Below is a “just the facts” rundown of the UK online defamation notice and takedown procedure.
2013 UK Online Defamation Law: The Website Operator Defense
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 prove who posted the offending statement; or
- The website operator fails to follow notice and takedown procedure.
Below is a step-by-step outline of the UK online defamation notice and takedown procedure.
UK Online Defamation Notice and Takedown Procedure Step #1: 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.
Incomplete Complaint Notices
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 mounts 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.
UK Online Defamation Notice and Takedown Procedure Step #2: 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 an adequate 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 because the poster couldn’t be reached.
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 notice and takedown system is the user contact requirement. If a website operator doesn’t maintain proper records, so to speak, the “bad books” become grounds for invalidating the operator’s defense.
UK Online Defamation Notice and Takedown Procedure Step #3: 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.
UK Online Defamation Notice and Takedown Procedure Step #4: 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.
UK Online Defamation Notice and Takedown Procedure Step #5: 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.
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