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Section 5 of the Defamation Act 2013: in brief by Ashley Hurst and Emma Cross of Olswang
With the Defamation Act 2013 (‘Act’) now in force, website operators need to think very carefully about whether to adopt it as part of their complaints procedures.
Section 5 of the Act provides that where an action for defamation is bought against operators in respect of a statement posted on the website, the operator is automatically granted a complete defence if the poster of the statements can be identified and served with legal proceedings. There is no doubt that this is an extremely useful defence for website operators in these circumstances. The position becomes more complex however in circumstances involving anonymous posters, which is very often the case in relation to damaging internet postings. In such scenarios, the operators’ only means to keep publishing the disputed content is if they follow the procedure set out in the Defamation (Operators of Websites) Regulations 2013 (‘Regulations’) and:
The Section 5 procedure
Olswang has produced a flow chart to help deconstruct the complexities of the Regulations. This can be read in conjunction with the Ministry of Justice’s guidance and frequently asked questions. In brief, the complainant’s notice to operators must comply with both section 5(6) of the Act and Regulation 2 of the Regulations and contain:
These requirements do not set a legal threshold. The complainant need not be correct either in law or in fact, for example in identifying words as facts rather than comments; he simply needs to tick the boxes. Where the complainant is a company, it will also need to explain why the material complained of has caused or is likely to cause serious financial loss. This is mentioned at paragraph 11 of the guidance and is implicit in the refinement of the definition of ‘defamatory’ provided by Section 1 of the Act. An operator then has 48 hours to acknowledge receipt of the complaint and either:
This ultimately demonstrates the defence’s limits. Why would the anonymous poster (who presumably wants to remain unidentified) suddenly identify themselves when they have no incentive and much to be lost by doing so? In our view, this procedure is likely to do very little in most cases of anonymous content other than delay take-down by approximately two weeks. Operators who elect to use this defence will need to look carefully at their online complaints procedure, provide training to those responsible for dealing with complaints and perhaps develop some software to monitor the numerous deadlines included in the procedure.
Ashley Hurst, Partner, and Emma Cross, Trainee Solicitor, at Olswang LLP