Draft Defamation Act Regulations for Website Operators

Implementation of the new provisions for website operators under the Defamation Act 2013 has come a step closer, with the Ministry of Justice seeking comments on draft implementing Regulations. INFORRM has a summary of the process, with a helpful flowchart. Janet and UCISA have sent a joint response pointing out two frequent situations, and one less frequent, that the draft Regulations do not handle well:

• Where multiple copies of a complaint are sent (it’s common for complainants to try many different e-mail addresses in the hope that one will work);
• Where the notification to the author is returned as undeliverable, possibly several days after sending;
• Where the author reacts to a complaint by removing the post, rather than waiting for the website operator to do it.

Our comments from the last round of consultation do seem to have been taken into account in the new draft, so I’m hopeful that these will be too.

A number of commentators have expressed disappointment that the new regulations are not a "revolution" in handling alleged defamation on websites, but I think their expectations were set too high. The existing notice-and-takedown process will still exist - indeed it’s required by European law – and I expect it to continue to be used for the majority of complaints. The new process will help universities and colleges, who have a legal duty to protect lawful free speech by their members and guests. At the moment, if they receive a complaint about an article that appears to be subject to that duty they have to try to predict how a court will rule on the complaint and risk legal penalties if their prediction is wrong. Under the new process so long as the university or college is able to contact the author who cooperates by providing their postal contact details within five days (these can be kept private, if desired, unless a court orders their disclosure), then the article can continue to be published until a court decides whether to order its removal. The new process does require more 'paper'work, since websites using it will need to track complaints and keep records of removed content but that may be a reasonable trade-off for the increased legal certainty it should provide.