Defamation Act 2013

[Legal Beagles]

The Defamation Act 2013 will come into force on 1st January 2014 Minister for Justice Lord McNally announced in the House of Lords yesterday, read*his speech here. This will mean that England and Wales will have the new libel law we have all called for*over the last four years. Information: www.libelreform.org

More...

[kathmorgan12]

Re: Defamation Act 2013

If you didn't want to disclose your contact details to the complainant or the website operator, then your post would be removed, and that would be the end of the matter.

Re: Defamation Act 2013

http://www.bbc.co.uk/news/uk-25551640#story_continues_2

[EXC]

Re: Defamation Act 2013

But these new Regulations seem to remove the need for any Moderation - if the Posters are now fully responsible in law for what they say in their own posts, and my defence is that I as the Operator didn't post it, then presumably I do not need to be protecting myself by continuing with this Moderation process, because any legal action taken will be now directed specifically at the Poster and not me as the Operator.

Am I correct?

I don't think so. Although following the new regulations might put more onus on the author of the comments the operator still has some potential liability. But I'm sure Amethyst can advise.

[The Prisoner]

Re: Defamation Act 2013

Thanks for your swift reply, CleverClogs.

With regard to my comment about being able to identify Posters:

Unless you have in place some means to establish that a member has not used a pseudonym - such as requiring them to submit a scan of their driver's licence as well as a recent photo of themselves - you cannot be certain that the name they have supplied is that they use from day to day.

Owing to the nature of this professional body of people (many of whom are known to one another personally, and others by reputation), along with the detailed information they must provide on the Registration form and the vetting and peer review processes carried out before they are either admitted or rejected, it can be guaranteed that they are who they say they are.

With regard to the Terms & Conditions:

Do you really suppose that will prevent leaks?

No, and it doesn't - but thankfully such episodes have been very few and far between in the decade I've operated my board. Nonetheless, I wanted to get a sense of what the procedure might be if/when it does happen again after 1st January 2014.

With regard to my scenario 2 (how can a Complainant complain if they do not have access to the board and can't see what's been written):

Tell them that, until and unless they can complain in the correct form or, at least, identify the post and what they supposed was defamatory, they can get bent.

Well, that's clear enough!

With regard to my further comment about scenario 2 (can I legally reject a complaint if the Complainant can't properly put the complaint in context because they don't have access to the board):

If neither a company nor a person can be identified, then how could a statement be defamatory?

But my scenario has a member verbally telling an outside person that something derogatory has been written about them within the confines of the bulletin board. The outside person may not have been given all the details of what's been written (or who wrote it), but they have been told (or they can certainly infer) that they are identified and associated with allegedly derogatory comments about them, so therefore, because the post has been put in front of third parties (the other members), surely it is potentially defamatory? I say "potentially" because whether it is or not would ultimately need to be tested by a court - but the process of potentially defaming that outside person has begun with the posting of the comment. Just because they can't see it themselves doesn't mean it's not defamatory. I believe I'd be right in saying that the crucial point in the eyes of the law is the effect the post may have had on third parties' opinions of the Complainant.

(I'm sorry if I'm not explaining myself very well, or being rather long-winded, but as I say I'm no legal expert.)

With regard to my Moderation comment:

In my inexpert opinion, no, as that would reverse the decision in the cases of Godfrey v Demon Internet; if the post is still published after a proper complaint has been received, the operator of the system would be liable for its continued publication. In Godfrey, the claimant did not allege that Demon or any member of its staff had posted the contumelious and defamatory statements - the first newsgroup article was posted by someone in Thailand, whilst the second article was essentially a reposting by a Demon customer of that first article - but, that by not removing the posts from news.demon.co.uk and by not issuing a cancel request for the second article, Demon was liable for the continued publication / propagation of the statements.

But I would be following these new Regulations, which gives clear guidance on what to do if a Notice of Complaint is received, i.e. there are a couple of scenarios where the post would be removed within a given time frame (the Poster gives permission for it to be taken down, or does not respond within five working days), or if it is left up it will be because the Poster refuses permission to have it taken down but has given permission for their contact details to be passed to the Complainant, in which case they can thrash it out between them; or the poster has given me their contact info but refuses permission for it to be passed on AND refused permission for the post to be taken down, in which case (as I understand it) the Complainant has to get a court order compelling me to pass on the contact info that the Poster has provided to me - and again, if that comes to pass, they thrash it out between them. I'm not at all familiar with Godfrey v Demon Internet, but under the new Regulations I don't see how I could be held accountable for keeping the post up, when I'm only following the Regulations that allow a certain time frame for these to-and-fro communications to take place before the situation is resolved one way or the other. I would not keep a post up after the Regulations have been followed and the end result was that the post had to be removed.

In reality, if ever such a Notice of Complaint does arrive in my Inbox, and I follow the procedures and get in touch with the Poster, the chances are that the Poster will take fright and either remove their post themselves, or give me permission to remove it, no matter whether they believe their post to be truthful and factual - the prospect of being tied up for months while being sued for defamation, even if in the end they're found not guilty, would be enough to put off all but the most determined of Posters.

If there are any further views on this subject out there, I'd be very grateful for them.

Thank you.

Re: Defamation Act 2013

But my bulletin board is private - in the sense that only registered users can view any of its contents, including its Member List - although I've been given to understand that any allegedly defamatory comment posted there is still considered to be in the "public domain" in the eyes of the law because it's been seen by "third parties", i.e. the other users of the board. All our members are registered under their real names, so identifying a Poster is not difficult for me as the Operator or for other members with access to the board.

Unless you have in place some means to establish that a member has not used a pseudonym - such as requiring them to submit a scan of their driver's licence as well as a recent photo of themselves - you cannot be certain that the name they have supplied is that they use from day to day.

My board has Terms & Conditions that prohibit the dissemination of the board's contents to outside persons or entities by any means,

Do you really suppose that will prevent leaks?

2) A verbal discussion has taken place, with no Poster's name mentioned, but the Complainant gets a sense of what's been written and then contacts the board Administrators in a state of high dudgeon to insist that whatever's been written about them or their company is removed. In this case, I'm unsure how I should proceed - the Complainant is only reacting to "hearsay", and yet they cannot make a proper Notice of Complaint because they do not have access to the posts, I cannot give them access (nor would I want to) without breaking the Terms & Conditions of the board, and therefore they cannot rebut the alleged defamatory comments in the way the Regulations say they should be able to.

Tell them that, until and unless they can complain in the correct form or, at least, identify the post and what they supposed was defamatory, they can get bent.

In the second scenario, do I therefore have a legal defence under these Regulations to reject their Notice of Complaint on the grounds that it is not valid? Or any other defence?

If neither a company nor a person can be identified, then how could a statement be defamatory?

But these new Regulations seem to remove the need for any Moderation - if the Posters are now fully responsible in law for what they say in their own posts, and my defence is that I as the Operator didn't post it, then presumably I do not need to be protecting myself by continuing with this Moderation process, because any legal action taken will be now directed specifically at the Poster and not me as the Operator.

Am I correct?

In my inexpert opinion, no, as that would reverse the decision in the cases of Godfrey v Demon Internet; if the post is still published after a proper complaint has been received, the operator of the system would be liable for its continued publication. In Godfrey, the claimant did not allege that Demon or any member of its staff had posted the contumelious and defamatory statements - the first newsgroup article was posted by someone in Thailand, whilst the second article was essentially a reposting by a Demon customer of that first article - but, that by not removing the posts from news.demon.co.uk and by not issuing a cancel request for the second article, Demon was liable for the continued publication / propagation of the statements.

[The Prisoner]

Re: Defamation Act 2013

Hello everyone.

I've read through this topic (several times) with great interest, as I operate a private bulletin board for a group of professional people working in a particular field. I'm in no way a legal person, so I have some questions regarding the Regulations and how they might be applied in our case and I'd be very grateful for some guidance if possible.

The Regulations seem to make a good job of covering Operators of bulletin boards that are accessible to the general public, and where Posters are all-but anonymous, using pseudonyms to mask their real identities and perhaps even email addresses that they do not use anywhere else.

But my bulletin board is private - in the sense that only registered users can view any of its contents, including its Member List - although I've been given to understand that any allegedly defamatory comment posted there is still considered to be in the "public domain" in the eyes of the law because it's been seen by "third parties", i.e. the other users of the board. All our members are registered under their real names, so identifying a Poster is not difficult for me as the Operator or for other members with access to the board.

My board has Terms & Conditions that prohibit the dissemination of the board's contents to outside persons or entities by any means, but I'm wondering how these Regulations should be acted upon in a couple of potential situations that might occur:

1) A member "leaks" sensitive information to someone or a company outside our membership in the form of copied and pasted posts - in this case (and please correct me if I'm wrong), I think the Regulations are pretty clear on how I should act if I receive a Notice of Complaint, because the Complainant would be able to fulfill most if not all of the requirements in the Regulations regarding what information should be included in a valid Notice of Complaint.

But what if:

2) A verbal discussion has taken place, with no Poster's name mentioned, but the Complainant gets a sense of what's been written and then contacts the board Administrators in a state of high dudgeon to insist that whatever's been written about them or their company is removed. In this case, I'm unsure how I should proceed - the Complainant is only reacting to "heresay", and yet they cannot make a proper Notice of Complaint because they do not have access to the posts, I cannot give them access (nor would I want to) without breaking the Terms & Conditions of the board, and therefore they cannot rebut the alleged defamatory comments in the way the Regulations say they should be able to.

In the second scenario, do I therefore have a legal defence under these Regulations to reject their Notice of Complaint on the grounds that it is not valid? Or any other defence?

I also have a question about Moderating posts. Until now, I and my small team of Administrators have monitored all posts made (though we don't Moderate them before they're posted, but after), and we have excised portions of posts where we think the Poster might be on dangerous ground if the content of the post was "leaked" to the person or company mentioned in the post. This has been done on the basis that both I, as the Operator, and they, as the Poster, need to be protected as much as possible from any potential court actions.

But these new Regulations seem to remove the need for any Moderation - if the Posters are now fully responsible in law for what they say in their own posts, and my defence is that I as the Operator didn't post it, then presumably I do not need to be protecting myself by continuing with this Moderation process, because any legal action taken will be now directed specifically at the Poster and not me as the Operator.

Am I correct?

Thank you in advance for any replies to my queries.

And Merry Christmas!

Re: Defamation Act 2013

If I say something potentially libellous/slanderous/defamatory on here I'm depending on Site Team to kick it off and pm me with their reasons,,purely and simply because I don't yet understand the Act and I'm not prepared to lose all my goods and chattels in a court case just cos someone pissed me off enough for me to defame them,
So far as I have read,,the Act seems sensible..........

[charitynjw]

Re: Defamation Act 2013

To quote the famous (if unreported) "libel by parrot" case, the statement uttered by the trained macaw of "Councillor Wart has not washed today!" may be defamatory and it may have been libel rather slander to teach that to a parrot as it could be said to have been a biological form of a permanent recording, but if the phrase merely questioned the bathing habits of Councillor Wart, would that necessarily have been defamatory?

Little-known fact*

The bird was found guilty & incarcerated in a fridge for 30 days.
Upon release it apologised unreservedly, & respectfully asked "What the hell did the chicken say to deserve that!"

*Ok, it might not be true.

[FlamingParrot]

Re: Defamation Act 2013

Likewise, I already knew something of the "libel by parrot" case, which was cited by HHJ Salmon when he concluded that the alleged defamation by signal flags by Albert Haddock was, in anything, slander rather than libel and that the plaintiff (as the claimant was then called) would need to prove damages.

When I first read this, I thought you were going to refer to me! :scared:

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.

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

That's precisely the point, many people, especially the *bullies*, consider anything they don't like as defamatory, even when it's true. To some people, criticism = defamation. :mad2:

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).

As someone with a skin thinner than onion skin, I fully concur with the above. :sad:

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.

You obviously didn't check with Cloggy! msl: msl: msl:

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 fair 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.

Fixed.

How about a "statement by implication", whereby a spurned, would-be lover affixed a small number of stickers to the doors of a few rooms in student accommodation, declaring "I've not slept with Elspeth McShaggable."? (name changed)

The implication there - and the defamation arising therefore - was that all those persons whose door did not bear a sticker had enjoyed at least a moment of intimacy with the aforementioned wench, thereby impugning her chastity or fidelity.

(This was/is not a hypothetical case.)

[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.

[Tools]

Re: Defamation Act 2013

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

[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.

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?