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Defamation Journalism Online

Publishers must be able to identify website commenters to claim defences under new UK Defamation Act

By Angela Haggerty | Reporter

January 8, 2014 | 5 min read

Legal defences under the new UK Defamation Act will be “useless” for publishers unless they can remove the cloak of anonymity from website comment sections and identify those posting messages, according to a legal expert.

Act: New defamation legislation took effect on 1 January

The legislation, which came into force on 1 January 2014, was designed to clarify and expand areas of the Defamation Act as the justice system tries to keep up with the digital revolution.

While publishers could already claim an absolute defence in defamation cases by adhering to the E-Commerce Directive – which requires them to quickly remove defamatory material once they have been made aware of it – the new legislation allows more time and flexibility to deal with defamation allegations, but only if the commentator can be identified.

The news follows a decision in October by the European Court of Human Rights which upheld an Estonian’s court’s decision to hold website accountable for defamatory content posted by an anonymous poster.

The move spurned speculation that website publishers may move away from anonymous comment sections and instead require users to register details with them.

Steve Kuncewicz, a lawyer who specialises in online media, told The Drum: “The section 5 defence is a big change and relates specifically to websites. It says that it’s a defence to show that whoever operates a website didn’t post the alleged defamatory statement in question, but it falls down if the person who did post it can’t be identified.

“Under section 5, if a publisher receives a notice of complaint they have 48 hours to respond to the complainant, and the author of the comment has five days to confirm to the publisher whether or not they give permission for their details to be passed on to the relevant party for the allegation to be dealt with.

“Of course, the problem is that if publishers deal with anonymous posts on their site, people are unlikely to own up, rendering the section 5 defence useless for them. They can either choose to utilise the options left open to them by the section 5 defence, of they can rely on the complete defence offered by the E-Commerce Directive.”

Kuncewicz added that the implementation of the section 5 process could be complicated for publishers and said much of the new legislation needed to be tested before the courts to establish points of law.

“For this new section 5 process to work publishers would find it more useful to simplify the method and say they will only accept notices of complaint via a form on their website.

“However, the chances are that it will then mean a new training need for staff, publishers may need to devote more of their workforce to it, presenting a whole new operational issue to get to grips with.

“As much as it certainly helps and these new defences do give publishers more options, if they want to go through the procedure that section 5 lays out it is quite complex and it’s going to need people to get to grips with it pretty quickly.”

Broadly, Kuncewicz said that the legislation would be welcomed by publishers due to its aim of reducing more trivial defamation complaints and placing a higher burden on the complainant to prove the threshold of ‘serious harm’ has been met, but again warned that the courts will require a period of testing to clarify exactly how that can be measured.

“Individuals will now have to show that a statement is not only defamatory, but that it could case them serious financial harm, and there’s no guidance anywhere on what that serious harm is - whether it refers to losing a job or something else, it’s going to need clarification.

“As far as corporate claims go, and I think this is where the legislation is really focusing, companies must be able to show that there is serious financial harm, the claim must meet both criteria, but how they show that is going to be quite problematic; would it require proving a drop in share price? Would they have to prove they lost a contract?

“Until the court clarifies these points with new case law, claimants will keep making claims. The legislation will likely lead to a drop in claims in the long term, but in the short term the courts must be clearer on how these new criteria will be met in law.”

Other changes to the defamation legislation include measures to curb ‘libel tourism’ by allowing UK courts to refuse jurisdiction in cases where the complainant is foreign and the case would be more suitably heard in their country of residence; and a time limit of one year from an article’s online publication date from which complainants can take action against publishers.

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