Site operator defence for defamatory user posts – is it workable?

Background

People who are defamed by blogs, tweets or other material hosted on online platforms seek swift redress, usually asking that the material be taken down as quickly as possible in case the damage done will increase.

The new defence resulted from quite vocal concerns raised by internet companies and others about the scale of the problem of policing the vast amounts of information that they host – information that increases all the time. They are unlikely to be satisfied with what has been achieved, as there is still a burden on them to react to complaints, and in some circumstances they can be held liable for information published on their platforms by third parties.

The procedure for notification, and for responding to notification, will be governed by regulations, which are currently in draft form [since this article was written The Defamation (Operators of Websites) Regulations 2013 have come into force]. So this part of the Act cannot come into force without the regulations, and the effectiveness of the defence will be determined by the detail in the regulations and how (and how quickly) site operators have to react to a complaint. They could choose to ignore the new legal requirements, but it is unlikely that mainstream site operators will do so, and it would be unwise, because they could ultimately be held liable for publication.

Conditions for relying on the defence

The defence will be defeated if the claimant shows that:

1. it was not possible to identify the user who posted the statement;
2. the claimant gave the operator a notice of complaint in relation to the statement; and
3. the operator failed to respond to the notice as required by the regulations.

So a site operator can rely on the defence, as long as, on receiving a properly formulated notice of complaint, it does what is required of it by the regulations and provides the claimant with sufficient information to identify the user properly. Besides, the defence is not defeated by reason only of the fact that the site operator moderates its users’ posts.

Identifying the user

A user can only be “identified” for these purposes if the claimant has sufficient information to bring proceedings against the user.  This will no doubt prove problematic and could well force site operators to take down posts frequently because sufficient identification is impossible.

In most situations, however (at least until the law is settled), a site operator is unlikely to pass the user’s information to the claimant without first informing the user about the complaint and receiving consent to disclose it – even if consent is somehow made implicit, say, after a specified period of time within which the user must object if wishing to do so.  If the user refuses, the operator is likely to require the claimant to get a court order before it hands over the information in its possession.  The operator might need to indicate to a claimant whether it has sufficient identifying information, to save unnecessary visits to court.  In any event, a court order should not take very long to obtain.  We may see changes to operators’ terms and conditions in order to allow them to disclose information within a specified period of time in the absence of a response from a user.

If the details are insufficient to contact a user (and often operators do not have all the details, or the correct details, or they may only have IP addresses), the operator will probably be required under the regulations to remove the defamatory material from the website.  This will be an effective remedy and will result in the disposal of many complaints relatively quickly, particularly if there is a short response time for the operators.

Removal of defamatory posts

If the user is content for his or her identity to be provided to the claimant by the site operator (or the user is otherwise identifiable for the purposes of the defence), it appears that the defamatory material could then remain on the site while the claim against the user proceeds – unless the operator volunteers to remove it or the user agrees to remove it, which the user is less likely to do if defending the claim.

In this context, the more unreasonable the user is (which will not be an infrequent occurrence), the more a claimant will be held to ransom.  This is because the site operator could leave the defamatory material online without any risk to itself during the course of the litigation (unless doing so maliciously, as considered further below), while a lone blogger or tweeter defends the claim (presumably as a litigant in person).  Many of these defendants will be impecunious, so recovery of legal costs may be difficult.

Equally, whether effective vindication will be available to claimants at the end of this process remains to be seen.  Apart from removal of the offending post (which is often extremely important), will the user have to publish an apology, and if so, will such an apology be useful vindication in the eyes of the public?

For claimants therefore, the key seems to be the ability to secure the removal of the material as quickly as possible.  Importantly, this may be easier to achieve when users have tried to disguise their identity rather than being open about it, because the operator will probably not be able to provide the claimant with sufficient identifying details.

Speed of action

When identification is possible, and if the user wishes to defend the claim (with all the risks in costs that this may entail), there will need to be a quick and effective process for defamation claims of this sort.  So, in order for the system to work well, a streamlined process will need to be developed, so that litigation takes much less time to conduct and costs can be kept at a reasonable level.

Operators will want to have a significant amount of time within which to react to a notice of complaint. Claimants will, unsurprisingly, need action taken as swiftly as possible, as the defamatory allegations will be causing them damage.  This could prove a contentious aspect of the draft regulations, unless a suitable balance can be struck.

Further, operators should be aware that the entire defence is defeated by malice on the part of the operation in relation to the posting.  While difficult to prove, this may nevertheless increase in concern to an operator the longer it takes them to deal with a valid notice of complaint and the more difficult it is to deal with the user.

Alternative causes of action

Of course, the Defamation Act is simply one of several tools that claimant practitioners will be using when dealing with site operators.  On many occasions, when making a complaint, claimants will invoke the website’s terms and conditions, because a user’s behaviour may fall foul of what the operator expects of its users.  Already, this can sometimes be the quickest way for claimants to achieve results.  There may also be an element of copyright infringement involved, in which case a take-down notice should be effective.

Further, if the site operator happens to be a media organisation publishing in the UK, it is likely to have signed up to any additional regulatory requirements and codes of practice that are brought in as a result of the Leveson Royal Charter.  In other words, a post will not necessarily have to be defamatory before redress is possible, as corrections may need to be made for other reasons too.

Importantly, under section 13 of the Act, there are new powers enabling the court, if giving judgment in favour of a claimant, to order the removal of defamatory statements from third-party websites that host them.  This should prove an extremely useful tool for claimants when trying to clean up false and damaging material when a complaint has been successful.

Comment

As with most new legislation, the devil is in the detail.  Whether the new regime is useful to anyone will largely come down to whether the regulations are workable in the real world.  Claimants need swift redress, but site operators need sufficient time to deal with issues arising, given the number of complaints that they may have to deal with and their concerns about hindering their users’ freedom of expression.

Whether these competing rights can ever be resolved to everyone’s total satisfaction seems unlikely.  At least there is now an up-to-date framework for dealing with defamatory user posts, and a useful ability to adapt the regulations as and when they need to be.

Article written for Entertainment Law Review.