Part 3 of our blog looks in more detail at the new procedure for complaints about defamatory material on websites:
Section 5 of the Defamation Act 2013, was heralded as a great new way of dealing with the problem of anonymous or pseudonymous posts online. It provides a procedure which, if followed by the operator of a website, creates a complete defence to a claim for defamation. But there have always been other defences available, such as s.1 Defamation Act 1996 and Regulation 19 of the E-Commerce Regulations 2002 and these remain in place, so what does s.5 bring to the table?
The answer, unfortunately, is probably not very much for most organisations. Firstly, the procedure isn’t simple (although we’ve tried to simplify it in the flowchart below and it’s likely that if you operate a website on which people post comments you might decide to carry on dealing with complaints as you were before. Secondly, it’s likely that the decision to use the procedure would mean that staff have to be trained (or re-trained) and more money spent.
That said, there are some plus points. As we said in part 2, where the person who posted the statement can be identified well enough for court action to be started against them the website operator has a defence automatically – the complainant has to sue the poster. The procedure also provides for a series of time periods within which certain steps can be taken – see here. In practice what this means is that website operators who want to keep the possibility of a defence but which also value the importance of freedom of expression can be seen to be doing something other than just rolling over straightaway to the demands of the complainant.
Commercial Dispute Resolution Department
0113 2279 318