Well folks, we’re on the precipice of a whole new UK defamation law. Parliamentarian Lords and Commoners bestowed their approval, and have since been drafting guidelines.
Online, political borders are constantly crossed. As such, people everywhere have been speculating about how the notice and takedown system will work under the new UK libel statute.
And finally, the wait is over. Below is a “just the facts” rundown of the UK online defamation notice and takedown procedure. We’ll leave judgment for another day.
A Super Brief Summary of the Website Operator Defense in the 2013 UK Defamation Law
Section 5 of the 2013 UK defamation law outlines a defense for website operators similar to safe harbor protections afforded under United States Section 230 of the Communications Decency Act.
The UK Section 5 defense can be defeated if:
- The website operator can’t show who posted the offending statement; or
- The website operator fails to follow the notice and takedown procedures.
Below is a step-by-step outline of the UK online defamation notice and takedown procedure. Bookmark it for reference.
Step One of the UK Online Defamation Notice and Takedown Procedure: Sending A Complaint & Notifying The Poster
A takedown complainant must include the following information:
- Name and email address;
- Statement in question and why its defamatory;
- Explanation of the meaning the claimant derives from statement;
- Explanation of the exact unsupported false statements of fact or opinion;
- Where statement is posted;
- Explanation of why the claimant can’t contact the poster directly;
- Statement of whether or not the claimant consents to his or her name and email being released to the poster.
Dealing With An Incomplete Complaint Notice
If a website operator receives an inaccurate or incomplete notice of complaint, he or she must still treat it like a valid notice. Additionally, website operators only have 48 hours to inform the complainant that his or her notice is insufficient and why.
Defense Busting Opportunity: Failed To Respond In A Timely Manner
If the complainant eventually wants to mount a defense against a website operator for not complying with the notice and takedown system, the complainant must prove the website operator didn’t respond in a sufficient amount of time.
Step Two of the UK Online Defamation Notice and Takedown Procedure: Website Operator Alerts Poster of the Complaint
Operators have 48 business hours to inform posters of a complaint. However, courts have the authority to say whether or not a notification was executed in a relevant time frame.
If the website operator can’t contact the poster, he or she must remove the material in question. Additionally, the operator must notify the complainant within 48 hours that the material was removed on account of not being able to reach the poster.
If the poster can be reached, the operator has 48 hours to:
- Alert the poster by sending a modified version of the notice, which redacts the name and email of the complainant if the complaint indicated that they did not want to be known to the poster.
- Inform poster of the 5-day deadline for response and warn of removal if he or she doesn’t reply. The website operator must also explain that the poster has two options:
- Consent to removal; or
- Object to removal, in which case the poster must provide a name and postal address, regardless of whether or not he or she consents to having their contact information passed on to the complainant.
- Write a statement indicating that he or she will not reveal the poster’s contact information unless the poster consented to do so or court ordered.
- Send the complainant a written acknowledgement explaining:
- If the statement was taken down;
- How the complaint was communicated to the poster
Defense Busting Opportunity: Failed To Collect Poster’s Contact Information
Perhaps the most dubious aspect of the UK online defamation takedown and notice system is the user contact requirement. If a website operator does not maintain proper records, so to speak, the “bad books” become grounds for invalidating the operator’s defense.
Step Two of the UK Online Defamation Notice and Takedown Procedure: Poster Tells Website Operator To Keep or Remove Statement
Posters have until midnight at the end of the day specified in the notification to respond, “which must be the 5th day after the notification is sent.” The five-day period does include weekend and bank holidays.
When contacted by a website operator, the original poster has three options:
- Instruct the website operator to remove the offending statement;
- Instruct the website operator to keep the statement up.
If the poster ignores the notice, the website operator must remove the material. If the poster instructs the website operator not to remove the statement, but refuses to reveal his or her contact information to the website operator, then the website operator must remove the material.
Step Three of the UK Online Defamation Notice and Takedown Procedure: Website Operator Analyzes Poster Response and Notifies Claimant
If the poster doesn’t provide the proper information, or “the operator believes [the information provided] is obviously false,” the operator must take down statements and notify the claimant within 48 hours.
If the poster agrees to take down statements, but the claimant wants to pursue action, the claimant must apply for a court order to get the poster’s contact information from the website operator. The website operator is required to have the information on hand, but they are not required to hand it over unless a court so orders.
If the poster says, “keep it up,” then the operator must hand over the poster’s contact information if he or she consented to its release. If the poster refuses to reveal their identity to the claimant, the claimant must obtain a court order if he or she wants to pursue the matter.
Step Four of the UK Online Defamation Notice and Takedown Procedure: Actions For Repeat Offenders
If the same poster makes similar comments on the same website repeatedly, and one round of takedown request has already occurred, then the website operator must remove the comments – regardless of whether or not a formal complaint is sent – within 48 hours.
If all goes according to plan, under the new UK defamation law, the longest a potentially defamatory statement can remain online is nine days.