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A Website Defamation Notice is used by individuals or businesses (the "Complainant") to make a request to the owner of a website (the "Website Operator") to remove defamatory content posted by a user of the website (the "Poster").
There are 3 parties to a Website Defamation Notice as follows:
A Complainant may send a Website Defamation Notice to a Website Operator in the following situations:
1. The Poster of the defamatory content is anonymous; or
2. The Poster of the defamatory content has a username on the website, but the identity of the Poster cannot be determined; or
3. The Complainant knows the real-life name of the Poster of the defamatory content, but is unable to determine the Poster's email address or a postal address.
If the Complainant knows the identity and the contact details of the Poster then this Website Defamation Notice should not be used and defamation proceedings should be brought directly against the Poster.
A statement is defamatory if:
1. An aspect of the statement is factually incorrect; and/or
2. An aspect of the statement is an opinion that is not supported by fact; and
damage is caused to the Complainant's reputation or otherwise does them harm.
It is important to ascertain which aspects of the defamatory content are factually incorrect and/or are opinions not supported by fact. This information is required for the Website Defamation Notice to be valid.
How to use this document
This Website Defamation Notice allows a Complainant to contact the Website Operator to request the removal of content considered to be defamatory or damaging to the individual or the reputation of a business posted by a single Poster.
This Website Defamation Notice enables a Complainant to clearly identify the defamatory content; state the location of the content on the website; explain what the Complainant thinks the defamatory content means; and state why the content is defamatory. This Website Defamation Notice also enables the Complainant to clearly identify the aspects of a statement they believe to be factually inaccurate and/or opinions.
In cases where multiple defamatory statements were made by the same Poster on the website, then this Website Defamation Notice allows for up to 5 separate defamatory statements to be included.
This Website Defamation Notice also covers the need for a Complainant to confirm that they do not have sufficient information about the Poster to bring direct proceedings against that person. In addition, this notice gives confirmation of whether or not the Complainant gives their consent to their name and email address being provided to the Poster.
It is very important that this Website Defamation Notice is completed in full. Any notice of complaint sent to a Website Operator must contain very specific information that is required by law and this Website Defamation Notice is designed to satisfy those requirements. If any information is missing, the notice might be considered an improper notice and may permit the Website Operator to take no action and leave the defamatory content on the website.
Following completion of the document, the Complainant should send it by email to the Website Operator's email address. If the Complainant has the Website Operator's address, the document should also be printed, signed and sent by registered mail to the Website Operator. The Complainant should ensure that they save a copy of the email and if applicable, a hard copy of the printed document for their records. The Complainant should also make a note of the date and time the email was sent and/or the date the printed copy was posted to the Website Operator.
Process after sending the Website Defamation Notice to the Website Operator
Upon receipt of a Website Defamation Notice, the Website Operator must adhere to a set process as follows:
If the Website Operator does not have the contact details of the Poster then they must remove the defamatory content and within 48 hours (not including non-business days or public holidays) of receiving the notice, inform the Complainant that the content has been removed.
If the Website Operator has the contact details of the Poster then they must contact the Poster within 48 hours (not including non-business days or public holidays) of receiving the notice, notifying them of the complaint. The Poster must then respond within 5 days (not including non-business days or public holidays) otherwise the content must be removed by the Website Operator.
The Website Operator must, within 48 hours (not including non-business days or public holidays) of contacting the Poster, notify the Complainant that they have made contact with the Poster.
The Poster may respond to the notice and they will either accept the removal of the content, or advise the Website Operator that they do not wish the content to be removed. In this latter situation, the Complainant may choose to issue legal proceedings against the Poster.
In cases where the Poster has prohibited the Website Operator from sharing their contact details with the Complainant, it is open to the Complainant to obtain a court order requiring the Website Operator to release the contact details of the Poster to the Complainant.
If the Website Operator does not comply with the full process outlined above, then the Complainant may issue legal proceedings directly against the Website Owner.
The Defamation Act 2013
The Defamation (Operators of Websites) Regulations 2013
The Ministry of Justice published a very useful guide entitled Complaints about Defamatory material posted on websites: Guidance on Section 5 of the Defamation Act 2013 and Regulations
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