Defamation Act 2013

Defamation Bill introduced by Kenneth Clarke MP for the Ministry of Justice 2012-05-10.

• Bill tracking

Status: Bill has received Royal Assent. and came into effect 2014-01-01 (this page may need some updates to reflect the current status)

• Defamation Act 2013 - legislation.gov.uk
• The Defamation (Operators of Websites) Regulations 2013 - legislation.gov.uk

Section 5

Section 5 of the act relates to operators of websites, allowing a defence that website owners have for comments posted by third parties (user generated content), but this does not apply to comments made by unidentifiable parties when certain actions are not taken by the operator.

37. Subsection (2) provides for the defence to apply if the operator can show that they did not post the statement on the website. Subsection (3) provides for the defence to be defeated if the claimant can show that it was not possible for him or her to identify the person who posted the statement; that they gave the operator a notice of complaint in relation to the statement; and that the operator failed to respond to that notice in accordance with provision contained in regulations to be made by the Secretary of State. Subsection (4) interprets subsection (3)(a) and explains that it is possible for a claimant to “identify” a person for the purposes of that subsection only if the claimant has sufficient information to bring proceedings against the person.

In late January 2013, amendments were moved on report and one of these amendments, put forward by Lord Phillips of Sudbury and Lord Faulks, focused on Clause 5. The proposed amendment alters the language of the original text and provides a mechanism for defence, as opposed to what can be used to defeat any defence used by an operator, as found in the original text.

Anonymous postings

Graham Smith writes:

"The most controversial and difficult of these provisions is Clause 5, which according to the government’s consultation response on the draft Bill was to deliver a greater degree of protection against liability for intermediaries.

[snip]

"For anonymous or pseudonymous posts, on the face of it Clause 5 mostly offers no more than the existing defences, and in some important respects is less attractive. A proper assessment of the effect of Clause 5 on anonymous and pseudonymous posts is hindered by the unsatisfactory device of leaving significant elements to be prescribed by secondary legislation. The clause reads as if the drafters gave up half way through and punted off the most difficult aspects to a statutory instrument."

Notice and takedown: avoiding court orders?

The government’s preferred option in response to the joint committee was for ISPs to act as a liaison between the person complaining about a defamatory posting and the author (where the identity and contact details of the latter were unknown to the complainant.

The ISP would contact the author (or if this did not prove possible, take the posting down). If after an initial exchange of correspondence the issue remained in dispute, the ISP would be required to provide disclose the identity of the author to the complainant, who would then have to sue him/her to get Takedown ---and no claim could be taken against the intermediary.

Therefore, such regulations may dispense with the need for court orders. This could be contrary to EU law which requires court orders.

Regulations by the Ministry of Justice

The Ministry of Justice has published an eight page document on the "Guidance on Section 5 of the Defamation Act 2013 and Regulations".

The guidance provides information on what should be included in the Notice of Complaint and how the complaints should be handled. However, website operators are not obligated to follow the information or remove the comments if a complaint is issued against it. If the website operator takes no action after a complaint has been made, then the defence provided in Section 5 will not be available.

Response to a Notice of Complaint

Upon receiving a complaint, the website operator must respond within 48-hours. Point 13 of the Guidance allows for a complaint to be rejected by the website operator if the complainant has not included all necessary information so long as they are properly informed.

Action by website operators upon receiving a Notice of Complaint

As with responding to a complainant, the website operators must take action within 48-hours (in order to maintain the defence of Section 5).

Upon receiving a complaint, they must attempt to contact the poster of the statement or remove it themselves if they do not have their contact details.

One contacted the poster must then disclose whether they want the statement removed, if not they must disclose their full name and details of their postal address. They also have the option to indicate whether they want their information disclosed to the complainant.

Response by the poster

The poster has 5 full days to respond to the operator. If they fail to do so, then the website operator must remove the comment within 48 hours after the time period has ended in order to maintain their defence with Section 5. Once the statement has been removed, they must also inform the complainant in the same time -frame.

If the poster agrees to remove their statement then they are not obliged to disclose their information. However, the complainant can seek a court order for the release of the details in order to seek damages.

If they respond, but do not include the necessary information the website operators are must remove the statement within the 48 hour period, if they wish to maintain the defence.

Reposting of material

If a statement is reposted after it has been removed following a Notice of Complaint, then the same process as above must follow in order to keep the defence. In this situation, the poster will be engaged in the process. On second and subsequent instances of reposting, the website operator must remove the statement within 48 hours of receiving a complaint. It is the complainants obligation to inform the operator if previous complaints have been made. The website operator must check if the statements contain similar or identical defamatory content as the initial complaint.

Public Bill Committee

• Clause 5, 2012-06-21

Joint Committee on Human Rights

The Joint Committee on Human Rights published its report on the Bill 12 December 2012.

The report is available as HTML or PDF

From the report:

40. We are not satisfied with the Government's distinction in this matter. We think there is a real risk that website operators will be forced to arbitrate on whether something is defamatory or lawful, and will to readily make decisions on commercial grounds to remove allegedly defamatory material rather than engage with the process. As drafted, Clause 5 risks removing material from the internet, which, although it may be defamatory, may be lawful if a relevant defence applies. Material which is lawful may be suppressed because website operators are served with such notices. We recommend that the threshold for a Clause 5 notice should be elevated to 'unlawful', which would also ensure consistency with the E-Commerce Directive and the Pre-Action Protocol for defamation.

Debates

• New Clause 1 — Order for removal of defamatory statement from website, 2012-09-12

"Wrecking" Amendment

Lord Puttnam has put forward an amendment, passed in the House of Lords by 272 to 141, for a Leveson-style libel arbitration body that could leave journalists open to large fines if they do not consult with it before publishing their stories. Lord Lester has decried the amendment as "party political gamesmanship" and has warned that the whole Bill may have to be abandoned. Lester stated;

"Free speech in this country is in grave danger of being stifled by party political gamesmanship. The threat comes from politicians who have hijacked an attempt to reform our out-of-date, repressive libel law by clogging the Defamation Bill with wrecking amendments."

It has been reported that the Government may drop the Bill entirely rather than risk a defeat in the House of Commons with the amendment still attached.

The full text of the amendment is as follows;

"Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board

(1) The Lord Chief Justice shall establish a Defamation Recognition Commission.

(2) Schedule (Recognition Commission) makes provision relating to the Defamation Recognition Commission.

(3) The Defamation Recognition Commission shall certify bodies as Independent Regulatory Boards in accordance with the criteria in Schedule (Recognition Commission).

(4) An Independent Regulatory Board shall provide a recognised arbitration service as set out in Schedule (Specialist Arbitration Service).

(5) A court shall take into account when awarding costs and damages whether either party, claimant or defendant in a dispute has chosen not to use the recognised arbitration service of an Independent Regulatory Board.

(6) A court shall award costs under subsection (5) on an indemnity basis unless the interests of justice require otherwise.

(7) A court may order a successful party to pay all the costs of proceedings if such party has unreasonably refused to use an available recognised arbitration service.

(8) A court awarding in its judgment exemplary damages where a defendant is guilty of a flagrant breach of a defendants rights, can also take into account whether-

(a) a claimant refused to use a recognised arbitration service;

(b) a defendant refused to use or join a recognised arbitration service;

(c) the court shall also take into account whether a defendant first sought advice from a recognised Independent Regulatory Board before publication."

At the Third Reading in the House of Lords on 25 February 2013, Lord Fowler brought forward an amendment that would remove the 'wrecking amendment' from the final draft of the Bill.

In March 2013 amendments were proposed to the Crime and Courts Bill to provide for independent press regulation.

Blogs

• What the Defamation Bill means for the internet, Graham Smith, 2012-05-13
• Defamation Bill 2012 - libel reform ok, but not if you operate a website with "anonymous" comments etc., Spyblog, 2012-05-13
• Trolls and the defamation bill 2012, Francis Davey, 2012-06-12

Links

• Draft Defamation Bill Committee