The new Defamation Act 2013 came into force on 1 January 2014 and introduces some significant changes as it attempts to shift the balance back in favour of free speech in England and Wales.The new Act is looking to protect businesses operating online. This is being achieved by three key measures:
- Operators of Websites Defence
One of the most substantial changes is the introduction of the "Operators of Websites" defence. The Act now provides a defence to a defamation claim where the operator of the website can show that it did not post the defamatory material. In order to use the defence, the operator must comply with certain statutory procedures which in simple terms require:
- a complainant to provide the website operator with a Notice of Complaint providing all the relevant information in relation to the published material which the complainant thinks is defamatory;
- the operator must contact the person who posted the statement complained of within 48 hours of receipt of the Notice of Complaint;
- the operator must inform the complainant within 48 hours of receiving the Notice of Complaint that the operator has received it and that the operator has notified the poster;
- the poster must respond to the operator before the fifth day after the day on which the Notice of Complaint was sent to the poster; and
- if the poster fails to respond, the operator must remove the statement.
To maximise this protection operators are encouraged to set up and publicise a designated email address for this purpose and to provide an online form for complainants.
- Single publication rule
The Act introduces significant reform in the way of the single publication rule which prevents repeated claims against a publisher.
The previous multiple publication rule meant that each new hit on a webpage was regarded as a new publication and therefore the complainant's cause of action was continually renewed as long as the material was online.
Under the new rule, the date of the first publication will be regarded as the publication date as long as subsequent publications are "substantially the same" regardless of how many times the material is re-published. This is important because a defamation claim must be brought within one year of first publication (though the court retains a discretion to extend this period).
Businesses should therefore carefully consider when material was first published when dealing with a complaint. They should also still consider removing old statements that may be defamatory because even if there is little legal risk, it may still cause brand damage.
- Serious Harm requirement for defamatory action
There is a new higher threshold for complainants bringing a defamation claim in order to reduce the number of frivolous libel claims and wasted court time.
There are now two standards, one for individuals and one for organisations. The standards are:
- Individuals = “serious harm to the reputation of the claimant"; and
- Organisations = "caused or is likely to cause the body serious financial loss".
There has already been a lot of debate on how an organisation will prove the “serious” financial loss and the degree of “likelihood” required if future loss is expected. Some commentators have even stated that an impact such as a drop in share price will be required. Those facing a defamation claim could therefore insist on seeing evidence of serious financial loss before conceding any claims.
For further reading on this topic, please see: • Complaints about defamatory material posted on websites: Guidance on Section 5 of the Defamation Act 2013 and Regulation • Guidance on Section 5 of the Defamation Act 2013 and Regulations: Frequently Asked Questions Both publications can be found on the Government's website.