Defamation 2014: New Spot the Ball Competition

January 10, 2014

I haven’t seen a spot-the-ball competition in a newspaper for some time – perhaps I am buying the wrong papers. In a nostalgic moment, I decided to fill the void with a similar competition on the SCL web site. It’s not quite so catchy title is ‘Spot the Designated Defamation E-mail Address’. Your time starts now and you have the whole of the Internet to pore over. You can win up to £1,000,000.

As all SCL members will know, a new age of defamation law has dawned in England and Wales with the implementation of the Defamation Act 2013 on 1 January 2014. No doubt you have been busy with s 5 of the Act, which offers the special defence for operators of web sites in relation to user generated content. Your attention was also no doubt devoted to the Defamation (Operators of Websites) Regulations 2013 ({SI 2013 No. 3028:}), which were made on 2 December and have effect from 1 January 2014. Life was no doubt made easier by the Ministry of Justice which offered its {guidance on s 5 and the Regulations:}.

I suspect that the new Act and the Regulations will make it hard for the defamed to do much. The poor or poorly educated who get defamed will find it especially hard.

The MoJ guidance on the all-important Notice of Complaint begins with ‘A Notice of Complaint should be sent to the operator of the website on which the allegedly defamatory posting has been published. The Government encourages operators to set up and publicise a designated email address for this purpose as a matter of good practice, which we encourage complainants to use. Operators may also wish to provide an online form that complainants can use to submit a Notice of Complaint.’

So there’s the inspiration for my competition. Spot the online designated email address and the online form. SCL members must know where they are because you have had days to draft the Notice and advise your clients where to put it on their web site. Surely the Government publishing the Regulations less than a month before implementation cannot have stopped you. Don’t you know that pre-Christmas is the perfect time for quiet drafting?

Or dare I suggest that there are not actually any such addresses and Notices of Complaint on web sites at all. Perhaps when you suggested where your client web site operator should stick the Notice, they told you where you could stick it.

I admit that I come to the new Act and to the Regulations with a prejudice. I thought that the Act was so focused on the very real ills that arose from it being (relatively) easy for rich people to sue for defamation in England and Wales that it has made it too hard to remedy the harm that can arise from lies told on the Internet. It also did nothing about the fact that it has always been really hard for poor people to get redress when lies are published about them but then even I admit that was a tough ask.

The Regulations do not seem to me to help. In fact, the absence of a requirement that a Notice of Complaint be easily accessible, and that any Notice should have software embedded in it to facilitate its correct completion, allows the unscrupulous web site operator to greet 99% of complaints with a formal e-mail indicating that ‘your complaint does not meet the requirements of SI 2013/3028’ and being pretty confident that the complainer will be confused to the point of despair.

Your ‘Spot the’ time is up now. Please complete the entry form {i}perfectly{/i} to claim your prize.

Finally, one piece of advice if you have been defamed on a web site via user-generated content: little of the Defamation Act 2013 applies in Scotland, you could sue there.