Defamation Act 2013 Update: Website Operators

As at end August 2013 there is still no date for the coming into force of the Defamation Act 2013 ("the Act").

However, the Ministry of Justice has now (late August 2013) produced the draft Regulations under section 5 ("Operators of Websites")

The draft Regulations beg the question:

Is section 5 a convoluted white elephant?

To recap:

Section 5 of the Act provides a defence for the operator of a website where a defamation action is brought in respect of a statement posted on that website if it was not the operator who posted the statement.

The defence sounds like a useful back-up to other defences currently available to website operators and to section 10 of the Act itself (see below).

Note that under section 5(12), moderation by the operator of the website of comments posted on it by others, does not invalidate the defence.

However, the section 5 defence is only straightforward in the case of posts on the website from which the complainant can identify the poster, (in other words where the complainant "has sufficient information to bring proceedings" against the poster - section 5(4)).

Of course, in the real world, the majority of problematic posts are likely to be anonymous. And in those situations, the section 5 defence is much more complicated for website operators.

The website operator will not be able to rely on section 5 if the complainant can show that:

it was not possible for the claimant to identify the person posting the statement; and the claimant gave the operator a notice of complaint in relation to that statement; And the operator did not respond to the notice of complaint in accordance with the new Regulations. It is the latter Regulations which have now been published in draft.

The Draft Regulations

A copy of the draft Regulations can be found here.

Health warning: they are a tortuous read. The following is a summary of the main points.

Broadly-speaking:

The complainant's duties are contained in draft Regulation 2 governing the content of the Notice of Complaint.

The Notice must do more than just allege that a post is 'defamatory'. This is because a defamatory post may be completely lawful, if it is protected by one of the defamation defences e.g. it is true, or an expression of honest opinion. The Regulations seek to prevent lawful posts being suppressed.

Hence, in the Notice, as well as setting out the statement concerned and explaining why it is defamatory of the complainant, and specifying where on the website it was posted, the complainant must:

set out the meaning the complainant says the statement bears set out the aspects of the statement which the complainant "believes" are factually inaccurate, or opinions unsupported by fact. There is a list of other requirements for a valid Notice: e.g. it must confirm that the complainant does not have...