Saracens Blog

Defences to defamation under the Defamation Act 1996

Section 1 of the Defamation Act 1996 provides a defence from liability for defamation for secondary publishers: that is, if they were not the ‘author’, ‘editor’ or ‘publisher’. Section 1 (2) of the Defamation Act defines these terms.

When the owner of a website hosting user-generated content is accused of publishing a libel contained in such content, Section 1 of the Defamation Act 1996 is usually the first point of call.

However there are some categories of person who will never be considered an ‘author’, ‘editor’ or ‘publisher’ under the Defamation Act 1996.  Of particular interest to website owners are Sections 1(3)(c) and (1)(3)(e) of the Defamation Act 1996.

In addition to not being an author, editor or publisher, a person wishing to rely upon the Section 1 defence under the Defamation Act 1996 must show that he or she (or it) took reasonable care in relation to the publication, and did not did not know, and had no reason to believe, that what he or she (or it) did caused or contributed to the publication of a defamatory statement in accordance with Section 1 (5) of the Defamation Act 1996.

Taking this into account, it is fair to say that the defence stipulated under the Defamation Act 1996 leaves web publishers in a dilemma. Under the Defamation Act 1996 they must show they took reasonable care in relation to a publication.  However, in some circumstances reasonable care may require prior review and prior review may lead to the web publisher being considered to be an “editor” and therefore not entitled to take advantage of the Section 1 defence of the Defamation Act 1996. id

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