Updated on 19 September 2023

The term ‘defamation’ covers libel and slander. Both are about the publication of defamatory material, which is something that adversely affects a person or a company's reputation. Libel concerns lasting publications such as print or online publications. Slander concerns spoken words or gestures. Remedies for slander will be available if the claimant can show the slander caused tangible damage. By contrast, remedies for libel will be available where harm is proven or is likely to have been caused.

Disgruntled customers or malicious users regularly take advantage of the ability to operate anonymously on the web to make false statements about individuals or businesses on popular review websites, forums, and social media platforms. Popular review sites like Trip Advisor generate vast amounts of User Generated Content (UGC). In most cases these sites act as a useful and positive source of marketing and promotion. Customers and users can legitimately write about positive and negative experiences. But UGC can be factually incorrect and malicious. It can sometimes amount to defamation, resulting in reputational harm and commercial loss.

The Consequences

An ill-considered statement posted on the spur of the moment, visible to thousands of other website users, could have serious consequences for the author and even the platform on which it is published.

Whilst the author is potentially liable for defamation, the website operator may also be held liable for having committed the act of publishing the statement. What if the author of the UGC cannot be identified or located for the purposes of starting a claim? What if the website operator fails to take down a defamatory comment or otherwise fails to act?

The law of defamation is largely based on the common law, but it has been substantially modified and codified by statute and regulation. The most recent example is the Defamation Act 2013 (DA 2013) and its associated regulations.

The DA 2013 came into force on 1 January 2014 and made significant changes to the law of defamation. It applies to all publications made from that date. It specifically addresses the issue of defamation in the context of UGC by introducing procedures for victims of defamation when contacting website operators about offending content.

It also introduced the requirement that for a statement to be defamatory it must have caused or have the potential to cause “serious harm” to the claimant’s reputation. For businesses to meet this requirement they must show that “serious financial loss” was caused, or is likely to be caused, by the content.
Serious financial loss is not defined by the DA 2013. There is some guidance from the courts on what constitutes serious harm or serious financial loss. The case of Cooke and Anor v MGN [2014] EWHC 2831 was a defamation claim against the Mirror Group and was the first judgment on the serious harm requirement codified by the DA 2013. But the judgment offered little guidance on the evidence needed to prove serious harm.

Judicial guidance has developed since Cooke. In Lachaux v Independent Print Ltd & another [2019] UKSC 27 the Supreme Court acknowledged the DA 2013 changed the common law. A statement that would previously have been regarded as defamatory because of its inherent tendency to cause some harm to the subject's reputation would no longer be so regarded unless it had caused, or was likely to cause, serious harm. These things are a matter of fact and degree determined by reference to the actual impact of the words used, not just their inherent meaning. Lachaux had been awarded £120,000 in damages by the lower Court.

Similarly in Hijazi v Yaxley-Lennon [2021] EWHC 2008 (QB) the High Court ordered a well-known public figure on the political right to pay an 18-year-old Syrian refugee £100,000 after publishing defamatory content on a well know social media platform.

Conversely Amersi v Leslie and Others [2023] EWHC 1368 (KB) concerned the publication of documents that contained defamatory allegations about the Claimant which were sent to various recipients including MPs and other high-profile individuals. The Court refused permission for the Claimant to amend his claim and the claim was dismissed because the Claimant was not able to produce evidence that they suffered serious harm to their reputation. The judgment also demonstrates the requirement that it is necessary to produce evidence of serious harm for each publication because each publication is considered a separate cause of action.

The provisions in the DA 2013 raise the threshold on what might constitute harm and loss, but the outcome of any given defamation claim remains difficult to predict. Each case must be assessed on its own merits. This requires a detailed analysis of the facts and the outcomes with careful application of the legal principles.

Section 5 DA 2013: Websites and User Generated Content

While the DA 2013 does provide some protection for website operators that protection can be lost if the website operator fails to assist the victim of defamation to find the user who authored the offending content. In this context the DA 2013 imposes significant burdens on website operators.

If website operators want to benefit from the protections conferred upon them by the DA 2013, they should take steps to authenticate their users’ identity and contact information, keep that information and pass enough information to a victim to enable that victim to issue court proceedings.

What is the procedure a victim of defamation should follow?

The DA 2013 and associated regulations introduced a ‘Notice and Takedown’ procedure. A victim of defamation can issue a ‘Notice of Complaint’ to a website operator. The Notice of Complaint must contain certain information. The website operator then has an obligation to process the notice within forty-eight hours of receipt (excluding non-business days). If the author is not known and cannot be contacted, the website operator has 48 hours to remove the offending UGC from the platform. In most cases that may well be the end of the matter.

If the author is known to the website operator and is contacted by them, the author has until midnight on the fifth day after the notice was sent to respond. The author may withhold their consent for the content to be taken down. In this case, unless the author gives their consent to the website operator to release their details to the victim of defamation, the victim will need to obtain a court order to compel the disclosure of the author’s details.

A victim of defamation is expected to follow these procedures, and in most cases the provisions of the Pre-Action Protocol for Media and Communication Claims, before issuing court proceedings.
When is a website operator liable?

A website operator is liable for the defamatory comments of a user only if it fails to follow the procedures under Section 5 of the DA 2013 mentioned above and if a defence is not available to it.

If the operator fails to properly respond to a Notice of Complaint and the author cannot be sufficiently identified – preventing the claimant from starting proceedings – the website operator may be liable. This jurisprudence has developed to provide website operators sufficient incentive to ensure they have procedures in place to obtain and retain sufficient information about their users. This poses several issues and concerns in the context of data protection, but these are outside the scope of this article.

Do you require advice? We can help you.

The DA 2013 sought to simplify the law and in many ways, it has achieved this aim. But the law remains complex and difficult to navigate. Gosschalks LLP can advise business and individuals on defamation law, the procedures to follow, the preparation of relevant notices and legal proceedings.

You can contact Sam Thompson today on 01482 324252 / 07851 720565 or email sjt@gosschalks.co.uk