ISPs Provided With Defence to Liability for Defamatory Comments Made on Their Websites

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Subject to a number of exceptions Internet Service Providers (‘ISPs’) (or website operators) are set to be protected against liability for defamatory comments made on their websites under the Defamation Act 2013 (‘the Act’).

The Act is set to come into force on the 1st January 2014 and with it a new set of regulations, the Defamation (Operators of Websites) Regulations 2013 (‘the Regulations’).  The Regulations will be warmly received by ISPs as they will be provided with a defence to liability for defamatory comments which are made on their websites by third parties.

ISPs will not have a carte blanche protection and should still be wary of comments which are being made on their websites.  The need to act fast when a complaint is made to them is highlighted by a number of exceptions to the defence under the Regulations.  The defence cannot be relied on by the website operator in the event that the person complaining about the defamatory comments can show that:

  1. they didn’t know who was responsible for posting the defamatory statement on the website and can only therefore have recourse against the website operator;
  2. they complained in the appropriate way by sending a notice of complaint to the website operator (explaining where on the website the defamatory comment appears, what it is that the comment says and provides the ISP with an explanation as to why it is defamatory); and
  3. having followed the necessary procedures to try and identify the poster/complain to the website operator, that operator failed to respond to the complaint as provided for under the Regulations.

This defence will be welcoming to ISPs, in order to use it they must be sure to act promptly and to remove the defamatory comment within a short period of time if the original poster does not engage.

While increased protection is afforded to ISPs under the new legislation, it still highlights the importance of having the necessary Acceptable Use Policies and Procedures in place to prevent potentially defamatory comments from being posted.  Having the necessary policies in place can also assist ISPs in reducing the potential for being held liable for the actions of others on their website where defamatory comments cannot be prevented in the first instance.

For advice or assistance on implementing policies or for further advice on defamation, contact the Forbes Solicitors Business Law team or call 01254 222399.

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