5Operators of websitesE+W
(1)This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website.
(2)It is a defence for the operator to show that it was not the operator who posted the statement on the website.
(3)The defence is defeated if the claimant shows that—
(a)it was not possible for the claimant to identify the person who posted the statement,
(b)the claimant gave the operator a notice of complaint in relation to the statement, and
(c)the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.
(4)For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.
(5)Regulations may—
(a)make provision as to the action required to be taken by an operator of a website in response to a notice of complaint (which may in particular include action relating to the identity or contact details of the person who posted the statement and action relating to its removal);
(b)make provision specifying a time limit for the taking of any such action;
(c)make provision conferring on the court a discretion to treat action taken after the expiry of a time limit as having been taken before the expiry;
(d)make any other provision for the purposes of this section.
(6)Subject to any provision made by virtue of subsection (7), a notice of complaint is a notice which—
(a)specifies the complainant's name,
(b)sets out the statement concerned and explains why it is defamatory of the complainant,
(c)specifies where on the website the statement was posted, and
(d)contains such other information as may be specified in regulations.
(7)Regulations may make provision about the circumstances in which a notice which is not a notice of complaint is to be treated as a notice of complaint for the purposes of this section or any provision made under it.
(8)Regulations under this section—
(a)may make different provision for different circumstances;
(b)are to be made by statutory instrument.
(9)A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(10)In this section “regulations” means regulations made by the Secretary of State.
(11)The defence under this section is defeated if the claimant shows that the operator of the website has acted with malice in relation to the posting of the statement concerned.
(12)The defence under this section is not defeated by reason only of the fact that the operator of the website moderates the statements posted on it by others.
Commencement Information
I1S. 5 in force at 1.1.2014 by S.I. 2013/3027, art. 2