Section 5 Defamation Act 2013: It’s decision time for website operators

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

With the Defamation Act 2013 (the "Act") now in force, the first section 5RegulationsguidanceFAQs notices will no doubt already be rolling in and website operators will be deciding whether or not to employ the new defence. To assist in their decision, the Ministry of Justice ("MOJ") has whittled its guidance on the section 5 (the "Regulations") down to 8 pages () and added a few more "frequently asked questions", bringing the total number to 56 ().

Another frequently asked question by website operators in relation to the new procedure is "is it worth the hassle?" To which my answer is "probably not", but it all depends on the size and objectives of the website operator. For those wishing to reduce risk and costs, it will almost certainly not be worth the hassle. Those who care passionately about freedom of expression and are willing to take risks to further that objective may think about it a little longer.

I have previously blogged about an earlier draft of the guidance and FAQs (summary of section 5) and provided a flow chart (Section 5 flow chart) to help navigate the complex notice and take-down procedure and demonstrate how cumbersome it is. You need only attend one of the numerous talks about the section 5 procedure on the conference circuit to get the picture.

To be fair to the MOJ team, they have thought long and hard about the many different scenarios that are likely to arise where section 5 might be used and have produced some useful guidance that now includes helpful boxes for such things as the "contents of the notice of complaint" and the "poster's response to the operator". They have also been at pains throughout the legislative process to balance the concerns of both website operators and the victims of online defamation. Unfortunately however, as the guidance and flow chart demonstrate, this is an almost impossible task. For every situation the MOJ has thought about, there will be dozens more that haven't been considered.

Where section 5 is useful

It is worth noting again that section 5 provides an extremely useful defence for website operators in circumstances where the poster of the defamatory statement can be identified and served with legal proceedings. In such cases, there is no need for the website operator to follow any procedure, or even respond to a notice of complaint at all, which is tough luck on the many victims of online defamation who can easily identify the wrongdoer but sensibly conclude that it would be a waste of both time and money to sue a man of straw.

In fact, in circumstances where the poster can be identified and sued, the website operator may not need to consider section 5 at all given that the often forgotten new section 10 of the Act provides that "the court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher."

For example, a claimant might argue that it not "reasonably practicable" to bring an action against a poster based in Australia, but that will be no answer to a section 5 defence if the poster can be identified and easily served via email or post.

Anonymity

All of this masks over the real problem of internet defamation: anonymity. It is this factor alone that has given rise to the convoluted take-down procedure in the Regulations and 8 pages of guidance from the MOJ.

It is true that there are many cases of serious online defamation (as well as harassment and breaches of privacy) where urgent action is required and the offending material ought to be removed immediately. For example, Twitter responded very quickly to remove numerous tweets that falsely accused Lord McAlpine of being a paedophile. This will continue to be the case with sections 5 and 10 in play and the likelihood is that most responsible website operators will continue as best they can to uphold their terms of use and remove material which is in clear breach of them, regardless of whether the poster can be identified. It is hoped that common sense will prevail in these cases without unnecessary legal expense.

However, it is in the many grey areas where the problem really lies: where, for example, the posting is arguably either not defamatory, honest comment, or, as is often the case with internet publications, would be unlikely to cause serious harm for the purposes of the new section 1 of the Act. It is regarding these difficult cases - not the Lord McAlpine type cases - where some website operators rightly question whether take-down is appropriate, particularly where the alleged victim is a publicly quoted company complaining about an obscure blog.

And so it is in those cases where the poster cannot be identified and the posting is not obviously unlawful or otherwise in breach of the website operator's terms of use that website operators will have to decide whether to rely on the section 5 procedure, simply take the posting down, or rely on the other defences to defamation, including the important hosting defence provided by Regulation 19 of the E-Commerce Regulations 2002 (The Regulation 19 defence).

If the website operator elects to follow the section 5 procedure, they will need to look carefully at their online complaints procedure, provide training to those responsible for dealing with complaints, and perhaps develop some software to monitor the numerous deadlines included in the procedure.

The section 5 notice

The first question an abuse team will need to decide on receipt of a section 5 notice is whether it complies with the requirements of both section 5(6) of the Act and Regulation 2 of the Regulations. The combined effect of those provisions is to require a valid notice of complaint to contain the following:

• the name and email address of the complainant;
• the URL or location of the statement complained of;
• an explanation of what the statement says and why it is defamatory of the complainant;
• the meaning the complainant attributes to the statement complained of;
• the aspects of the statement which the complainant believes are factually incorrect or opinions not supported by fact;
• confirmation that the complainant does not have sufficient information about the author to bring proceedings against them; and
• confirmation of whether the complainant consents to his name and email address being provided to the poster.

If the notice is missing any of these elements, the website operator can reject it provided that it does so within 48 hours of receipt and sets out in its response the requirements of a valid notice. It need not explain why the notice received is deficient.

It is very important to note that this is simply a box-ticking exercise. Unlike the requirement for the claimant to demonstrate that the material complained of is (prima facie) "unlawful" to defeat the Regulation 19 defence, these requirements of section 5 do not set a legal threshold. The complainant need not be correct either in law or in fact, for example in identifying words as facts rather than comments or as defamatory as opposed to mere abuse; he simply needs to tick the boxes.

However, when going through the section 5 notice against the section 5 criteria, website operators may want to have half an eye, if not both eyes, on whether the complaint is sufficient to put the website operator "on notice" that the material is unlawful for Regulation 19 purposes. Why? Because the likelihood is that this is precisely what they will need to do two weeks later when the section 5 procedure has been exhausted and - surprise, surprise - the poster has decided to stay anonymous such that the posting must come down if the section 5 defence is to apply.

Once website operators have gone through this process a few times, no doubt occasionally with the assistance of some expensive lawyers, I suspect they may reconsider their approach and simply decide at the outset whether to rely on Regulation 19 or simply remove the posting to avoid the hassle of the section 5 procedure. If that's the case, then section 5 will not have achieved a great deal and there will still be more material removed from the internet than legally necessary.