Don’t shoot the messenger…just yet
Posted on April 2, 2014
With the nation blogging, tweeting, and posting on Facebook, LinkedIn and other websites on a regular basis, businesses have to be acutely aware of what is being said about them online.
Individuals and businesses who are defamed by material hosted on online platforms will usually want the material to be taken down as quickly as possible, in order to avoid serious harm to their reputation being caused or increased.
But who controls the material and who can remove it?
If you know who posted the material, then you should contact them immediately asking for the material to be taken down. However, often the contact details of individuals who post on websites are not publicly available, as most users are only known by a username or nickname.
Even if you are able to contact the offender, if they do not take the material down, the next step would be to take legal proceedings. Whilst this can be a hugely effective step, it is expensive. If the offender is an individual of modest means, you, or your business, may find yourself with a large costs bill, which you may not practically recover from the offender.
With this in mind, it is always worth contacting the operator of the website hosting the offending material, requesting that they take it down. If they refuse to remove the posting upon receipt of formal notice, you could bring a claim for damages against the website operator if you have suffered serious harm to your reputation as a result of the offending material (and in the case of a business, serious financial loss in addition).
One benefit of suing the operator is that they are more likely than an individual offender to have the necessary financial means if a court orders that they pay you damages and/or costs.
However, on 1 January 2014, new legislation (the Defamation Act 2013) brought into effect a new defence for operators of websites where a defamation action is brought against them in respect of a statement posted by a third party user on their website.
Will the operator get off scot-free?
No. Operators can only establish a defence if they can show they did not post the statement on the site and they comply with certain conditions including providing you with prescribed information as set out in the new law. This law requires the site operator to provide, amongst other things, sufficient information to the claimant, upon receipt of a notice of complaint, to enable the claimant identify the third party user. This includes the full name and address of the offender, so that the claimant is able to bring proceedings against them.
In most circumstances, it is highly unlikely that the site operator would hold such details for their users. Even if the information is known, can it be released to the claimant, without the permission of the user? Isn’t that a breach of data protection laws? The answer is currently being debated and regulations which will accompany the act and provide more guidance, are still being drafted.
All is not lost
So, until such time as the regulations are agreed, it is likely that site operators will only be able to use the defence in limited circumstances, meaning that site operators could find themselves in an unwelcome position, if the material is not removed by the offender upon request.
Moral of the story
If defamatory material is posted online about you, ACT QUICKLY and serve a compliant notice on both the website operator and (if possible) the individual offender as soon as possible. Unless they can release information about the identity of the user to you, to avoid any liability, the operator is likely to take down the material immediately and consequently limit the harm caused to you/your business.
For more information, email email@example.com.