The Government has published the draft Defamation (Operators of Websites) Regulations, which set out the basis on which website operators can avoid liability for defamatory material posted on their sites by third parties. Under the Defamation Act 2013, a website operator has a defence to defamatory material posted on their site if they were not the poster, but the defence does not work if: it was not possible for the offended user to identify the poster, the user gave the operator proper notice of their complaint and the operator did not respond in accordance with Regulations. These Regulations have now been published. So what do they say and would be their effect if they come into force in their current form?
The complainant must first of all include their contact email address in their complaint, the meaning that is offensive, the aspects that are untrue or inaccurate, why the complainant does not have enough information to identify the poster and whether they are happy for their name and email address to be given to the poster. If the complainant’s notice is defective, the operator’s defence to defamation would fail if they do not notify the complainant within two working days why the notice was defective. Assuming the complainant’s notice was not defective, the following procedure happens:
- Within two working days, the operator must remove the statement if it has no way of contacting the poster electronically.
- If the operator can contact the poster, it must send a copy of the complainant’s notice (with contact details redacted unless the complainant consents to them being passed on) and a warning of removal unless the poster responds within five working days informing that the poster does not want removal and giving the poster’s full name, postal address and confirmation of whether those details can be passed to the complainant.
- Either way, in that initial two working day period, it must inform the complainant in writing of what it has done.
- If within five working days there is no response or an inadequate response or the poster agrees to the take down, the operator must remove the material.
- However, if within five working days the poster objects to the take down and gives their name and address, the material can remain on the site.
- Again, the operator must keep the claimant updated.
- There is a short-circuit this process if material is re-posted that conveys substantially the same imputation as previous statements.
This process is long-winded and does not serve a useful purpose. If you are defamed, you may have to wait nearly two weeks as your reputation is damaged without being able to do anything about it. By that time, the damage could have been done. If you are a website operator, it’s very complicated and could add to cost, and must also watch the clock carefully to avoid falling foul of the defence requirements. Some website operators may prefer an easier option and just remove the offending posts – assuming their website terms and conditions have been carefully drafted and allow them to do that.