Someone Commented on Your Facebook Post: When will Online Intermediaries be Liable as Publishers of Third Party Defamatory Content?

Abstract

This paper attempts to simplify the liability of online intermediaries as publishers of third party defamatory content that they host. It proposes that due to two significant gaps in the Harmful Digital Communications Act 2015, the law of defamation must be reformed to provide predictable outcomes for intermediaries. The author offers solutions under two headings: the period before an intermediary has knowledge of third party content; and the period after which the intermediary becomes aware of its existence. For the former, this paper proposes that the innocent dissemination defence is reformed to apply to online intermediaries. For the latter, the author asserts that personal and commercial operators should be held to different knowledge standards leading to liability, based on traditional defamation principles. Furthermore, this paper assesses the control that an intermediary might exercise over their content, and attempts to reconcile this with a knowledge-based approach. It also introduces the principle of severance, which European Union and United Kingdom case law apply to define precisely the content for which the intermediary is liable. Lastly, this paper examines how reform has worked in the United Kingdom, before proposing statutory reform to the Defamation Act 1992 in Appendix A.