To what extent am I protected by the website terms and conditions in the event that someone posts something illegal on my site?
This is not an easy question to answer in a few paragraphs. However, I'll try.
The default position under English law is that a website owner is the publisher of all the material on his or her website, including users' posts and other user content. So, the website owner may be liable for defamation, copyright infringement, etc in respect of user content in the same way that a paper-and-ink publisher may be liable for the contents of its books and magazines.
Subject to the comments below, terms and conditions will not usually be able to affect the legal position - the nexus of legal rights and obligations - between a website owner and a third party who does not use the website. So, you cannot use your website T&Cs to simply exclude all liability in relation to user content. However, terms and conditions may (as our template does) include warranties and indemnities from users that in principle allow an operator to recover losses from a guilty user if there is a third party claim. In practice recovery may not be practicable, for example because the user is impecunious or inaccessible or the size of the loss does not justify a secondary claim.
The harshness of the basic liability principle is mitigated by special defences under the UK's Ecommerce Regulations
(derived from the EU's Ecommerce Directive
). These defences may protect a website operator who is acting merely as a host of illegal material from "pecuniary remedies" and "criminal sanctions".
There are restrictions on the availability of the defence. Notably, the hosting defence is however only be available where the person who posts the illegal content is not acting under the authority of the website owner. Accordingly, website terms should make it clear that users are not authorised to post problematic content. So, another way that website terms and conditions can help is by facilitating a defence under the Ecommerce Regulations.
In relation to libel, they may also facilitate a defence under Section 1 of the Defamation Act 1996
- discourage users from posting unlawful content in the first place
- give operators a possibility of claiming losses arising out of a third party claim from the user who posted the unlawful content
- facilitate defences under the Ecommerce Regulations and Defamation Act
Disclaimer: this is a very brief account of a complex subject, and should not be relied upon in place of proper research and where appropriate professional advice. The extent to which any particular set of terms and conditions will give these protections to any particular website will depend very much on the particular circumstances.
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