January 1st 2014 heralded a new era for online protection as the Defamation Act 2013 officially come into force across the UK. It is the end product of a lengthy campaign for change to a law criticised as outdated, costly, and inherently unfair. A number of important alterations have been made, but here we focus on those provisions within the act that will affect social media platforms and their users.
Protection for the website operator
A new defence for the website operators who host user-generated content is arguably one of the most significant changes introduced. Under the new Act operators will not be liable if they can show that they did not ‘post’ the offending statement. In principle, this will therefore provide a certain level of protection to social media companies such as Twitter and Facebook when users post defamatory statements on their websites.
However, this still does not mean there is blanket immunity for social media operators to host defamatory material. The defence will be defeated if a claimant is able to show that it was not possible to identify the person who posted the statement, they notified the operator of the complaint and the operator failed to respond to the notice in the manner now prescribed by the new Regulations (the Defamation (Operators of Websites) Regulations 2013). The new media rules mean that the website operator must act within 48 hours of receiving a complaint.
Secondary publishers defended
Social media companies may also benefit from the new Act through the protection offered to secondary publishers. The court’s jurisdiction to hear actions brought against secondary publishers is now limited to situations where it is ‘not reasonably practicable’ for the claimant to pursue the primary publisher. This means that the social media users who post the offending material will be seen as the appropriate targets for a defamation claim as primary publishers and only in limited circumstances will it be acceptable to pursue the social media operator as a secondary publisher.
Court orders to remove material
The courts now also have the power, in the instance of a successful defamation action being brought by a claimant, to order operators of websites hosting defamatory statements to remove them. For social media operators, this will mean that even if they can avoid liability for defamation by virtue of the provisions explained above, they may nevertheless be ordered to remove any offending material.
The new Defamation Act is intended to create a more balanced legal framework and appears to offer greater protection to operators of websites such as Twitter and Facebook.
However, there is still debate and uncertainty as to how certain parts of the Act will work in practice, and a particular concern for social media operators will be unidentifiable posters of defamatory statements. The administrative burden of dealing with complaints in relation to such statements may be onerous, therefore it is important that appropriate measures are in place to minimise the risk of litigation.