Section 5 Defamation Act 2013: Website Operators and User-Generated Content

Section 5 of the Defamation Act 2013 created a new defence for website operators against liability for defamatory content posted by users. It is one of the most practically important provisions in the Act — relevant both to claimants trying to hold websites responsible and to website operators trying to understand their legal exposure. This guide explains how section 5 works, how to defeat it, and what it means for forum owners, review site operators, and anyone running a platform with user-generated content.

The Section 5 Defence Explained

Section 5 of the Defamation Act 2013 provides that a website operator is not liable for a defamatory statement posted by a third party on its website — provided the operator did not post the statement itself. This is a significant shift from the pre-2013 position, where website operators faced potential liability as publishers from the moment defamatory content appeared on their site.

The defence is supplemented by the Defamation (Operators of Websites) Regulations 2013 (SI 2013/3028), which set out the detailed notice and take-down procedure that determines whether the defence is available.

How the Notice and Take-Down Procedure Works

A claimant who identifies defamatory content on a website can serve a formal notice on the operator under the 2013 Regulations. The notice must contain:

• The claimant's name and email address
• The URL of the defamatory statement
• An explanation of why the statement is defamatory
• Whether the claimant consents to their contact details being passed to the poster

Once a valid notice is received, the operator has 48 hours to respond. If the operator wishes to rely on the section 5 defence, it must contact the poster and give them an opportunity to respond within 5 days. If the poster agrees to removal, the content comes down. If the poster refuses or does not respond within the deadline, the operator must remove the content to retain the defence. If the poster is uncontactable (e.g. anonymous registration), the operator must remove the content within the 48-hour window.

When the Section 5 Defence Is Lost

The section 5 defence is unavailable in the following circumstances:

• The operator posted the statement itself (in which case the operator is the primary publisher)
• The operator failed to follow the notice and take-down procedure correctly
• The operator acted with malice in relation to the statement (e.g. actively promoted or endorsed defamatory content)
• The operator failed to remove the content within the required timeframe after receiving a valid notice

This means that a well-drafted notice under the 2013 Regulations — combined with clear follow-up if the operator fails to act — can effectively strip an operator of the section 5 defence, exposing them to full liability as a publisher.

The Relationship with the E-Commerce Regulations

Section 5 operates alongside the Electronic Commerce (EC Directive) Regulations 2002, which provide a separate "hosting" defence for passive conduits of information. The two regimes overlap but are not identical. The E-Commerce Regulations apply to a broader category of "information society service providers" and impose a lower threshold: a platform that is genuinely passive (not exercising editorial control) and acts expeditiously on notice can rely on the hosting defence under Regulation 19. In practice, most website defamation disputes are resolved through the section 5 notice procedure, the E-Commerce Regulations, or both simultaneously.

Identifying the Poster: Norwich Pharmacal Orders Against Websites

Where the defamatory content has been posted anonymously, the claimant's primary mechanism for identifying the poster is a Norwich Pharmacal Order (NPO) against the website operator. An NPO compels the operator to disclose whatever identity information it holds — IP addresses, email addresses, usernames, and registration data. UK courts grant NPOs against website operators as a matter of course where there is a good arguable case of defamation and the claimant has a legitimate interest in bringing proceedings against the anonymous poster.

Implications for Website and Forum Operators

If you operate a website, review platform, forum, or any site with user-generated content, you should: ensure you have a clear and accessible reporting mechanism for defamatory content; respond promptly to any notice under the 2013 Regulations (failure to follow the procedure precisely forfeits the section 5 defence); maintain accurate records of IP addresses and registration information for all users; and take legal advice before deciding whether to pass a poster's details to a claimant, as doing so without proper process can itself create liability.

Related Reading

UK Defamation Law Guide | Norwich Pharmacal Order (Glossary) | Privacy vs defamation: which claim is right?