7 December 2013

Prepared by Malcolm Buck - Solicitor of the Supreme Court of England and Wales
Admitted - October 1988
Solicitors Regulation Authority No139699

Features:

The Defamation Act 2013 and the Defamation (Operator of Websites) Regulations 2013 and their effect on Web Sites.
Updated Liability for Tree Roots
Implications for Clubs with Listed Buildings as a result of the Enterprise and regulatory Reform Act 2013

This Advice is not to be treated as a Contract between writer and recipient and neither the writer nor the League Cricket Conference accepts any liability. This Update is as a guide only and Clubs and Leagues are advised to take their own Legal Advice in the event of all questions of Law

This advice is not to be published without the consent of the League Cricket Conference.

LEAGUE CRICKET CONFERENCE LEGAL UPDATE
Winter 2013

The Main Feature looks at the important Law Changes which will shortly come in to force under the Defamation Act 2013 and how it will affect Web Site Operators.

The Follow On looks at the re-occurring issue of Tree Roots Damage

Westminster Watch this quarter will be of interest to Cricket Clubs who own Listed Buildings and the implications arising from The Enterprise and Regulatory Reform Act 2013.

The Main Feature

In March 2013 I reported on the Director of Public Prosecutions Statement regarding Social Media Sites. The Defamation Act 2013 ("the Act") has now had its Royal Assent and the Defamation (Operator of Websites) Regulations 2013 ("the Regulations") have been approved by Parliament and will come into effect on 1st January 2014. This will result in a considerable assistance to Web Site Operators and I am reporting on this subject now to ensure that Clubs and Leagues have time to prepare. Before explaining the Defences against claims for Defamation which web-site operators may now have under Section 5 and Section 10 of the Act, it is important that Club and League Officials are aware that Section 1 of the Act introduces a "Serious Harm" threshold for Defamation Complaints. The Complainant must show that the statement has caused or will be likely to cause serious harm to his or her reputation. The Ministry of Justice who pioneered this legislation through Parliament termed it as "raising the bar"

We have seen over the last decade a major expansion of the expression Social Media. Most Sporting Organisations have their own Websites with Forums where comments can be freely made. This has produced its own difficulties for Web Site Operators in terms of what appears on these Forums- the term 'Moderators' has its own special meaning in the world of Web Sites, in trying to police the content. A number of high profile claims have been brought before the Court alleging defamation of character of a third party by what has been posted on Web Sites / 'Blogs'. The Act and the Regulations which dovetail Section 5 are meant to restore a balance between Protecting the Individual and Free Speech.

The Issue is to what extent can the Operators of Web-sites be regarded as a Publisher of statements posted by one person (the Author) which can be defamatory of another person (the Complainant)

Section 5 comprises two separate Defences where a claim for Defamation is brought against the Operator of a Web Site in respect of a statement posted on the web site and will work like this

Section 5(1) Defence operates where the Operator did not post the statement alleged to be defamatory and it is possible for the Claimant to identify the person who posted the Statement and therefore take Action against the Poster direct
Section 5(2) Defence operates where the Operator did not post the statement alleged to be defamatory, the identity of the Poster cannot be readily established and the Operator has complied with the procedural requirements contained in Section 5 and the Regulations

It is these Procedural Requirements to establish a Section 5(2) Defence which are examined
The Complainant must serve a Notice in prescribed form on the Operator. The Notice must comply with Section 5(6) of the Act and Clause 2 of the Regulations namely

Specify the Complainants Name and his or her e mail addrees
Specify the Statement concerned, explain why it is defamatory or factually inaccurate and where on the Web Site it has been posted
State that the Post does not provide sufficient information about the Poster to be able to immediately bring proceedings against the Poster
State whether the Operator can give the name of the Complainant and the Complainants E Mail Address

Where a Notice given by a Complainant does not fully satisfy these requirements, a Section 5(2) Defence will only exist where the Operator advises the Complainant of the deficiencies in the Notice

The Operator on receipt of a Notice in prescribed form must within 48 hours ( Under Clause 1.3 of the Regulations time does not run on Saturdays, Sundays Good Friday Christmas Day or any other day which is a bank holiday as provided in the Banking and Financial Dealings Act 1971) take the following TWO STEPS

send the following to the Poster pursuant to the Regulations- the Schedule Clause 1

A Copy of the Complainant's Notice – where the Complainant has not authorised details of his or her identity, these details must be concealed
Notification in writing from the Operator that the statement complained of may be removed from the website unless

a) The Operator receives a written response from the Poster within 5 days of the Notification and

b) The Poster's written response, in the absence of giving consent to the removal of the statement, must includes details of the Poster's full name, his or her postal address of where he /she lives or works and whether or not the Poster consents to these details being sent by the Operator to the Complainant.
Notification in writing that the details of the Complainant will not be given to the Complainant unless the Poster consents or the Operator is ordered to do so by a Court

Send an Acknowledgement of the Notice to the Complainant pursuant to the Regulations Clause 3. The Acknowledgement must confirm receipt of the Notice and that the Operator has followed the procedures under the Regulations Clause 1.

Where the Operator has no means of contacting the Poster, a Section 5(2) Defence will only exist if the Operator takes the following TWO STEPS

Remove the statements from the web site specified in the Notice- The Regulations, the Schedule clause 2
Send an Acknowledgement of the Notice to the Complainant informing the Complainant that the Statement has been removed from the web site

If having served the Paperwork on the Poster under The Regulations The Schedule Clause 1(1) the Poster under clause 2 of the Schedule to the Regulations is obliged to

State whether or not he or she agrees to the removal of the Statement the subject matter of the Complainant's Notice
Where the Poster does not agree to the removal of the statement, provide his or her full name, postal address or residence of work and whether these details can be given by the Operator to the Complainant

The remainder of the Schedule to the Regulations deal with various Scenarios as a result of the service of the paperwork

'Clause 4 Scenario'- where having served a Notice under clause 1.1 on the Poster and the Poster fails to respond within the time period, the Operator must within 48 hours of expiry of the time period take the following steps
- Remove the statement from the website where specified in the Notice
- Send a Notice in Writing to the Complainant that the statement has been removed from the web site
'Clause 5 Scenario'- where having served a Notice under clause 1.1 on the Poster and the Poster responds within the time period, but does not give details of their name and address or the Operator has reasonable grounds to consider the address given is false the Operator must take the following steps within 48 hours of the response
- Remove the statement from the website where specified in the Notice
- Send a Notice in Writing to the Complainant that the statement has been removed from the web site
'Clause 6 Scenario'- where having served a Notice under clause 1.1 on the Poster and the Poster fully responds within the time period, and the Poster requests the removal of the statement from the Site, the Operator must take the following steps within 48 hours of the response
- Remove the statement from the website where specified in the Notice
- Send a Notice in Writing to the Complainant that the statement has been removed from the web site
'Clause 7 Scenario'- where having served a Notice under clause 1.1 on the Poster and the Poster fully responds within the time period that he/she does not wish the statement to be removed from the web site, the Operator must take the following steps within 48 hours of the response
- Inform the Complainant in writing that the Poster does not wish the statement to be removed and that the statement remains on the web site
- Where the Poster has consented to the web site operator providing his /her name postal address and e mail address, providing these details to the Complainant
- Where the Poster has refused to give consent to the divulging of his details to the Complainant the Operator must advise this in writing to the Complainant.

The Regulations –the Schedule, clause 8 deals with repetitive posting of the same or substantially the same statements on the same web site, posted by the same poster, which have been removed on two or more previous occasions by the Operator following Notice of Compliant from the same complaint. Here upon receipt of a fresh Notice under Clause 2 of the Regulations, the Operator must take the following steps within 48 hours

Remove the statement from the website where specified in the Notice

Section 10 Defence is more general and provides a defence for a person who is not "the author" "editor" or "publisher" of a defamatory statement as defined in the Defamation Act 1996, The Defence will not apply if a Court considers it is not reasonably practicable for an action to be brought against the author, editor or publisher.

SO WHERE DOES THIS LEAVE CRICKET CLUBS WITH FORUMS ON THEIR WEB SITES

Clubs who choose to have Forums on their Web-Site or opportunities for Bloggers should continue to have effective Moderators who regularly check the content. The Law does not prejudice the Club which tries to moderate content, from the Club which does nothing. Section 12 provides that a Section 5(2) defence can exist where moderators have acted upon statements posted by others previously
Either Section 5 Defence will fail where it can be shown the Operator of the web site has acted with malice in relation to the posting of the statement- Section 5(11). Examples could include inducing the Poster to post something defamatory about a match umpire
Clubs and Leagues need to ensure that their Web Site Moderators are checking content on a daily basis and are fully conversant with the Act and the Regulations. Copies are freely available on the Internet
Club Officials and Moderators must ensure that they act Promptly with Complaints and they follow the timescales and procedural requirements 'to the letter'. Although Clause 5 of the Regulations does allow the Court discretion to treat actions taken after the expiry of the time limit to be viewed as within the time limit, such discretion will only be exercised when it is "in the interests of justice". Costs of seeking a Court Order may be considerable in seeking an exercise of this Discretionary Power.
Clubs and Leagues should avoid Open Forums . Posters should only be allowed to post where the Club/ League have a full name, postal address and e mail address of the prospective poster. A set of Rules should appear prominently on the Web Site warning Users to ensure that any post
1. Accords with The Spirit of Cricket (this should be published on the Club/League Web Site and in any Handbook)
2. Does not discriminate or cause offence on grounds of Colour, Nationality, Race, Religion or Sexuality.
The Law is now based on how the Operator conducts itself once a Complaint has been received. It is analogous to the Club Notice Board. The leading case of which I am aware concerning Club Notice Boards is Byrne v Deane 1937. In that case defamatory material in the form of a poem was placed on the notice board of a Golf Club. The Club Officers became aware of the material but were adjudged to have taken insufficient steps within a reasonable period to bring about its removal. Here the Golf Club Proprietor and the Club Secretary were held to have published the notice after notification on the basis that they had failed to remove it upon receiving the complaint.
In 2013 in Tamiz v Google Inc, albeit Google Inc was not held liable for statements which had appeared on a religious blog which Google Inc had overall operational function, the Court of Apeal however did question whether Google Inc could have become associated with the statement and hence become a publisher of the material, because of the length of time it took after notification of the complaint, before removing the statement?

The Follow On

Tree Root Damage - I have previously brought to your attention the problems that Cricket Clubs may face where they have trees growing on their land close to neighbouring properties. The recent decision in Khan v Harrow Council has highlighted the Test for Liability is "the reasonable foreseeability of damage" to an adjoining property caused by a tree on your land and its roots spreading on to neighbouring property. Where damage is foreseeable then liability can exist notwithstanding the neighbouring owner has not given notice that damage has been caused. Where damage is not foreseeable, liability would only arise once a Neighbour had given notice and no reasonable steps had been taken thereafter to minimise the risk of continuing damage.

SO WHERE DOES THIS LEAVE CRICKET CLUBS WITH TREES ON THEIR GROUND

Clubs who own their own grounds should as part of their annual risk assessment of their Ground consider the presence of any trees and whether their roots could be a threat t neighbouring properties. In exceptional cases an Arborist may be needed to advise. Clubs should also ensure that they have comprehensive Insurance to cover this increasing litigious area.

Westminister Watch

The Enterprise & Regulatory Reform Act 2013- Important provisions come into effect on 6th April 2014 so Cricket Clubs with Grade 1 or Grade II listed buildings (listed because they have features with special architectural or historic importance) have time to prepare. As background once a Building had been listed, the listing covered the whole of the building (notwithstanding that only part of the building has a special architectural or historic value), any object or structure attached to the Building and other building which came within the curtilage of the listed building before 6th July 1948. Enforcement action for works carried out without Listed Building Consent could be taken at any time in the future, placing a landowner of a Listed Building in an uncertain position. The Act has/will bring four major changes to assist Cricket Clubs which own Buildings which are listed

Already in force under the Act- a landowner may apply to "de list" structures or objects which do not specifically form part of the Listed Building. So as an example The Premier Cricket Club has a listed Pavilion. Close by is an old score box which needs to be taken down and re-built. Application for de-listing of the score box would mean avoiding having to make a Listed Building Consent. However if the Premier Cricket Club's ground is in a Conservation Area, since 1st October 2013 demolition of a non listed building will still need Planning Permission and there remains no time limit for enforcement action to be taken.
From April 2014, Owners of Listed Buildings have the opportunity to enter into Heritage Partnership Agreements (HPAs) with their Local Authority and English Heritage. An HPA will set out works which can be done to a Listed Building without the need for Listed Building Consent. This is an important change which will place some certainty into the application of the Regime
From April 2014 in an attempt to bring greater certainty, Landowners will be able in advance of proposed works to a Listed Building, to apply to their Local Authority for a Certificate of Lawfulness of Proposed Works. This mirrors Section 191 of the Town & Country Planning Act 1990 so that the Premier Cricket Club with a Listed Building which needs renovation and repair works can apply to their Local Authority for a Certificate on whether Listed Building Consent Application needs to be made. The idea is to "weed out" unnecessary applications. Regulations are awaited on the Procedures for this application.
From April 2014, a Local Authority or the Secretary of State will be able to issue Listed Building Consent Orders (LBCO) granting consent for specified category of works. We await details of the Works, but the Scheme will mirror that of Small-Scale Permitted Development Rights which allow small development without Planning Permission.

Malcolm Buck (LLB Hons) – Solicitor- Tel No 0117 9713535

Legal Update