Courts would have the power to order website operators to remove comments that have already been ruled to be defamatory even if those website operators did not post the comments themselves, according to the latest revisions to the Defamation Bill.
Under the Bill people who have been allegedly defamed would be able to bring an action for defamation against website operators under certain circumstances.
However, website operators can generally defend themselves against such claims if they can "show that it was not [them] who posted the statement on the website", providing that it is possible for those suing to identify the individual who posted the comments, and if the website operator has responded to a "notice of complaint" about the comments in line with as-yet-to-be-determined regulations.
Those regulations could set out how website operators should respond to requests to remove comments or set new obligations requiring them to provide details of the identity of website comment posters to those who have been allegedly defamed, according to the draft Bill [PDF].
Under the proposed new laws, though, courts would be able to force website operators to act to remove comments if the judges have previously determined the comments to be defamatory.
"Where a court gives judgment for the claimant in an action for defamation the court may order the operator of a website on which the defamatory statement is posted to remove the statement," article 13 of the Defamation Bill states.
The change to the Bill "addresses the fact that an author may not always be in a position to remove from a website material which has been found to be defamatory," according to the Ministry of Justice's explanatory notes relating the Bill. The drafted court powers "will enable an order for removal of the material to be made during or shortly after the conclusion of proceedings, or on a separate application," the notes said.
The Bill has been amended following its transition through the readings, committee scrutiny and report stages in the House of Commons. The Bill has yet to receive its first reading in the House of Lords.
Under the proposed revisions website operators who moderate comments made by others do not lose their right to defence against claims of defamation against them.
According to the Bill as currently drafted, it is considered possible to identify the individual who has posted defamatory comments online if those who have been allegedly defamed have "sufficient information to bring proceedings" against that individual.
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