The Defamation Act 2013, and the accompanying Defamation (Operators of Websites) Regulations 2013, have both now been in force for around eighteen months. Yet the operation and effect of the regulations still seem to be imperfectly understood, causing considerable confusion for complainants in relation to website postings, and exposing website operators to the serious consequences of failure to comply with the regulations' provisions.

The relevance of the regulations stems from section 5 of the 2013 Defamation Act. This section provides a defence for website operators in relation to posts on their sites which have been made by third parties. A website operator can be anything from the operator of a social media platform, to a business which runs a blog or forum on its website where comments from members of the public are invited. The need for a new statutory defence for operators in this category stems from a line of English court authorities starting with the seminal case of Godfrey v Demon Internet [1999] EWHC QB 240 and leading more recently to the Court of Appeal decision in Tamiz v Google [2013] EWCA Civ 68. The effect of these decisions was (simply put) to provide that once a website operator was put on notice of defamatory content on their site, they became a de facto publisher of that content, and could be sued on it by the victim of the posting in question.

Section 5 is capable of providing a complete defence in those circumstances, dramatically reducing the extent of a website operators potential exposure, provided that certain conditions are fulfilled. Thus, for example, where the poster can be identified, the website operator cannot be liable, and the complainant must pursue the poster directly. Unfortunately, of course, most defamatory posts are made anonymously. In those circumstances all is nevertheless not lost for the website operator. Firstly, they cannot be liable until the posting has been brought to their attention in the manner specified in the regulations, including information about how it is said to be defamatory. Thereafter, if the website operator has a means of communicating with the poster, they must relay the complaint to that individual, and pass back any response. Finally, if that response does not enable the complainant to pursue their claim directly against the poster, or where the operator has no contact details for an anonymous poster, the website operator must take down the posting.

All of these steps, the way in which they are to be performed, and the applicable time-scales for doing so, are spelt out in detail within the regulations. As such there is really no excuse for any website operator to fail to follow the procedures specified, in order to avail themselves of the section 5 defence. Equally, though, for as long as the procedures remain poorly understood, complainants still have a chance to affix those operators with liability, by adopting the procedures for complainants set out in the regulations and then pursuing their claim against the operator when it fails to keep to the required procedures and time-scales.

On both sides, therefore, there is a good deal at stake for a party which has not properly understand what is expected from them under the regulations. As is generally the case with defamation, this is a complex area, and one in which it is well worth taking specialist advice.