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Until now, the law has at times suffered criticism for failing to keep pace with the digital age. Whether such criticism was fair or not, this section, described during the Commons debates on the Defamation Act as being “the most innovative and difficult part of the Bill” is designed to go some way to addressing that perception.
The section creates a new defence for an operator of a website where, upon receiving a complaint (which includes in it the information required by the section) the operator is able to establish that it was not the operator who posted the statement on the website.
If the statement posted on the website is made by an identifiable author (someone who the complainant has sufficient information to bring defamation proceedings against) the defence is unconditional, and can only be defeated if the complainant can prove the operator has acted with malice.
If the author is unidentifiable (as in the case of anonymous or pseudonymous posters), the defence becomes conditional upon compliance with the Regulations. Broadly, what this means is that, in the case of anonymous posters, an operator can either: (i) try to defend the statement (using defences under the Defamation Act as if it were the primary publisher, or, by arguing it is not the primary publisher under Regulation 19 of the e-commerce directive 2002); or (ii) follow what is known as the “Section 5 Procedure”.
Section 5 will afford greater protection to website operators, so they would be wise to follow the procedure. At the time of writing the position of the major operators is still unclear.
The Section 5 Procedure
Should the recipient of a complaint wish to avail themselves of this protection in the case of an anonymous poster, it must within 48 hours of receiving a valid complaint (excluding weekends and public holidays) notify the poster of the complaint; telling the poster that the statement complained of may be removed unless a response is received from the poster within five days. That response must include the following:
|(i)||Clarification as to whether the poster does or does not wish the statement to be removed;|
|If the poster does not wish it to be removed, his name and postal address (so as to facilitate direct resolution between the complainant and the poster); and,|
|An indication as to whether the poster consents to his contact details being sent by the operator to the complainant.|
If the operator has no means of contacting the poster, the operator must remove the statement. If the poster (i) fails to reply within 5 days; (ii) fails to provide all necessary information; or (iii) the poster agrees to the statement being removed, then the statement must be removed by the operator.
If the poster provides their details, the complainant can deal with them directly.
If the poster objects to the statement being removed and also their name being disclosed, the complainant may apply for a Norwich Pharmacal (third party disclosure) Order, so as to obtain the details of the poster from the operator. An operator does not have to disclose details, without a court order, in circumstances where the poster objects to details being provided.
There are also provisions in the Regulations designed to deal with persistent re-posting.
This is likely to prove a very useful as a tool to counter those who are posting anonymously, albeit the timeframe will be too lengthy for some situations (a minimum of 7 days from receipt of complaint before anything substantive must happen).
There are possible upsides and downsides for those using the procedure, and it may be that operators adopt different policies, particularly where issues of jurisdiction are concerned. Some publishers will prefer to simply remove the information in question, some may feel pressurised to test the process by those on different sides of the argument.
Jon Oakley is an Associate in the reputation protection team at Michael Simkins LLP.