removes a couple of areas of legal uncertainty if you run a website, blog, etc. and someone else posts an article or comment that may be defamatory. First, provided you aren’t acting maliciously, you don’t risk liability merely by moderating what is posted. Second, the Act tries to ensure that defamation claims are settled either between the author and the person allegedly defamed, or by the courts. Only if both of those approaches are impossible should the website operator have to make the legal assessment whether a post is, or is not, defamatory.
To benefit from the new law’s protection website operators will either have to insist that all contributors publish their names and contact details, or else follow a process that the law will define to allow the complainant to take action against the author. That hasn’t been published or debated yet but, as I mentioned at Networkshop, discussion in Parliament of an earlier draft seemed to indicate that although it would require some record-keeping, it shouldn’t be unreasonably onerous.
The law doesn’t affect the existing defences for website operators, so you can still decide to simply remove anything that is the subject of a complaint. But for universities and colleges, who have a legal duty to promote free speech by their members and guests, the new process, which should offer legal certainty, may be more attractive.
This new UK law only applies to defamation, not to other wrongs that authors may commit, and at the moment it’s not clear whether it will apply in Scotland and Northern Ireland. However the European Commission consulted last year on a general “notice and action” policy to address the same concerns about the position of website operators, so there should be something that applies more widely in the pipeline.
