What if a review website only allows people to see the content on it if they agree to the condition that the content on the website can never be used to seek libel claims by any parties accessing it? The review website will however allow complainants and reviewers to get in direct contact to resolve any issues thay may have in relation to a post and keep a moderated publishing practice in place. What will be the legality of such a statement on the landing page of the review website, and the chances of users still using content of the reviews to seek libel claims?
Thanks in advance.
Alasdair Taylor's Answer
Hi Raj – thanks for your question.
When I write the T&Cs for a website publishing reviews, I will sometimes include a clause requiring users to waive their rights to sue the website publisher for any defamatory material contained in a review. So far as I am aware, there is no English case law considering the enforceability of such a clause. However, the English courts regularly rule that limitations and exclusions of liability are not enforceable for one reason or another, and are several legal tools that the courts might use to challenge a “no defamation” clause. The outcome of such a challenge would, I think, depend upon the specific circumstances of the case.
Questions that might be asked include:
- Did the user give full and free consent to the clause? The more informed and unambiguous the consent, the more likely the clause is to be enforceable.
- Is there a contract between the parties, or is the clause a non-contractual disclaimer?
- Is the user a “consumer” for legal purposes? If so, the clause may be challenged under consumer protection law.
- Would the web publisher be protected anyway by section 1 of the Defamation Act 1996 or regulations 17-19 of the Ecommerce Regulations. If so, the clause is more likely to stand, albeit perhaps without any practical effect.