Defamation Act 2013

[PlanB]

Re: Defamation Act 2013

some bullies . . . will make constant complaints - accusations of libel - knowing that the posts they object to will be removed, right or wrong, and they can continue with their behavior unchallenged.

There's no doubt in my mind that the *bullies* to whom you refer (no names mentioned to avoid a libel complaint) will use this new Act to their advantage. It'll be an easy way to cleanse websites of justifiable criticism of their alleged heinous practices.

[Gorang]

Re: Defamation Act 2013

(and the complainant has to give us their details too btw, and same thing with permission to pass on to poster etc)

That's got me thinking here

IF the complainant gives their full details to the WO but refuses for that info to be passed on to the poster

is it ONLY by way of court summons that the poster will be able to find out the details of who has actually made the complaint

I am asking as this would not seem to be fair to me

ie.
Poster posts
complaint made
complainant gives personal details to WO but NOT permission for the details to be passed onto the poster
WO contacts poster
poster complies and give their details and then asks who is making the complaint
poster then says NO permission to give the complainant the posters details, coz they have NOT gave permission for their details to be passed on to poster (tit for tat...........you can just see it happening)
Complainant wants court action
Court grants order for WO to release posters details to the court in order for a summons to be sent
Complainant gets posters details to serve the summons
Poster knows NOTHING until summons comes in the door and does NOT know who has sent the summons as this is first time they have seen the complainants name and address so has to wonder if it about the same complaint as summons POC is vague

I hope I have some of this wrong as it wouldn't be very fair in my view if one gets before the other gets if you see what I mean


And for avoidance of doubt I personally think

If you have the rollocks to post sumit INTENTIALLY that is defamatory, then you should have the rollocks to stand by what you wrote and if you haven't got the rollocks to stand by what you say then DON'T write it in the first place

UNENTENTIAL defamatory is different as suggests you knew NO better at the time of writing/posting which can/could be sorted with an edit and an appology

ALSO

You should NOT write anything that is defamatory about anyone, if you DON'T have proof/evidence that it is correct

But that is just me and my opinion lol

[Gorang]

Re: Defamation Act 2013

Oddly enough I had a post pulled on MSE recently where I referred to a particular CMC company by name and ''...also known as the Welsh Mafia'', which although was factually correct could possibly still be considered as potentially libelous, certainly by MSE. My own view was that it wasn't but it just goes to show that the line isn't necessarily that clear.

Thank you as I didn't think about that side of it

[Amethyst]

Re: Defamation Act 2013

There's no doubt in my mind that the *bullies* to whom you refer (no names mentioned to avoid a libel complaint) will use this new Act to their advantage. It'll be an easy way to cleanse websites of justifiable criticism of their alleged heinous practices.

How ? I think it makes it a lot harder.

I think it will stop people making suprious defamation claims because a) the complainant has to give the WO their details and spell out exactly what the complaint is and why and how it is defamatory and b) the poster can give the WO their details and stand by their comments - the complainant then has to go to court to get the WO to release the posters details, then has to bring a defamation action directly against the poster (after preaction protocols etc)

[Amethyst]

Re: Defamation Act 2013

I think the simplest thing to do is read the fabulous explanatory speech in the hansard link I posted earlier, and the relevant regulations, and Defamation Act 2013.

It is markedly fairer, to posters, complainants and website owners.


http://www.legislation.gov.uk/ukdsi/...04620/contents

[CleverClogs]

Re: Defamation Act 2013

There's no doubt in my mind that the *bullies* to whom you refer (no names mentioned to avoid a libel complaint) will use this new Act to their advantage. It'll be an easy way to cleanse websites of justifiable criticism of their alleged heinous practices.

There are ways to comment upon their antics which are not defamatory.

For example, it may or may not be defamatory to refer to a certain debt farming company as "The Leeds Losers", but it would surely be nothing more than common abuse (and hence not defamatory) to call them Bowells or to refer to them as "conniving little shits".

[PlanB]

Re: Defamation Act 2013

You should NOT write anything that is defamatory about anyone, if you DON'T have proof/evidence that it is correct

As EXC has said defamation is a grey area. I'll add to that that defamation is also subjective. Something which is water off a duck's back to a thick-skinned person can be devastating to others. Max Clifford says "there is no such thing as bad publicity" and sometimes I think he has a point (except in the event of the recent eleven alleged indecent assault charges against minors obviously).

[CleverClogs]

Re: Defamation Act 2013

You should NOT write anything that is defamatory about anyone, if you DON'T have proof/evidence that it is correct

In the case of Scrooby v Amazon, Vaughan Jones et al, the claimant actually admitted in court that the allegedly defamatory statements were true!

[PlanB]

Re: Defamation Act 2013

There are ways to comment upon their antics which are not defamatory.

For example, it may or may not be defamatory to refer to a certain debt farming company as "The Leeds Losers", but it would surely be nothing more than common abuse (and hence not defamatory) to call them Bowells or to refer to them as "conniving little shits".

Perhaps you should be tasked with compiling a glossary of acceptable insults for the site ?

[PlanB]

Re: Defamation Act 2013

it may or may not be defamatory to refer to a certain debt farming company as "The Leeds Losers".

Surely with Cel's track record of successful SD set-asides that would be considered factually correct and therefore not libellous

[Amethyst]

Re: Defamation Act 2013

We had a guy once compile a list of all swear words to add to the swear filter..... most of them I had never heard of, let alone knew the meaning of.

[CleverClogs]

Re: Defamation Act 2013

We had a guy once compile a list of all swear words to add to the swear filter..... most of them I had never heard of, let alone knew the meaning of.

Was pen pidyn included?

[PlanB]

Re: Defamation Act 2013

Here is a post PT made on another forum which lists the common defences in defamation and slander cases. My favourite is Number 7 where in Scots law saying something libellous "in the heat of an argument" is allowable. Only in Scotland eh


Common defences to libel and slander

• That the alleged wrong-doer was not the publisher of the statement;
• That the statement did not refer to the alleged victim;
• That the statement's meaning was not defamatory;
• That the statement was true;
• That the statement was for comment on a matter of public interest;
• In an action for slander under English law, that the statement caused no loss to the alleged victim; or
• In a defamation action under Scots law, that the statement was made in the heat of an argument.

[Tools]

Re: Defamation Act 2013

Don`t think so, but neither was the English version as I am well aware.

[Amethyst]

Re: Defamation Act 2013

Requirement of serious harm

1.Serious harm

Defences

2.Truth

3.Honest opinion

4.Publication on matter of public interest

5.Operators of websites

6.Peer-reviewed statement in scientific or academic journal etc

7.Reports etc protected by privilege


http://www.legislation.gov.uk/ukpga/2013/26/contents/enacted/data.htm

The Defamation Act 2013 received Royal Assent on the 25 April 2013. It will come into force on the 1 January 2014, together with the Defamation (Operators of Websites) Regulations 2013.




'' 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)For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.

(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)Subject to any provision made by virtue of subsection (7), 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.

(7)Regulations may make provision about the circumstances in which a notice which is not a notice of complaint is to be treated as a notice of complaint for the purposes of this section or any provision made under it.

(8)Regulations under this section—

(a)may make different provision for different circumstances;

(b)are to be made by statutory instrument.

(9)A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(10)In this section “regulations” means regulations made by the Secretary of State.

(11)The defence under this section is defeated if the claimant shows that the operator of the website has acted with malice in relation to the posting of the statement concerned.

(12)The defence under this section is not defeated by reason only of the fact that the operator of the website moderates the statements posted on it by others. ''




EXPLANATION OF ABOVE

'' Section 5: Operators of websites

36.This section creates a new defence for the operators of websites where a defamation action is brought against them in respect of a statement posted on the website.

37.Subsection (2) provides for the defence to apply if the operator can show that they did not post the statement on the website. Subsection (3) provides for the defence to be defeated if the claimant can show that it was not possible for him or her to identify the person who posted the statement; that they gave the operator a notice of complaint in relation to the statement; and that the operator failed to respond to that notice in accordance with provision contained in regulations to be made by the Secretary of State. Subsection (4) interprets subsection (3)(a) and explains that it is possible for a claimant to “identify” a person for the purposes of that subsection only if the claimant has sufficient information to bring proceedings against the person.

38.Subsection (5) provides details of provision that may be included in regulations. This includes provision as to the action which an operator must take in response to a notice (which in particular may include action relating to the identity or contact details of the person who posted the statement and action relating to the removal of the post); provision specifying a time limit for the taking of any such action and for conferring a discretion on the court to treat action taken after the expiry of a time limit as having been taken before that expiry. This would allow for provision to be made enabling a court to waive or retrospectively extend a time limit as appropriate. The subsection also permits regulations to make any other provision for the purposes of this section.

39.Subsection (6) sets out certain specific information which must be included in a notice of complaint. The notice must specify the complainant’s name, set out the statement concerned and where on the website the statement was posted and explain why it is defamatory of the complainant. Regulations may specify what other information must be included in a notice of complaint.

40.Subsection (7) permits regulations to make provision about the circumstances in which a notice which is not a notice of complaint is to be treated as a notice of complaint for the purpose of the section or any provision made under it.

41.Subsection (8) permits regulations under this section to make different provision for different circumstances.

42.Subsection (11) provides for the defence to be defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned. This might arise where, for example, the website operator had incited the poster to make the posting or had otherwise colluded with the poster.

43.Subsection (12) explains that the defence available to a website operator is not defeated by reason only of the fact that the operator moderates the statements posted on it by others ''



And the Regulations....


The Defamation (Operators of Websites) Regulations 2013

Made

***

Coming into force in accordance with regulation 1(1)

The Secretary of State makes the following Regulations in exercise of the powers conferred by section 5 of the Defamation Act 2013(1).

A draft of these Regulations was laid before Parliament in accordance with section 5(9) of that Act and approved by a resolution of each House of Parliament.
Citation, commencement and interpretation

1. (1) These Regulations may be cited as the Defamation (Operators of Websites) Regulations 2013 and come into force at the same time as section 5 of the Defamation Act 2013.

(2) In these Regulations—

“the Act” means the Defamation Act 2013;

“the operator” means the operator of the website on which the statement complained of in the notice of complaint is posted;

“the poster” means the person who posted the statement complained of on the website referred to in the notice of complaint.

(3) In these Regulations, where action is to be taken by the operator within 48 hours of any point in time, any period of time which falls on Saturday, Sunday, Good Friday, Christmas Day or any day which is a bank holiday under the Banking and Financial Dealings Act 1971(2) in England and Wales is to be disregarded.
Notice of complaint: specified information

2. Subject to regulation 4, a notice of complaint must (as well as including the matters referred to in section 5(6)(a) to (c) of the Act)—

(a)specify the electronic mail address at which the complainant can be contacted;

(b)set out the meaning which the complainant attributes to the statement referred to in the notice;

(c)set out the aspects of the statement which the complainant believes are—

(i)factually inaccurate; or

(ii)opinions not supported by fact;

(d)confirm that the complainant does not have sufficient information about the poster to bring proceedings against that person; and

(e)confirm whether the complainant consents to the operator providing the poster with—

(i)the complainant’s name; and

(ii)the complainant’s electronic mail address.



Actions of operator in response to notice of complaint

3. Subject to regulation 4, for the purposes of section 5(3)(c) of the Act the claimant must show that the operator failed to respond to a notice of complaint in accordance with the provisions of the Schedule.
Defective notices to be treated as notice of complaint

4. (1) Where a notice given to the operator contains a complaint that a statement on the operator’s website is defamatory of the complainant but does not contain all the information required by section 5(6)(a) to (c) of the Act and by regulation 2, that notice is to be treated as a notice of complaint for the purposes of section 5(3)(b) and (c) of the Act.

(2) Where the operator receives a notice which is to be treated as a notice of complaint by virtue of paragraph (1)—

(a)regulation 3 does not apply; and

(b)for the purposes of section 5(3)(c) of the Act the claimant must show that the operator failed to send to the complainant, within 48 hours of receiving the notice, notification in writing—

(i)that the notice does not comply with the requirements set out in section 5(6)(a) to (c) of the Act and regulation 2; and

(ii)what the requirements of those provisions are.
Time limits: court discretion

5. Where in any action for defamation—

(a)an operator relies on the defence in section 5(2) of the Act; and

(b)a question arises as to whether any action required to be taken by the operator in response to a notice of complaint took place within the time limit specified in regulation 4(2)(b) or in the Schedule for taking that action,

the court may, if it considers it in the interests of justice to do so, treat any action taken after the expiry of the time limit as having been taken before the expiry.

Signed by authority of the Secretary of State

Name

Minister of State

Ministry of Justice

Date

Regulation 3

SCHEDULE

Actions to be taken by operator in response to notice of complaint in order to maintain section 5(2) defence
Removal of statements from website

1. (1) This paragraph applies where a provision of this Schedule provides that an operator must remove a statement from the locations on the website specified in a notice of complaint within a specified period.

(2) The operator is to be taken to have removed the statement concerned from a particular location within that period if, before that period has elapsed, another person has removed the statement from that location.


Response to notice of complaint: initial steps

2. (1) Unless paragraph 3 or 9 applies, the operator must, within 48 hours of receiving a notice of complaint, send the poster—

(a)a copy of the notice of complaint, altered to conceal the complainant’s name and address if the operator has received confirmation that the complainant does not consent to the operator providing this information to the poster;

(b)notification in writing that the statement complained of may be removed from the locations on the website which were specified in the notice of complaint unless—

(i)the operator receives a response in writing from the poster by midnight at the end of the date specified in the notification as the deadline for responding (which must be the 5th day after the day on which the notification is sent); and

(ii)that response complies with sub-paragraph (2); and

(c)notification in writing that the information mentioned in sub-paragraph (2)(b)(i) or (ii) will not be released to the complainant unless—

(i)the poster consents; or

(ii)the operator is ordered to do so by a court.

(2) To comply with this sub-paragraph the response must—

(a)inform the operator whether or not the poster wishes the statement to be removed from the locations on the website which were specified in the notice of complaint; and

(b)where the poster does not wish the statement to be removed from those locations—

(i)provide the poster’s full name;

(ii)provide the postal address at which the poster resides or carries on business; and

(iii)inform the operator whether the poster consents to the operator providing the complainant with the details mentioned in paragraphs (i) or (ii).

3. (1) Where the operator has no means of contacting the poster paragraph 2 does not apply and the operator must, within 48 hours of receiving a notice of complaint, remove the statement from the locations on the website which were specified in the notice of complaint.

(2) The operator is not to be taken as having a means of contacting the poster unless the means available to the operator include private electronic communication (for example electronic mail or other means of private electronic messaging).

4. (1) Unless paragraph 9 applies, the operator must, within 48 hours of receiving a notice of complaint, send the complainant an acknowledgement in writing of the notice.

(2) The acknowledgement must—

(a)where paragraph 2 applies, state that the operator has acted in accordance with that paragraph;

(b)where paragraph 3 applies, inform the complainant that the statement has been removed from the locations on the website which were specified in the notice of complaint.
Response to notice of complaint: poster fails to respond

5. (1) This paragraph applies where the operator acts in accordance with paragraph 2 in respect of a notice of complaint and the poster fails to respond within the period specified in paragraph 2(1)(b)(i).

(2) Where this paragraph applies the operator must, within 48 hours of the end of that period—

(a)remove the statement from the locations on the website which were specified in the notice of complaint; and

(b)send the complainant notice in writing that the statement has been removed from those locations on the website.
Response to notice of complaint: response does not include all required information

6. (1) This paragraph applies where—

(a)the operator acts in accordance with paragraph 2 in respect of a notice of complaint;

(b)the poster responds to the operator within the period specified in paragraph 2(1)(b)(i); and

(c)the response does not comply with paragraph 2(2).

(2) Where this paragraph applies the operator must, within 48 hours of receiving the response—

(a)remove the statement from the locations on the website which were specified in the notice of complaint; and

(b)send the complainant notice in writing that the statement has been removed from those locations on the website.

(3) For the purpose of this paragraph a response does not include the information mentioned in paragraph 2(2)(b) if a reasonable website operator would consider the name or postal address provided under paragraph 2(2)(b)(i) or (ii) to be obviously false.
Response to notice of complaint: poster wishes statement to be removed from website locations

7. (1) This paragraph applies where—

(a)the operator acts in accordance with paragraph 2 in respect of a notice of complaint;

(b)the poster responds to the operator within the period specified in paragraph 2(1)(b)(i); and

(c)the poster wishes the statement to be removed from the locations on the website specified in the notice of complaint.

(2) Where this paragraph applies the operator must, within 48 hours of receiving the response—

(a)remove the statement from the locations on the website which were specified in the notice; and

(b)send the complainant notice in writing that the statement has been removed from those locations.
Response to notice of complaint: poster does not wish statement to be removed from website locations

8. (1) This paragraph applies where—

(a)the operator acts in accordance with paragraph 2 in respect of a notice of complaint;

(b)the poster responds to the operator within the period specified in paragraph 2(1)(b)(i); and

(c)the poster does not wish the statement to be removed from the locations on the website specified in the notice of complaint.

(2) Where this paragraph applies the operator must, within 48 hours of receiving the response—

(a)inform the complainant in writing—

(i)that the poster does not wish the statement to be removed; and

(ii)that the statement has not been removed from the locations on the website specified in the notice of complaint; and

(b)where the poster—

(i)has consented to the operator providing the poster’s name or address to the complainant, provide that information to the complainant in writing; or

(ii)has not so consented, notify the complainant in writing of that fact.
Response to notice of complaint: persistent re-posting of same or substantially the same material

9. (1) This paragraph applies where—

(a)a notice of complaint from the same complainant has been received by the operator in relation to a relevant statement on two or more previous occasions;

(b)on each occasion the statement has been removed from the website in accordance with this Schedule;

(c)the operator receives a further notice of complaint in relation to the statement; and

(d)the complainant informs the operator at the same time as sending the notice of complaint that the complainant has sent a notice of complaint to the operator on two or more previous occasions in relation to the statement.

(2) Where this paragraph applies paragraphs 2 to 8 do not apply and the operator must remove the statement from the locations on the website which were specified in the notice of complaint within 48 hours of receiving the notice of complaint.

(3) A statement is a relevant statement for the purposes of this paragraph if—

(a)the statement to which the notice of complaint relates conveys the same or substantially the same imputation as that to which each of the previous notices of complaint referred to in sub-paragraph (1)(a) relate;

(b)it was posted on the same website; and

(c)it was posted on that website by the same person.


EXPLANATORY NOTE

(This note is not part of the Regulations)

Section 5 of the Defamation Act 2013 (“the Act”) (c.26) provides a defence for the operator of a website where a defamation action is brought in respect of a statement posted on that website if it was not the operator who posted the statement. The defence can be defeated if the claimant can show that it was not possible for them to identify the person posting the statement, the claimant gave the operator a notice of complaint in relation to that statement and the operator did not respond to the notice of complaint in accordance with these regulations.

Regulation 1 makes provision in paragraph (3) about the calculation of the time limits which apply to actions which must be taken by the website operator. Its effect is to exclude from the calculation of the 48 hour period any time which occurs on a weekend or public holiday.

Regulation 2 sets out the information which must be contained in a notice of complaint in order for it to be valid. These requirements are additional to the requirements set out in section 5(6)(a) to (c) of the Act.

Regulation 3 and the Schedule provide for the steps which a website operator must take on receiving a valid notice of complaint in order to benefit from the defence provided by section 5 of the Act.

Regulation 4 applies where a website operator receives a notice alleging that a statement on the operator’s website is defamatory but that notice does not comply with section 5(6) of the Act and these regulations. In such a case these provisions provide that, in order to benefit from the defence in section 5 of the Act, the website operator must notify the person making the complaint of the requirements of the Act and these regulations.

Regulation 5 gives the court discretion to treat any action which was taken outside the time required by regulation 4 and the Schedule to be treated as though it was taken within that time limit. The court may exercise this discretion if it considers it in the interests of justice to do so.