Defamatory online content may not always be capable of being addressed directly through the original publisher, particularly where it has been posted on discussion boards, forums or platforms that allow anonymous submissions. In such cases, identifying the responsible party and seeking removal may present additional challenges.
In some cases, once the content is submitted to a moderator or a platform, the power to remove it is no longer vested in the original poster and instead is at the discretion of third parties. This slightly complicates the circumstances of a takedown or correction request when considering the course of action around the defamatory material.
Even if the legal basis for defamation is fulfilled, issues around the procedure or even jurisdiction of the matter may arise, potentially creating difficulties in achieving the intended legal outcome.
The legal liability of platforms
One of the main legal challenges involving third-party platforms is that they may have protection from defamation liability when acting as passive hosts of user-generated content. Section 5 of the Defamation Act 2013 provides a potential defence for website operators in circumstances where they are not the authors or publishers of the defamatory material, subject to certain conditions being met. Providing they comply with the prescribed protocols in giving notice and taking down content upon reasonable request, they cannot be held liable.
As set out in the Defamation (Operators of Websites) Regulations 2013, upon receipt of a complaint, a website operator or platform must take the required procedural steps, including notifying the individual responsible for publishing the alleged defamatory material. The original poster may either agree to the complaint, in which case the content may be removed, or choose to contest it. If the complaint is disputed, the website operator may allow the content to remain available while still potentially maintaining their defence by demonstrating that they followed the required removal procedure and took reasonable steps in response to the complaint.
This is often the situation with anonymous posters or those who reside out of the jurisdiction of England and Wales. It is not uncommon for an impasse to be reached where the complainant has no recourse against the platform and is left with the sole option of reaching out to the poster directly.
Jurisdictional issues
A large proportion of major social media platforms are incorporated in the United States of America, which may give rise to jurisdictional issues when requesting the correction and takedown of defamatory content. However, it should be noted that while these platforms primarily operate in compliance with the laws of the country they were incorporated in, many of them adjust their terms for moderation, privacy and legal compliance to be compliant with local laws. That said, even with these regional safeguards, it may prove to be difficult to take legal action as these companies usually require disputes to be settled under the jurisdiction where the platform was incorporated.
When attempts to remove the defamatory content are unsuccessful, alternative means may be considered, including:
- Request to de-index the search results: under Article 17 of the UK General Data Protection Regulations (GDPR), an individual is entitled to the right to erasure when their personal data is processed unlawfully or inaccurately. The content remains on the platform, but fewer people will come across it in internet searches. However, there is no certainty that this approach will result in the desired outcome.
- Let it fade into the background: if the content has not, and is not, consistently causing serious harm, it may be sensible to allow the situation to slowly be forgotten over time. It is important not to do anything to exacerbate or reignite the situation.
Removing defamatory content from third-party platforms may not be straightforward, especially when it involves multiple jurisdictions and parties. In such situations, professional legal advice should be considered where platform-level remedies, including requests for correction, removal or other corrective measures, have failed to achieve the desired outcome.
If you required help removing defamatory content from a third-party website, please contact Nath Solicitors on 0203 983 8278 or get in touch with the firm online to discuss your case.