Defending a defamation claim can be a complex legal battleground, but understanding the core defences is crucial for anyone involved. Operators of websites have a number of defences to a defamation claim.
Claims in defamation can be brought against the author, editor, or publisher of the defamatory statement. So the defences provided to operators of websites often centre around providing criteria for when an operator of a website can, or cannot in the case of defences, be considered an author, editor, or publisher. If the operator of the website is not deemed to be an author, editor, or publisher, it cannot be liable in defamation.
Innocent dissemination
The Court of Appeal has held that those only involved in dissemination are not to be treated as publishers, unless they knew, or ought to have known by the exercise of reasonable care, that the publication was likely to be defamatory.
At common law, innocent dissemination provides a defence to distributors who are otherwise liable, if they can establish, that they did not know that the material they were distribution was defamatory, nor did they know that the material was likely to be defamatory, and their lack of knowledge was not through their own negligence. This would provide most internet service providers with a defence prior to notification.
It has been held that internet service providers which ‘perform no more than a passive role in facilitating postings on the internet’ are not publishers at common law. To be held as publisher, ‘there must be knowing involvement in the process of the publication of the relevant words. It is not enough to play a passive instrumental role in the process’.
Defamation Act 1996
Provides a defence for those not deemed to be the author, editor, or publisher.
Author means the ‘originator of the statement unless that person did not intend for the statement to be published’.
Editor means having ‘editorial or equivalent responsibility for the content of the statement or decision to publish it’.
Publisher means a ‘commercial publisher whose business is issuing material to the public, or a section of the public, who issued the statement in the course of business’.
Those deemed not to be authors, editors, or publishers include, those who only ‘operate or provide any equipment, system, or service by means of which the statement is retrieved, copied, distributed, or made available in electronic form’, or only ‘operate, or provide access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control’.
Consequently, internet service providers that only host or cache material will usually not ve considered publishers. Once a defendant has established that they are not the author, editor, or publisher, they must show that they took reasonable care in relation to the publication, and that they did not know, and had no reason to believe, that what they did caused, or contributed, to the publication of the defamatory statement.
The defence is denied once the defendant has been given notice of the defamatory statement. However, where the time between receipt of notice and removal of the defamatory statement is short, a claim may be struck out as an abuse of process.
The Electronic Commerce (EC Directive) Regulations 2002
Provides a defence for those that merely host, cache, or act as conduits, such as internet service providers. Regulation 19 was seen as the most generous defence prior to the Defamation Act 2013, as it provides a defence for those who only host the information provided by another, provided that the service provider did not have actual knowledge of the unlawful nature of the information, and was not aware of facts and circumstances from which that unlawful nature would have been apparent; or, upon gaining such knowledge or awareness, acted expeditiously to remove, or disable access to the information; and the person who provided the information, was not acting under the authority or control of the service provider.
The distinction between this defence and the Defamation Act 1996 or common law defence, is that the required knowledge of the internet service provider to deny this defence, is knowledge that the statement is unlawful, or the facts or circumstances which make that apparent. This is more than simply knowing, or having reasons to believe, that the statement is defamatory. It also requires knowing that there is no defence available for the defamatory statement.
Defamation Act 2013
Provides a further defence for website operators in respect of defamatory statements posted on their platforms by third parties.
If the defamatory statement is made by an identifiable author, the defence will be unconditional unless the operator has acted with malice.
For unidentified authors, the defence will be available unless the claimant shows that they notified the operator in relation to the statement, and the operator failed to respond in accordance with any provision contained in regulations. No definitions of the key terms have been provided and it will therefore be for the courts to interpret. This defence is likely to apply to retail websites, review and discussion forums, and social media networks.
This defence does not affect the pre-existing statutory and common law defences which already provided significant protection.
The fact that operators moderate statements posted on their sites, does not in itself defat the defence. The defence will not be defeated because an operator automatically removes or blocks certain swearwords, spam, or child abuse images. However, where moderation does involve editing or deleting part of a past, knowledge may stray into participation such that operators may become liable as publisher.
The Defamation (Operators of Websites) Regulations 2013 sets out the information which should be provided and the process which should be followed in relation to the notice of complaint and the operators’ response. Where the claimant can identify the person who posted the statement without the help of the operator, there is no requirement for the operator to respond to the notice of complaint to rely on the defence. However, the claimant must have sufficient information to bring proceedings against that person. This will generally require an address for the claim to be served, although a court may be persuaded to make an order for service via email or social network. It is unclear how much research a claimant is required o take before they can establish that it is not possible to identify the author.
The Defamation Act 2013 also provides unconditional protection against those deemed not be the author, editor, or publisher of the statement, unless the court is satisfied that ‘it is not reasonably practicable for an action to be brought against’ one of those persons. Author, editor, and publisher have the same meaning as the Defamation Act 1996 as discussed above. It is unclear when it will be deemed ‘not reasonably practicable’ to pursue the author, editor, or publisher.
However, the Defamation Act 2013, provides that where the claimant has been successful with an action, the court may order the operator of the website on which the defamatory statement is posted, to remove the statement, or any person who is not the author, editor, or publisher of the statement to stop distributing, selling, or exhibiting material containing the statement.
To conclude
Operators of websites such as internet service providers have several defences at their disposal offering significant protection.
Considering that actions are increasingly in relation to defamatory publications on social networks which tend to be based in the United States of America, which creates other issues in relation to jurisdiction and enforcement, it seems that such networks, will rarely be held responsible for hosting defamatory publications.
Identifying and locating the author of the defamatory statement can sometimes be a costly exercise for claimants using procedures like the Norwich Pharmacal jurisdiction. Further attempts to pursue the host where it has not been possible to identify the author will further increase costs.
Expert legal assistance from Lawdit Solicitors
At Lawdit Solicitors, we specialise in defamation law. If you are facing a potential defamation claim, whether as a claimant or defendant, our expert team is ready to provide the guidance and representation you need.
