The Defamation Act 2013 came into force at the start of the year. Its aim is to update libel laws to provide a balance between the protection of free speech and allowing those that have been defamed to protect their reputation. It also addresses so called “libel tourism”.  Surely this is a law only of real interest to celebrities I hear you ask?? Not at all. The Act contains a new defence at section 5 (cleverly nicknamed the Section 5 Defence) for website operators hosting user generated content where the action is brought in respect of a statement posted on the website.

This may be of interest to you if you host a section for user comments on your website. If you receive a complaint that a user’s comment is defamatory you could invoke the section 5 defence providing you have complied with certain provisions (detailed later). Alternatively, you may wish to make a complaint to a website that one of its users has posted a defamatory comment about you.

Prior to the 2013 Act, the defamation laws were ambiguous at best regarding certain aspects of online defamation. The simple reason was that the laws had been written predominantly with physical publication of documents in mind. Judges were having to apply outdated laws to the ever changing online landscape. There was general confusion as to whether a website operator could be liable for users’ comments, what circumstances could make them liable, whether moderation of those comments made a difference etc.

Section 5 deals directly with this issue. It is a defence for a website operator to show that it was not the poster of the allegedly defamatory statement. The defence can be defeated, however, if a) it is not possible for the complainant to identify the person who posted the statement, and b) the complainant gave the website operator a notice of complaint in relation to the statement, and c) the website operator failed to respond to the notice of complaint in accordance with any provision contained in the regulations.

The Ministry of Justice has now issued a useful Guidance note in relation to Section 5. The Guidance sets out what information the notice of complaint should contain, the time frames for website operators to deal with any notice received (only 48 hours) and what the website operator should do depending upon the various possible responses from the poster (such as whether the poster consents or not to the removal of the statement from the website).

The Guidance is a useful toolkit to follow should you wish to make a complaint or in the event that you host a website and receive such a notice. Providing the procedure is followed, the website operator will be able to rely upon the Section 5 defence. Of course, the complainant will still be able to pursue a claim for defamation against the original poster if it chooses to do so. Finally, the Act also provides welcome confirmation that the Section 5 defence is not defeated only because the website operator moderates statements posted by others.