Defamation and Social Media
The 2009 Act provides long awaited legislative reform to the Law of Defamation in Ireland, however it falls short in dealing with the issue of Defamation involving the internet, intermediary service providers and social media service providers.
The Law of Defamation in Ireland is governed by the Constitution, Common Law and the Defamation Act 2009. Whilst the 2009 Act provides long awaited legislative reform to the Law of Defamation in Ireland it falls short in dealing with the issue of Defamation involving the internet, intermediary service providers and social media service providers.
The 2009 Act abolishes the distinction between libel and slander and provides for a one year limitation period for defamation actions. The Act also provides that a person has only one cause of action for multiple publications i.e. where the same defamatory statement is published to two or more persons. This is relevant in respect of the defamatory publication of statements on the internet with the potential of a worldwide audience.
Cases of internet defamation often give raise to a situation where there is an inability on the part of the defamed party to identify the author of the defamatory statement. In these situations the wronged party looks to have the ISP or the Social Media Service Provider liable. Section 27 of the Act provides ISP’s with the defence of innocent publication. Pursuant to Section 27 the provider has a defence to an action for defamation where it can prove that it was not the author, editor or publisher of the statement to which the action relates. However reasonable care must have been taken in respect of the publication and it must be shown by the provider that it did not know and had no reason to believe that it caused or contributed to the publication of the statement giving raise to the defamation action. Regulation 16 to 18 of the European Ecommerce Directive (2003/31/EC) may also be relied upon. The directive provides that ISP who were mere conduits will escape liability if they did not initiate, select or modify the information contained in the transmission and did not select the receiver of the transmission.
Some recent high profile cases in both Ireland and the UK have provoked a debate on the right to privacy, the right of the press to fairly and accurately report court proceedings and circumstances where an internet service provider can be held liable for defamatory content published online
In the UK a recent Court of Appeal case “Payam Tamiz –v- Google Inc” Google sought to rely on the UK equivalent of Section 27 of the Irish Act and the EU Electronic Commerce Directive. The Court of Appeal held that where defamatory publications were allowed to remain on a blog after the SP had been notified of the defamatory nature of the publication it may be responsible for the continued presence of the material and thereby become a publisher. Five weeks were found by the Court to be sufficiently long for an inference to be drawn that Google was a publisher of the defamatory comments. It also concluded that Google might not be permitted to rely on the defence of innocent publication as it did not satisfy the test that it “did not know and had no reason to believe” that it contributed to the publication of a defamatory statement.
In an Irish case Eoin Keogh –v- John Doe & Others, Peart J. Ordered the removal from U Tube, footage wrongfully accusing the Plaintiff of running away from a taxi without paying. He also allowed the other Defendants one month to permanently remove the internet clip. The Plaintiff also sought and was granted an Norwich Pharmacal Order identifying the identity of the users that had defamed him. The Plaintiff further sought an Order restraining the media from reporting the proceedings in anyway which identified the Plaintiff and defamed him by repeating the material in question. Judge Peart held that he must refuse the application as he found that the media were and are entitled to name the Plaintiff in the reporting of their proceedings and there was no basis on which the Plaintiff was entitled to declaratory relief that the newspaper in question had breached the terms of the injunction granted against the other Defendants.
Whilst the 2009 Act falls disappointingly short in dealing with defamation in a world of continuous technological innovation, it is clear that the Courts when dealing with cases of online defamatory publication will strictly interrupt any defence provided for under the Defamation Act and will oblige the ISP’s to remove any defamatory material once they are on notice. Any delay on the part of the ISP to remove the defamatory content once on notice of it could lead the Court to hold that the service provider is responsible as publisher for the defamatory material.
Copyright © Nicola Sweeney, McKeever Solicitors, 31st March 2015.
This article is a general summary on the subject and is not intended to be a thorough review or a complete statement of the law. Specific legal advice should be sought on a case by case basis. For further information please contact Nicola Sweeney.