With the ever-increasing amount of user generated content, intermediaries have to deal with an increasing number of defamation complaints. This article explains some key defences available to intermediaries, including why old posts and posts by identifiable posters get greater free-speech protection.
The centre of gravity between free speech and the protection of reputation in relation to user generated content (UGC) moved in favour of free speech on 1 January 2014. This followed the coming into force of the Defamation Act 2013, which gave an additional defence under English law for intermediaries such as operators of discussion boards or social media platforms. Previously, it was not uncommon for an intermediary to simply take down a defamatory post upon receipt of a libel complaint ('notice and takedown').
The 2013 Act was designed to reduce the chilling effect of defamation law on free speech. And it has. Now, a defamation claimant has a series of hurdles to overcome, some of which may be insurmountable in certain circumstances.
To put English law in context, US law is generally far more protective of free speech as a result of the "section 230" safeharbour for intermediaries hosting pure UGC. Irish defamation law is generally more claimant-friendly than English law. Other countries, say in many civil law jurisdictions, may also be more pro-claimant than England.
The one-year limitation period and the single publication rule
A claimant must prove that there has been "publication" of the statement complained of. This means that a third party has actually read the statement in England or Wales. There is no automatic presumption that information merely available on the internet has been read in this jurisdiction.
Since the limitation period for defamation is one year from the date of publication, it may be too late for a claimant to complain about online posts which are more than a year old. Furthermore, even if old posts have been read more recently, they may also be statute barred by the single publication rule under section 8 of the 2013 Act. In summary, if the same post was published more than a year ago and has remained online in the same place and manner, then even if a person reads it again more recently, the claimant will generally be too late to sue. Whilst this is a simplification of section 8, the take-home message is that a huge amount of potentially defamatory UGC which was potentially actionable indefinitely is now out of reach in England. Of course, if a savvy claimant can frame his or her claim under privacy or data protection law (which have a 6-year limitation period), then limitation and the single publication law for defamation, may not help the intermediary.
Where the complainant can sue the poster - sections 5 and 10
Intermediaries do not generally have to take down a defamatory post where the complainant knows who the poster is. Under section 10 of the 2013 Act, the English court will refuse jurisdiction to hear a defamation claim against "a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher". Similarly, under section 5(3)(a) and (4) of the 2013 Act, where the claimant has "sufficient information to bring proceedings against the [poster]" and the website operator did not post or edit the statement complained of, the operator will generally have a defence. Therefore, if the poster uses their real name and/or makes their email address or other contact details available or if the claimant otherwise knows who the poster is (e.g. a particular disgruntled customer), then the intermediary does not have to take down the post. The result of this is that, in such circumstances, a claimant will have to pursue the poster (who may have no money), rather than the intermediary.
Sections 5 and 10 only provide a defence to a defamation claim and do not apply to claims based on, for example, privacy, data protection or harassment.
Where the complainant cannot sue the poster – section 5
If a poster is anonymous, then the intermediary could potentially be liable. To try to have a post taken down on the grounds of defamation, a complainant should serve a Notice of Complaint on the website operator. This must include certain specified information including an explanation of why the post is defamatory of the complainant and a statement that the complainant does not have sufficient information about the poster to bring proceedings against them.
For the intermediary to have a defence under section 5, it must follow a strict and detailed procedure. In brief summary, if the website operator receives a Notice of Complaint, it must send this to the poster within 48 hours of receiving it and give the poster 5 days to respond. Unless the poster responds to the website operator by the deadline stating that he or she wants the post to remain up and giving his or her full name and postal address, the website operator must take down the post to retain the defence. Most posters will usually not want to provide their full name and contact details to the website operator in case these ultimately have to be provided to the complainant following a court order. In reality, therefore, where the poster is anonymous to the complainant, the post will often end up being taken down, either by the poster or the intermediary.
Serious harm for individuals and companies
A further swathe of UGC, which had previously been potentially actionable, has been neutralised by the 2013 Act. Under section 1, a statement is not defamatory of a company trading for profit unless the company establishes that the statement has caused or is likely to cause it serious financial loss. This can make defamation claims by companies extremely difficult in practice. Even if sales have reduced, proving that the reduction was caused by the statement complained of may sometimes be impossible.
For an individual claimant, he or she has to show that the statement complained of has caused or is likely to cause him or her serious harm to their reputation. Apart from the most serious allegations (for example that a person is a terrorist, murderer or paedophile), the courts are likely to expect a claimant to prove, with evidence, the alleged serious harm to reputation and relevant causation. If a claimant is unable to do this, then their defamation claim will fail.
Hosting exemption and section 1 Defamation Act 1996
Moreover, in the context of UGC, an intermediary may also be able to assert that a failure to prove serious harm means that the intermediary does not have relevant awareness that the statement complained of is (i) defamatory and/or (ii) unlawful. If an intermediary does not have knowledge or reason to believe that a statement is defamatory, it may have a defence under section 1 of the Defamation Act 1996 (provided that it was not the author, editor or publisher of the statement and took reasonable care). The intermediary may also likely be able to rely on the EU hosting exemption as not having relevant knowledge of unlawful information. Without relevant knowledge, there may be no reason to take down a post. Although there are uncertainties with these defences, as they are still being interpreted by the courts, they add a further layer of protection for intermediaries and UGC.
In summary, intermediaries faced with a defamation claim over UGC may be able to dispose of it efficiently in one or more of the following ways:
- if the claimant knows the identity of the poster and can sue him or her directly, the intermediary may have a section 5 defence and, therefore, may not have to take down the post;
- if the post complained of is more than one year old, a defamation claim may be statute barred; if so, the intermediary may not have to remove the post;
- if the post is not defamatory, then the claim should fail and/or the intermediary may not have relevant knowledge requiring it to take down the post.
These are only a few potential scenarios and every case needs to be decided on its own facts in this developing area of law. Furthermore, claims may be based on other causes of action or the laws in other jurisdictions which may be more or less favourable.
Claimants, on the other hand, should try to make sure that their complaints are sufficiently precise and explain why the post is harmful. If they delay too long, it may be too late to bring a defamation claim. If they know the identity of the poster, then writing to the intermediary may not be effective. However, for anonymous posts under English law, serving a valid Notice of Complaint may result in the post being taken down for one reason or another.