What if I just want to take down the posts?
UK defamation law was revised and updated with effect from 1 January 2014. One of the general aims was to create a higher barrier for claims – requiring claimants to show that a statement caused or was likely to cause “serious harm” to their reputation. For operators of media based on user-generated content, there is a general provision that a claim should not be brought against someone who was not the author, editor or publisher of a statement, unless it is not reasonably practicable to bring proceedings against the actual author, editor or publisher (particularly if it has received notice of the complaint).
The 1996 Defamation Act also remains in place which also provides a defence where you can show that you were not the author, editor or publisher of the statement, you took reasonable care in publication and did not know or reasonably believe that you were causing or contributing to the publication of a defamatory statement.
In a similar way to the e-commerce regulations, an operator of an electronic distribution or communications system is not considered the author, editor or publisher of the statement.
So taking down a post upon receiving a complaint about it would seem the safest course (though clearly operators will need to decide where they draw the line between caution and freedom of speech).
What if I don’t want to take down posts?
A specific defence was introduced for “website operators” in relation to defamatory statements posted by users that it was not the operator that posted the statement. The mere fact that the operator moderates third party comments does in itself not prevent the defence from applying.
However, this defence will not apply where:
- the claimant is not able to identify the maker of the statement (sufficiently to bring a case against them – so an address for service would be needed); and
- the operator doesn’t respond correctly to a notice in proper form received from the claimant; or
- the operator “acted with malice” in relation to the posting.
So where posts are not anonymous the defence is straightforward (and a very useful addition) and the website operator essentially need do nothing. Where posts are not anonymous (or insufficient contact information is provided) – which is of course more likely to be the case with problem postings – the notice process is likely to be relevant.
Without entering into the fine detail of the new process (it is not simple and the UK Ministry of Justice has issued good, but still not easily digestible, guidance and FAQs), the general outline is as follows.
The contents of the complaint notices are quite specific and would need to be followed strictly by the complainant (including identifying the offending statement, stating where it was posted, what meaning the complainant gives the statement and why it is inaccurate). Once received, then the website operator has 48 hours to react by:
- rejecting the notice as incomplete or defective (in which case the posting may continue to be published – but this may mean that the other defences referred to above may need to be considered);
- if the operator has no means of contacting the poster, removing the statement complained of; or
- sending (deleting the complainant’s name and address if not authorised for disclosure) the notice to the poster, explaining that the statement will be removed unless the poster within an additional 5 days responds with his or her name and address and consent to them being passed to the complainant (in which case the statement can be left published and the proceedings should be addressed between the poster and the complainant – but the fact that this depends on the poster voluntarily putting him or herself in the firing line suggests that this may be the exception).
This is all fairly technical and the deadlines are short. There are likely to be risks and costs involved which not all website operators will be willing to assume and the course of least resistance may be to remove posts as a matter of course rather than entering into an assessment of the merits of the complaint. Of course, if as a website operator, you are so committed to freedom of speech and defence of your posters that this is part of your business and practices and you will probably already have good advisers and dealt with all or some of the issues set out in this Article.
So what do website operators need to do?
We think it is worth considering which camp you and your service fall into:
- so passionately for free speech and internet freedom that you would generally resist complaints and are willing to dedicate a budget and management time to doing so; or
- just an intermediary where sometimes complaints may arise and which should be addressed between posters and complainants, and not something you should need to get involved in.