There are several, overlapping, defences available to a web host that may act as a defence against a claim for libel. They are:
Innocent dissemination
Section 1, Defamation Act 1996
Section 10, Defamation Act 2013
Section 5, Defamation Act 2013
E-commerce directive
Under section 1 of the Defamation Act 1996, a defendant is not liable for a statement if they:
were not the author, editor or publisher
took reasonable care in respect of publication
did not know and had no reason to know that D caused or contributed to the publication of a defamatory statement
“Author”, straightforwardly means the person who originated the statement.
An “editor” is someone who has editorial or equivalent responsibility for the content of the statement or the decision to publish it. This is likely to include an activity such as moderating comments pre-publication, but I do not think it would include moderating comments in response to complaints (eg of abuse).
The word “publisher”, in the context of the 1996 Act (and section 10 of the Defamation Act 2013, see below) does not mean simply someone who publishes (in the common law sense) a statement. It means a person whose business is issuing material to the public (or a section of the public) and who issues material containing the statement in the course of that business.
The key word here is “issue”. For example, a bookseller is not a “publisher” for the purposes of this definition because they merely distribute books, rather than issuing them to the public.
In McGrath v Dawkins [2012] EWHC B3, the court rules that Amazon was not a “commercial publisher” of its website, because it the website was not its main source of revenue which comes from selling books etc. That seems to me to be rather generous to Amazon. The court also held that, despite the fact that Amazon did look at reviews and comments in response to complaints, it was not an “editor”.
Like section 1 of the 1996 Act, Section 10 of the 2013 Act is a generic defence to defamation that is not restricted to internet publication, but it will be generally useful for internet publishers.
Where a claim is for defamation is brought against someone who is not the author, editor or publisher (in the sense of the 1996 Act discussed above), the court has no jurisdiction to hear it unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.
In practice this means that a claimant suing someone who was not an author, editor or publisher, would almost certainly have to produce evidence that it was “not reasonably practicable” to sue that actual author etc. There is, as yet, no case law on what this means, so there are several points that are not clear.
In the first place, it is possible to sue someone without knowing their identity. In Bloomsbury Publishing Group v News Group Newspapers[15] the court allowed a claim to proceed where instead of naming the defendants, they were described as:
the person or persons who have offered the publishers of the Sun, the Daily Mail, and the Daily Mirror newspapers a copy of the book ’Harry Potter and the order of the Phoenix’ by JKRowling or any part thereof and the person or persons who has or have physical possession of a copy of the said book or any part thereof without the consent of the claimants.
This approach has been used on a number of other occasions and has been endorsed by the Supreme Court.[16] Anonymity does not make starting a claim very much more difficult.
Serving the claim on the defendant might require a little more effort than usual. If it is clear that they will read something (eg twitter, facebook, a blog post) then a court might permit service via tweet or post. If their email address is available, then service by email could be used. A web host could be required to supply that email address by a Norwich Pharmacal Order.
It is quite possible that section 10 requires not that starting a claim be reasonably practicable, but the claim itself. Some lawyers have suggested that suing someone in the United States, where English defamation judgments are hard to enforce, might not be “reasonably practicable” because the claim itself would be pointless. This is not the literal meaning of section 10, but it is entirely possible that the courts will decide to interpret it that way.
What this means is that identity is not the end of the story. But if you are threatened over defamatory postings where you are not the “author, editor or publisher” and the real author etc is easily identifiable, you have a good argument that you cannot be sued.
This is a defence available to “operators of websites” for statements posted on their website, provided they did not post the statement themselves – and presumably where it was posted on the their behalf either. A claimant may be able to defeat the defence, but only if they are able to prove three things:
it was not possible for them to identify the person who posted the statement
they gave a “notice of complaint” to the operator
the operator failed to respond to the notice correctly
Section 5 goes on to say that it is only possible to “identify” the poster if the claimant has sufficient information to bring proceedings against them. See my remarks on section 10 for difficulties with that condition.
The idea of section 5 is to try to put the claimant and the poster of the statement in direct contact and leave the website operator out of the dispute. Roughly speaking, having received a complaint, if the operator is unable to contact the poster, or the poster does not respond with a plausible name and address, or if they ask for the statement to be taken down, then the operator must take the statement down, otherwise the operator need only pass on the poster’s contact details and may then leave the statement up without worrying about it.
In practice, section 5 is quite involved. Hopefully the following summary will help.
The process starts when someone (the “complainant”) complains to the operator that a statement on their website is defamatory of the complainant. In order to constitute a proper “notice of complaint” the complainant must send a notice containing all the following information:
their name and electronic mail address
the statement
the meaning attributed to it
an explanation of why it is defamatory
where it may be found on the website
which aspects of the statement the complainant believes are:
factually inaccurate; or
opinions not supported by fact
a confirmation that the complainant does not have sufficient information
whether the complainant consents to the operator providing the poster wit
Some of this is potentially useful. In my experience many complaints of defamation do not make clear what exactly is wrong with a statement, or in some cases fail to identity a specific statement at all. Forcing the complainant to set this out in a notice of complaint is useful.
An oddity about the notice is that the complainant has to confirm that they do not have sufficient information to bring proceedings, but the test in section 5 is that it is not possible for them to identify the poster. As discussed under the section 10 offence above, these are really quite different situations.
Even if the complainant fails to set out all the information they are supposed to, the operator must still respond within 48 hours of receiving the notice from the complainant, informing the complainant that:
the notice does not comply with the requirements set out in section 5(6)(a) to (c) of the Act and regulation 2; and
what those requirements are
Another oddity here is that the operator does not have to say what is wrong with the notice. As far as I can tell, a standard form response to any defective notice of complaint is fine. In practice it would almost certainly be better to tell the complainant where you think they have gone wrong.
If a valid notice of complaint is received, the next step seems to be designed to check whether the poster is a repeat offender. If
that complainant has sent two or more previous notices of complaint about a statement that:
was posted on the same website
by the same person
and conveys the same or substantially the same imputation as each of the previous notices
on each of those occasions the statement was removed from the website in accordance with the regulations (which would not be the case if the poster had formally resisted removal, or the statement was removed for some other reason)
the complainant informs the operator, at the same time as sending the notice of complaint (you would expect, in the same letter or email) that the complainant has sent a notice of complaint to the operator on two or more previous occasions in relation to the statement
If all these conditions are met, the operator must remove the statement within 48 hours of receiving the notice of complaint and inform the complainant that they have done so.
Normally, a notice of complaint will not relate to earlier complaints. In that case, the operator must decide whether they are able to contact the poster personally. If they are not, then they must, within 48 hours of receiving the notice, remove the statement and send an acknowledgement to the complainant informing them that they have removed the statement.
“Able to contact” means able to contact electronically. If the poster is sitting in the same office as the operator, but the operator does not have an email address etc for them, then they are not “able to contact” them and must remove the statement.
If the operator is able to contact the poster, they must then, within 48 hours, send an acknowledgement to the complainant informing them that the operator is contacting the poster and also send the poster:
a copy of the notice of complaint (with the complainant’s name and address removed if they have not consented to the supply of that information to the poster)
notification that the statement may be removed unless:
the operator receives a response from the poster by midnight on the 5th day after the day on which the notification was sent; and
the poster’s response contains:
the poster’s full name
the postal address of the poster’s home or business
whether the poster consents to the operator providing the previous two items of information to the complainant
notification that the poster’s name and address will not be released to the complainant unless the poster consents or the operator is ordered to do so by a court
If, by midnight on the 5th day, the poster has not responded, or if they have responded but their response failed to contain the requirement information and indications as to whether the the poster consents to its release, of if they have responded correctly and asked for the statement to be removed, the operator must, within 48 hours, remove the statement from the website and send a notice to the complainant indicating that they have done so.
If a reasonable operator would consider the name or postal address in the poster’s response to be “obviously false”, then the poster’s response is to be treated as if it did not contain that information.
If the poster responds in time, with all the required information, and states that they wish the statement to remain, then the operator does not have to remove it. However they must, within 48 hours, inform the complainant that the poster does not wish the statement to be removed and that it has not been removed. If the poster consented to their name or address being provided to the complainant, that must be supplied at the same time. If the poster did not consent, the complainant must be notified in writing of that fact.
The e-commerce directive creates a general defence for those who are only “hosting” information, against almost all forms of liability for that information including defamation, but also other things such as copyright. The main exception is liability under the data protection directive (and hence the Data Protection Act 1998).
The defence applies to someone hosting information if:
they are an Information Society Service
they are innocent, in that:
they had no no actual knowledge of the unlawful information or
they acted expeditiously to remove or disable access once they had actual knowledge
Furthermore a hosting provider has no obligation to search out potential libels. For example in Metropolitan International Schools Ltd, Google could not be required to prevent future defamatory snippets appearing as a result of any search (although this decision would probably have been reached even without the benefit of the directive).
The defence does not prevent an injunction being made against a hosting provider.
The claimant needs to be identifiable, but it is enough if some readers are able to identify the claimant from the information given. They do not have to be named directly.
“the man who lives in that house is a paedophile”[17]
“X is illegitimate”[18]
Hulton v Jones is a case of (probably) “accidental” defamation, which extends potential liability but it is unclear how far.
O’Shea v MGN a case where someone looked like the person photographed - creates considerable difficulties if the idea were followed widely.
class libel - although it is possible to libel a class of people a claimant has to prove that they individually were intended as the target because the courts accept that people make loose and wide generalisations
“all lawyers are thieves” would not permit any lawyer to sue[19]
Knupffer v London Express Newspaper was a case where the class of people (members of an organisation) was very small, but the claim still failed for lack of proof that a particular individual was intended.
Practical examples that might come up with a site like www.whatdotheyknow.com: officers of a public body are criticised either by title “the Freedom of Information Officer”, or by implication “whoever was handling this case was incompetent”.
The House of Lords held in Derbyshire County Council v Times Newspapers that an organ of local or central government may not sue for defamation. This probably applies to other public bodies, but how far the line is drawn is unclear. Happily the principle applies to political parties as well[20] but we do not have the wonderful US rule which makes it very difficult for public figures to sue.
Something defamatory of a council may easily imply that someone in the council is defamed too. The fact that someone is a public servant may sue if they are defamed even if the defamation is linked to their carrying out public functions.[21]
Corporations in general do have reputations and can sue for libel. This applies even to very large and powerful corporations[22] although if they are unable to show any trading loss their damages will be kept in “tight bounds”.[23]
Must be to someone other than the claimant and/or defendant (so insulting someone in an email sent only to them is not defamatory). Two authorities are relevant to us:
Byrne v Deane - allowing something to remain that you could remove may constitute publication
Godfrey v Demon Internet - for example leaving defamatory posts you have been informed about on a USENET server would constitute publication.
Does linking to material constitute publication? There is (as yet) no direct authority on this point in English law. Some old cases could give us a clue:
Hird v Wood - the defendant sat on a stool near a placard which had been put up on the roadway containing defamatory matter. He remained there for a long time smoking a pipe and he continually pointed at the placard with his finger and thereby attracted to it the attention of all who passed by. HELD: publication.
Smith v Wood - the defendant has a copy of a libellous caricature print. A witness heard that the defendant had a copy, went to visit him and asked to see it. The defendant produced it to him and pointed out the figure of the plaintiff. HELD: no sufficient evidence of publication.
Lawrence v Newberry - letter published in a newspaper referred its readers to a speech in the House of Lords which was alleged to contain defamatory matter. HELD: the letter published the defamatory matter in the speech.
It is hard to draw any firm conclusions. It seems to me that a link to something defamatory with text saying “here is a defamation” would certainly be publication.
[sec:applibelvslander] [display]Appendix 1pt
[16] Secretary of State for Environment, Food and Rural Affairs [2009] UKSC 11
[17] Channel 7 Sydney v Parras [2002] NSWCA
[18] Cassidy v Daily Mirror
[19] Eastwood v Holmes
[20] Goldsmith v Bhoyrul [1998] Q.B. 459
[21] McLaughlin v London Borough of Lambeth [2010] EWHC 2726
[22] MacDonald’s Corporation v Steel (No. 4), the Independent, May 10, 1999
[23] Jameel v Wall Street Journal Europe SPRL (No.3), [2006] UKHL 44; [2007] 1 A.C. 359