UK Defamation Act 2013 – Rules for Website Owners

The amendments to the Defamation Act passed in the UK earlier this year will come into force on January 1, 2014. There is a draft regulation on website owners’ liability for defamatory comments posted on their sites. There is quite a back-and-forth process.

Is a scheme like this a good idea for Canada? It is a kind of ‘notice and notice’ system, in which the original poster of the allegedly defamatory statements have to identify themselves (via the website operator) for litigation by the complainant, or the statements are deleted.

Here is Pinsent Mason’s description:

[Website operators have to notify posters of a complaint of defamation.] Upon notification, authors of the comments would have five days to issue a written response outlining whether they consent to the removal of the comments from the site. A failure to respond would place website operators under the obligation to delete the comments within 48 hours of that five day deadline expiring if they are to avoid exposure to liability.

When notifying authors that their comments are subject to defamation complaints, website operators would have to conceal the identity of the complainant from those authors if such anonymisation is sought by the complainants.

In cases where the authors do not consent to the removal of their comments, those individuals or businesses would be required to inform website operators of their name and address and tell the operator whether or not they consent to the handing over their details to the complainant. A complainant would have to be informed by the operator within 48 hours of an author’s response and of the content of that response.

Website operators would be required to delete comments from their site within two days of receiving a notice of complaint if it has “no means of contacting the poster” through a “private electronic communication” channel, such as via email.

If authors that do respond to website operators’ notifications of a complaint fail to provide details of their full name and address, the operators would have to remove their comments within two days of that response. If a “reasonable website operator” believes that details given by an author are “obviously false” then they must also delete the comments within the 48 hour deadline.

In cases where authors of defamatory comments repost the same or substantially similar comments after they have been removed twice before from the site, website operators would be obliged to remove the comments within 48 hours of receiving a notice of complaint.

Views? Too complicated, or a good balance?

Does it make sense that someone complaining of defamation can keep his/her/its identity secret from the person who posted the allege defamation, for the purpose of this scheme?

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Comments

  1. David Collier-Brown

    I’d characterize it as a “notice and takedown” system, like the U.S. DMCA, except applied to defamation, rather than a notice and notice system applied to copyright, such as we have.

    I understand the UK is extremely sensitive to defamation, and it certainly shows here!

    It seems to assume that any complaint of defamation is valid on its face, and that no-one had a right to make an anonymous comment if anyone could consider it defamatory.

    In addition, it appears to say that if *I* were to consider a comment about Mr. Mike Duffy defamatory, I can get it taken down!

    Really quite amazing!

    –dave

  2. On the other hand, the changes in the rules about defamation itself seriously reduce the availability of the action. A business suing for defamation has to show serious financial harm in order to win, while under current law (and Canadian common law), damage is presumed from any communication that is capable of bringing the plaintiff into disrepute. The amendments also codify the judge-made rule in Reynolds (which was the origin of the Canadian rule in Torstar) that create a public interest journalism defence.

    I suppose the proposed regulation is better for the defendant website than the current rule about ‘innocent dissemintators’, which requires only a single notice to make the disseminator liable if the publication is not withdrawn. At least the regulation gives the website a chance to move the dispute to the person actually doing the (allleged) defaming.

  3. “Does it make sense that someone complaining of defamation can keep his/her/its identity secret from the person who posted the allege defamation, for the purpose of this scheme?”

    No, it makes no sense at all. This scheme (which applies only to anonymous posts, by the way – website operators will now have complete defamation immunity for identifiable 3rd party posts) is supposed to enable the poster to decide how to respond to the complaint. If it’s obvious from the post who has been putatively defamed, then there is no point in withholding the identity. If it’s not obvious, then the poster should be told the identity so as to be able to evaluate the defamation claim.

    Further comment here. (This was on the draft Regulations, but the final version has not materially changed.)

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