The long-awaited reform of defamation has come closer with publication of the Bill. The proposed defence of web site operators will be of special interest to SCL members.
The Defamation Bill, which was trailed in the Queen's Speech, has now been published. The full text can be accessed here.
While the provisions restricting libel tourism and limiting liability in most cases to the author, editor and publisher(cl. 9 and cl. 10, respectively), special interest will be paid to cl. 5, which outlines the proposals for a defence available to web site operators. Clause 5 is as follows:
5 Operators of websites
(1) This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website.
(2) It is a defence for the operator to show that it was not the operator who posted the statement on the website.
(3) The defence is defeated if the claimant shows that—
(a) it was not possible for the claimant to identify the person who posted the statement,
(b) the claimant gave the operator a notice of complaint in relation to the statement, and
(c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.
(4) A notice of complaint is a notice which—
(a) specifies the complainant's name,
(b) sets out the statement concerned and explains why it is defamatory of the complainant,
(c) specifies where on the website the statement was posted, and
(d) contains such other information as may be specified in regulations.
(5) Regulations may—
(a) make provision as to the action required to be taken by an operator of a website in response to a notice of complaint (which may in particular include action relating to the identity or contact details of the person who posted the statement and action relating to its removal);
(b) make provision specifying a time limit for the taking of any such action;
(c) make provision conferring on the court a discretion to treat action taken after the expiry of a time limit as having been taken before the expiry;
(d) make any other provision for the purposes of this section.
(6) Regulations under this section—
(a) may make different provision for different circumstances;
(b) are to be made by statutory instrument.
(7) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(8) In this section "regulations" means regulations made by the Secretary of State.
Clause 8 proposes the adoption of a single publication rule.
Laurence Eastham comments:
The web site operators' defence is much wider and more generous than I expected. It would appear to allow, say, SCL to carry a defamatory comment posted by a member on the SCL site long after notice of that comment and its defamatory nature has been notified to SCL. We would have no liability, provided that the person making the comment can be identified – even if we refused to remove the comment after acknowledging that it was untrue. That hardly seems right even if other remedies, such as an injunction, may be available to make an operator take the comment down. What am I missing?
It is also worth noting that the proposed single publication rule is entirely without any qualification relating to requested corrections. Given the very short limitation period that applies in cases of defamation and the way that defamatory web content (in particular) can be beyond one's ken for long periods, this may create occasional injustice - especially where newspapers of record are concerned.