Website operators lie behind the scenes of the complex tapestry, which makes up the World Wide Web. Their role is valuable; however most of us give them no thought, so long as we can access the internet and relevant sites, where and when we want them! Until something goes wrong, that is. Once something defamatory is published against you or against your company, website operators become a crucial point of call in the search for who may be responsible for the original publication of the defamatory material, and also key to getting the article or site removed.
However, one is forced to ask the question, why did the operators allow such material to be published in the first place? Do they have an obligation to carry out checks on the information being published, making them liable too? Or is their ignorance a frustrating, but valid, excuse?
Section 1, the Defamation Act 1996 offers us some assistance as it clearly lays out the defence for involvement in defamatory material .
Section 1 provides that:
In defamation proceedings a person has a defence if he shows that:
(a) he was not the author, editor or publisher of the statement complained of
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
So, let’s tackle each above point in turn, specifically in relation to website operators.
Section 1 (a)
It mentions author, editor or publisher. Sections 2 and 3 go on to provide further clarification of the exact persons who can be classed as an author, editor or publisher.
Section 3(e) of the Defamation Act 1996 is the most relevant here and further states that:
A person shall not be considered the author, editor or publisher of a statement if he is only involved as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.
Whilst this may sound like long winded jargon, it appears to make express provision for website operators, omitting their liability. This is because their role is to simply transmit the material, and because of this, cannot be held responsible for forming its content. They essentially, have no control over what is written.
Section 1 (b)
It mentions taking reasonable care in relation to the publication. Can the website host really be seen as the innocent bystander, even though they have to at least take ‘reasonable care’?
Again, the law assists us in what is enough to qualify for ‘reasonable care’ when it states in Section 5:
In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard shall be had to
(a) the extent of his responsibility for the content of the statement or the decision to publish it
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the author, editor or publisher.
It is the above section (a), which is a website operator’s ‘get out of jail free’ card as if he can show the extent of his responsibility remains low, he is unlikely to be held responsible.
In computer terms, this means it is in fact in the website operators’ best interests not to adopt any prior review or editing procedures, so they cannot be found negligent in their checks when defamatory material is published. If they can succeed in arguing such checks cannot be a part of taking ‘reasonable care’ (on the grounds of cost or the sheer volume of publications etc) it would appear this defence has been satisfied.
This seems a wholly unjust means of operation, not least for the poor victim being unfairly defamed, yet in the eyes of the law there has been no breach.
Section 1 (c)
It mentions that the website operator did not know or have reason to believe that defamatory material had been published on one of their websites.
This is presumably a fairly easy criterion to satisfy for website hosts, where it seems ignorance really can be a lawful excuse.
However, clearly once a website operator is notified by a victim of defamation or by the victim's internet lawyer, that defamatory material has been published on one of their websites, they can no longer claim they did not know or that they did not have reason to believe. They are now under an obligation to take reasonable steps to remove the material.
There is therefore a very powerful argument to conclude that every website operator that has received a written notification by a victim of defamation or their internet lawyer, automatically becomes liable for defamation unless the material is being removed immediately.
Pinder Reaux & Associates