Previous Page
JULY 2014
• What else is new for website operators? Online publishers no longer have to pre- moderate reader comments.
Readers cannot use the law to get non- defamatory posts taken down, simply because they don’t like them
Libel actions against web-only publications are likely to fail if the page did not attract much traffic
The law introduces a new process aimed at helping potential victims of defamation online, by resolving the dispute directly with the person who has posted the statement. This has potentially damaging implications for web operators who are unable to identify or authenticate users.
Website operators do not have to remove defamatory posts as soon as they receive a complaint – but they must have adequate processes in place to respond to complainants quickly, effectively and transparently.
A new Section 5 defence has been introduced. This ‘Report and Remove’ system is designed to help people who feel they have been defamed.
• How does the Section 5 defence work? To use the Section 5 defence, online publishers must tell the complainant to put their complaint in writing and include:
• Full name and email address • Details of the offending post • Why it defames them
• A statement saying that they do not have the individual poster’s details and therefore cannot contact them directly
Web operators can keep the post online until they receive a complainant’s written response, and can reject it if the required information has not been fully provided within 48 hours.
Upon receipt of all the information, the online publisher must contact the poster within 48 hours and provide full details of the complaint – asking them to confirm in writing if they want the post removed.
If the poster opts for content to remain online, the operator must request written consent to release their contact details to the complainant.
Janrain Maintaining compliance and engagement: a simple guide
In an era where digital and social platforms are making it easier for consumers to publish their views, powerful and advanced communications channels can potentially expose website operators, brands and publishers to the risk of online defamation. The Defamation Act 2013 gives publishers renewed protection – helping to facilitate user engagement and encouraging freedom of speech. It’s good news for website operators – but it doesn’t completely eradicate the risks.
To maintain brand engagement, build interactive communities and – most importantly – remain compliant with emerging regulations, website operators must ensure that their systems and processes provide adequate protection. In light of the new UK Defamation Act, Cleland Thom, one of the UK’s leading Internet law consultants, recommends that online publishers should:
• Have a robust, written complaints policy
• Designate and train staff to deal with complaints correctly, and within the new timescales. Timing is critical
• Acknowledge and deal with complaints promptly – preferably by email – to comply with the 48-hour deadline
• Give website users clear instructions on how to complain, and who to. This may mean providing a Report Abuse button
• Update their website terms and conditions to reflect the new arrangements • Register users before they are allowed to make a post – if providing message boards • Registration should include taking their names and contact details
• Users should be told, before they accept site terms and conditions, that the operator may divulge their details if they post anything defamatory
• Keep proper written records of complaints, with the dates and times of actions taken. Source: Using the Defamation Act 2013, Cleland Thom
If the operator cannot contact the poster, they must remove the post within 48 hours of receiving the complaint.
• Anything else of interest in the Act? Qualified privilege has been extended to cover peer-reviewed statements in scientific, academic and B2B journals, as well as website operators publishing materials considered to be in the public interest.
The Reynolds defence, designed to protect serious investigative journalists acting in good faith on matters in ‘the public interest’, has been scrapped.
The single publication rule – the one-year time limit for starting online libel actions – now begins when an article is first published online. It does not re-start every time an article is viewed or downloaded – as had previously been the case. However, the new guidelines only protect the original publisher – it offers no protection to third parties who republish defamatory content elsewhere.
Justification has been abolished and replaced with a new defence: Truth.
The Fair Comment defence has been renamed Honest Opinion.
The Act only applies to content that was published after the legislation came into force; with claimants having a 12-month deadline to start a libel procedure, publishers facing defamation claims for content published prior to the Act being introduced will need to rely on old libel law.
For further information visit: www.legislation. gov.uk/ukpga/2013/26/pdfs/ukpga_20130026_ en.pdf
25