August 28, 2013
MoJ Consultation on s.5 Operators of Websites Regulations Guidance
Draft Guidance and FAQs on the notice procedure published
The Ministry of Justice is consulting on the Guidance and FAQs which accompany newly issued draft Regulations under s. 5 Defamation Act 2013. Section 5 of the Act outlines a new defence to defamation claims available to website operators who follow a process to be set out in Regulations.
Under the procedure a complainant is required to send a notice to the website operator containing prescribed information including: the location of the offending material (usually the URL), why it is said to be defamatory, what defamatory meaning the complainant ascribes to the statement complained of, and in what respects the statement is untrue or comment based on untrue facts.
The website operator is to communicate the position to the poster (if it has the means to do so), who then has a chance to reply and provide their contact details. Having complied with the process, the website operator can avail itself of the defence under s. 5, regardless of the position as between the complainant and the poster.
From the outset s. 5 has drawn comparison with the existing defences for website operators under the E-Commerce Regulations, and it remains to be seen how the two defences will interact.
Key questions are how much of an impact the new process will have in practice for complainants and whether the Guidance is sufficient (a matter on which consultation responses are sought). If a poster refuses to provide their details, the complainant will be in the same position as he or she would have been prior to the Act, and will have to take the matter to court. The only nudge given to website operators in this regard is that notifying the complainant of the possibility of seeking a court order is “encouraged as a matter of good practice”.
On receiving a defective notice, website operators are not required to tell the complainant why it is defective, but merely to set out the requirements. Thus it seems that a standard form letter will be sufficient response. There is also no obligation on a website operator to pass on additional information and/or comment from the poster which the poster provides with his or her contact details. Not to pass such information on would seem rather unhelpful, particularly if aim is to get the matter resolved as quickly as possible.
Useful guidance is provided as to working out time limits (particularly as some time limits are measured in days, others in business days), and as to what is regarded as “sufficient” information for the complainant to bring an action against the poster.
There are a number of matters which are left to the judgement of the website operator (and ultimately the court if a dispute arises). The website operator is not obliged to check that contact details provided by a poster are real, only if they are “obviously false” must the operator take the statement complained of down to retain the s. 5 defence. However, unless the details given are, for example “Mickey Mouse” it seems difficult to say what will constitute “obviously false”. If the details do subsequently turn out to be false the complainant would be reliant on the goodwill of the website to take the material down.
The MoJ has asked for consultation responses by the end of August. The Regulations are expected to be laid before Parliament in the Autumn.
The scope of the new s.5 defence is one of the matters covered in the comprehensive Blackstone’s Guide to the Defamation Act 2013, forthcoming, written by members of 5RB.