Website operators will shortly have a defence to claims of defamation arising from statements posted by others on their sites provided they can show that they did not themselves post the statement. The draft Defamation (Operators of Websites) Regulations 2013 set out the steps which website operators must follow, within specified timeframes, in order to be able to rely on this defence. It expands on the details of the defence in section 5 of the new Defamation Act 2013, (which received Royal Assent in April but has not yet come into force).
If a complainant can identify the poster of the statement it should pursue that person directly. If not, the operator will have to follow a number of steps in order to rely on the defence and avoid liability. In summary:
Upon receipt of a complaint notice, within 48 hours the operator must:
- remove of the offending material from the website if they have no way of contacting the poster by electronic means
or
- inform the poster of the complaint and warn them that it will be removed if no objection is raised.
If the poster is informed of the complaint, they have five days in which to confirm:
- whether they object to the removal of the material
- their name and address
- whether these can be passed on to the complainant.
If they fail to do so then the operator must remove the material.
If the poster does provide a response within five days, confirming that they object to the removal of the material, the operator must inform the complainant of this fact within 48 hours and the statement will remain on the site.
The operator must also:
- give the complainant the poster's details (if authorised to by the poster)
or
- tell the complainant that the poster has refused to have their details released. In this situation it will be for the complainant to seek a Court Order requiring the operator to release the poster's contact details.
Provided the operator complies with the above steps, no liability will attach to them for any defamatory statements contained in the material on the site. It should be noted that the time limits specified do not include weekends or bank holidays.
The process is not likely to be straightforward and could take some time to conclude meaning by the time the procedure is complete; the damage may already be done. The draft Regulations therefore set out an expedited procedure where offending material can be removed by the operator immediately upon receipt of a complaint, where the poster has re-posted the same, or substantially the same material, that has already been removed from the site under the procedure set out in the draft Regulations on more than one occasion. What constitutes 'substantially the same material' will of course be a matter of subjective opinion.
The author, Hannah Braye, is a member of Burges Salmon's Intellectual Property disputes team led by Jeremy Dickerson. Richard Binns also advises on Defamation and Reputation Management issues.