The Government has recently published draft regulations which give website operators a defence against defamation claims where they did not post the statement on their website.
However, this defence is defeated if:
- it was not possible for the claimant to identify the poster of the statement;
- the claimant gave the website operator a notice of complaint in relation to the statement; and
- the website operator failed to respond to the notice of complaint in the manner prescribed by the regulations.
But, assuming the complaint notice contains all the required information (which is set out in the regulations), a website operator will have a defence if it follows the procedure set out in the regulations.
As a hypothetical example, a statement is posted on a website anonymously. An individual considers that the statement is defamatory of him and submits a complaint notice to the website operator. The operator has to pass the complaint to the poster of the statement within 48 hours and give him five days to respond to the complaint. If no, or an inadequate, response is received within five days, the operator must take the statement down from the site. On the other hand, if an adequate response is received within five days and the poster objects to the removal of the statement, the website operator may leave the statement on the site (and it will have a complete defence to a claim having followed the procedure).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.