As matters currently stand, we have a situation where operators often choose not to moderate material on their web sites at all, so that they can avoid actual knowledge of the content (which could make them liable as a publisher), but then quickly remove it if they receive any complaint from an aggrieved party, whatever the merits.
So online abuse that should never have seen the light of day is often posted with impunity while legitimate debate can be stifled at birth. Hardly a satisfactory state of affairs.
The Defamation Act 2013, which is due to come into force on 1 January 2014, includes new protection for website operators that tries to address this very issue.
Section 5 of the Act provides that, where an action for defamation is brought against the operator of a website in respect of a statement posted on that site, it will be a defence for the operator to show that it was not the operator who posted the statement.
However, the defence will be defeated if the claimant can show that:
- it was not possible for the claimant to identify the person who posted the statement;
- the claimant gave the operator a notice of complaint in relation to the statement; and
- the operator failed to respond to the notice of complaint in accordance with rules set out in The Defamation (Operators of Websites) Regulations 2013.
That response should stipulate whether the poster agrees to the removal of the material in question, and if he does not, whether or not he consents to his name and postal address being disclosed to the complainant.
If the poster objects to the material being removed, but consents to his details being forwarded to the complainant, then the operator must do so.
If the poster objects to the material being removed, but does not consent to his details being forwarded to the complainant, then, if the complainant wants to take action against the poster, he will have to obtain a Court Order against the website operator requiring them to disclose the details.
If the operator has no means of contacting the poster, if the poster does not provide the response in the required format, or if the poster consents to the removal of the material, then the operator must remove the material.
For persistent complaints relating to material that has been removed and subsequently reposted, then the operator will have to remove the material without waiting for the poster’s response.
Remember that the website operator only has to comply with the above procedure where the complainant is unable to identify the poster for the purposes of taking legal action against them.
If the poster can be identified, then the website operator does not need to remove material in response to a complaint and can rely on the new defence, at least as far as a libel claim is concerned.
Strictly speaking it is not necessary to know someone’s name or address to take legal action against them as it is possible to obtain so-called “John Doe” orders against person or persons unknown: however, it seems likely that where a poster only uses a pseudonym, or where he uses a common name such as Smith or Jones without any other information that might help identify them, the condition will be satisfied and it will be advisable for website operators to comply with the Regulations in order to avail themselves of the defence.
There is a risk that these new laws may lead to a proliferation of trolling, permitting website operators to continue to publish some offensive or abusive material even when on notice, and leaving aggrieved complainants with no remedy other than a potentially expensive libel action against a poster who, while he may be identifiable, may also live outside the UK and be beyond the reach of its Courts.
However, this would appear to be the price to be paid for a policy of emboldening website operators to safeguard more responsible freedom of speech elsewhere on the internet.