Section 5 of the Defamation Act 2013 provides (or will do when the Act comes into force) a complete defence from a defamation claim for a website operator who can show that it did not post the statement on the website. This is a significant new protection for website operators.
However the defence is significantly watered down for anonymous posts. It is defeated if the claimant can show:
1. That it was not possible for the claimant to identify the person who posted the statement
2. The claimant gave the website operator a notice of complaint containing various specified information; and
3. The website operator failed to respond to the notice of complaint in accordance with regulations to be made under secondary legislation.
A recurrent complaint during the passage of the Bill through Parliament was that Parliamentarians were unable to assess properly the Section 5 defence because the regulations were not available in draft for Parliament to consider.
In June 2012 the government circulated a note to the Commons Bill Committee indicating its then thinking about the regulations. Since then two rounds of consultation on draft regulations and guidance documents have taken place with a limited group of stakeholders. (Hat-tip to Ashley Hurst, who has documented both phases of the consultation.)
Since the government will at some point lay draft regulations before Parliament, this is a good point at which to review the currently circulating draft regulations (which may yet change) and take a stab at predicting their practical consequences.
The effect of Section 5 for an anonymous post is that the website operator may still have a complete defence under Section 5, but only if it successfully negotiates the procedural hoops set out in the regulations. The end point in some scenarios will require the website operator to remove the posting if it is to be able to rely on the defence.
Although the regulations are littered with references to what a website operator ‘must’ do, they do not in fact oblige a website operator to do anything. They only set out the conditions that a website operator has to satisfy in order to be able to make use of the Section 5 defence for an anonymous post.
The Section 5 defence is additional to existing defences under S1 Defamation Act 1996 and the ECommerce Directive. They are unaffected by the new Act and regulations.
Defamatory or unlawful?
The draft regulations are a mixed bag. On the good side, the government has kept to its promise in Parliamentary debates on the Bill that complainants would have to do more in their notice of complaint than merely assert that the posted statement was defamatory. The complainant will have to set out the meaning which the complainant attributes to the statement and also set out the aspects of the statement which the complainant believes are factually inaccurate or opinions not supported by fact.
This goes some way to meeting the recommendation of the Parliamentary Joint Committee on Human Rights that the threshold for a complaint under Section 5 should, as under the ECommerce Directive hosting defence, be unlawfulness.
This issue reflects the fact that a statement may be defamatory without being unlawful. A statement is defamatory if it is damaging to someone’s reputation. However if any one of numerous defences, such as truth, honest opinion, publication on matters of public interest and many others, is established, the statement is lawful.
So a complaint that something is defamatory only addresses half the story and may encourage the taking down of lawful statements, with consequent chilling effects. Requiring a complainant to consider possible defences of truth and honest opinion goes some way to ameliorating this.
Action by the poster – a black hole in the regulations
On the debit side the regulations are, perhaps inevitably, a veritable maze of different scenarios requiring different responses from the website operator. The draft guidance note identifies no less than five different situations that can arise depending on the anonymous poster’s response (or lack of response) to a complaint forwarded by the website operator.
However other scenarios are possible, which the regulations do not address. Like a poorly designed IT system, the regulations tend to assume conforming behaviour by all the participants and make insufficient provision for exception handling, especially non-conformant behaviour by the poster whose statement is complained about. In particular the regulations assume that any removal of the offending statement will be done by the website operator, not by the anonymous poster.
One illustration is in the draft FAQ for website operators: “What should I do if I receive a Notice of Complaint and the posting has already been removed?” The given answer is “It is unlikely that a complainant will send a Notice of Complaint in a situation where the posting has already been removed. If such a situation does arise it will be necessary to follow the process in order to benefit from the section 5 defence.”
Yet the first step in the prescribed process involves the operator notifying the poster that the statement complained of may be removed from the locations on the website specified in the notice of complaint. Since in this scenario the statement has already been removed, the notification is meaningless. Later steps in the process may require the operator to remove the statement from those locations – in this scenario, impossible to comply with.
In a similar vein, there is a gap in the scenarios contemplated by the regulations for the response by the poster to the complaint notice forwarded by the website operator. The five possibilities listed in the guidance notes are:
- Poster fails to reply to website operator within the time limit
- Poster replies within the time limit indicating that he or she wishes the statement complained of to be removed
- Poster replies within the time limit but fails to provide the required information
- Poster replies within the time limit indicating that he or she does not wish the statement complained of to be removed, and consenting to the operator sending his or her contact details to the complainant
- Poster replies within the time limit indicating that he or she does not wish the statement complained of to be removed, provides contact details to the operator but refuses to consent to the operator sending them to the complainant
A sixth, and perhaps most realistic, response from a poster concerned about the complaint is for the poster to take the initiative on receiving notification from the website operator and remove the offending post (as happened in Tamiz v Google) or edit it. Again the regulations make no provision for this. As with the FAQ example above, for scenarios that culminate with an obligation on the operator to remove the statement, where the poster has already taken action that requirement would be impossible to comply with and the operator would apparently forfeit the Section 5 defence. That is surely an absurd result.
Time limits and time zones
Some critical steps depend on the website operator having received a response from a poster ‘by midnight at the end of the date specified in the notification [from the website operator to the poster]’. Since neither the website operator nor the poster, nor indeed the complainant, are necessarily based in the UK and may well be in other time zones, there is significant potential for confusion over time limits.
The draft regulations make some concession to the rigidity of time limits in that the court is permitted in its discretion to treat action taken by the website operator as having been taken before expiry of the time limit. However there appears to be no flexibility in relation to the 5 day time limit for the poster’s response. The FAQ for posters makes this point starkly:
“Q. What happens if I’m on holiday and don’t realise the Notice of Complaint has been sent to me?
A. The time period given for a response will still apply, and if you do not respond within that period the operator may remove the posting which has been complained about.”
Withholding complainant identity
The complainant is given the option not to consent to the website operator passing on the complainant’s name and contact details to the anonymous poster.
While one can understand the rationale for allowing contact details to be withheld, to permit the complainant’s name to be withheld is very odd. These regulations are about defamation, which concerns damage to someone’s reputation. If the statement does not refer to an identifiable person, it is not defamatory. So either it will be obvious from the statement complained of who has been putatively defamed (in which case it would be pointless for the complainant’s name to be withheld) or, if it is not obvious, then the poster will need to know who is complaining in order to assess whether the statement is defamatory.
For litigation the Defamation Pre-Action Protocol requires a letter of claim to include (a) the name of the claimant and (b) where relevant, any facts or matters which make the claimant identifiable from the words complained of.
Predictions about the practical effect of the anonymous posting aspects of Section 5 are not easy to make.
Because of the enormous difference between protection for website operators (and only for website operators) in respect of anonymous and non-anonymous posts, there will be intense focus in future litigation on (a) what is and is not a website operator and (b) whether the post was anonymous – i.e. whether it was possible for the claimant to identify the person who posted the statement (defined in Section 5 as “only if the claimant has sufficient information to bring proceedings against the person”).
The procedure under the draft regulations is so bureaucratic – not easily recognisable as the “quick, clear and practical” process promised in Commons Committee in June 2012 – that it is possible that website operators will ignore it and rely on other available defences.
Even then, however, Section 5 may have a side effect. A valid complainant’s notice is much more likely than an informal defamation complaint to fix a hosting intermediary with knowledge of unlawfulness for the purpose of the ECommerce Directive defence. So even if the Section 5 procedure is ignored, a website operator may have more incentive than previously to take a down an anonymous post on receipt of a valid Section 5 notice.
The new intermediary defence under Section 10 will also be significant, whereby 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.
Many intermediaries will not be an author, editor or publisher (under the special definitions in section 1 of the Defamation Act 1996). For a website operator in relation to an anonymous post, there may be a question whether the claimant should have to attempt a Norwich Pharmacal application to determine identity in order to escape the prohibition in this section. It is interesting to speculate on whether a website operator’s decision not to respond to a notice under Clause 5 would be held against it in the court’s evaluation of reasonable practicability.
This post originally appeared on the Cyberleagle blog and is reproduced with permission and thanks