Defamatory material on Facebook and YouTube: McKeogh v. Doe and others

The High Court today gave a significant decision in McKeogh v. Doe and others concerning defamatory material posted through Facebook and YouTube. The background to the case is well summarised by the Daily Mail. As I have a professional involvement I'll refrain from any comment except to explain that this is an interlocutory judgment (i.e. pending a final hearing of the action) in which Peart J. held that a mandatory injunction should be granted against Facebook and the Google defendants requiring them to take down material defaming the plaintiff until the full trial can take place. The judgment did not itself grant an injunction - instead, the details of the injunction will be determined following a meeting to take place between experts for the plaintiff and the defendants. After this meeting the experts must report back to the court with either an agreed report or separate reports regarding the technical steps which can be taken to remove the defamatory material as far as reasonably possible.

Full text of the judgment:

Legislation is not the answer to abuse on social media

I had an opinion piece in last week's Sunday Business Post in response to the latest Irish panic about the internet. As it's behind a paywall the full text (with added links) is below:
 
Legislation is not the answer to abuse on social media

Earlier this week the Chinese government passed a measure requiring all internet users to register their real names. The official line has been that the law is to "safeguard the lawful rights and interests of citizens" and "social and public interests", but Chinese bloggers have been in no doubt that it is a response to growing use of the internet to expose official abuses. It's disappointing, therefore, that some within the Irish government seem to be considering a similar approach.

The background is the suicide of TD Shane McEntee. Some members of his family and politicians have said that "abuse" directed towards him on social media over cuts to the respite care grant had caused him great stress. Social media abuse has also been linked to other recent suicides, though politicians need to be careful not to over-simplify the complex causes behind someone deciding to take their own life.

A number of politicians have now called for regulation of social media and the Oireachtas Committee on Transport and Communications has scheduled a special meeting for January to look into the issue with its chairman, Tom Hayes, saying that "people have to be made accountable for what they are saying".

Kneejerk calls for "regulation" ignore the reality that social media is already regulated in the sense that the law applies online as it does offline. Where defamatory comments are made online then a defamation action can be brought in the same way as though those comments were made in a telephone call or letter.

The criminal law applies in the same way --- in particular, the offence of harassment contrary to the Non-Fatal Offences Against the Person Act 1997 has already been used to prosecute online activity. In each case, whether civil or criminal, there are already mechanisms to permit the identification of internet users accused of serious wrongdoing.

Given these existing laws, when politicians call for people to be made "accountable" then either they are unaware of the current mechanisms to deal with breaches of the law or they have something else in mind, some new form of regulation which would restrict speech online to a greater extent than offline.

There are, so far, no concrete proposals on the table, but there is already hostility among Irish politicians to the ability which the internet gives users to speak freely. Ruairi Quinn earlier this year, for example, described the internet as "a playground for anonymous back-stabbers". Consequently, one particular issue that is likely to be floated is that of requiring some form of real name registration for internet users.

The proponents of real name laws invariably make the same point -- that online discussions would be more civil if individuals spoke under their own names. There is a superficial appeal to this argument even if politicians themselves show that the contrary is often the case. Our politicians are never slow to attack each other in the most abusive of ways, but this does not attract the same political condemnation as similar remarks made on social media by ordinary citizens.

There are, however, very fundamental problems with real name laws. Fortunately there is international experience to show why this is. In 2007, South Korea adopted a real name verification law under which websites with more than 100,000 visitors a day were required to record the full identity of visitors posting comments using their resident registration number --- the equivalent to the Irish PPS number. Though users could still use pseudonyms on these sites, the theory was that their true identities could be revealed in the case of wrongdoing.

In a striking parallel with the current Irish situation, this law was partly prompted by suicides of celebrities said to have been the victims of cyber-bullying.

How did this experiment fare? In short, it was a disaster. It was trivially easy to evade --- users could simply move to overseas websites, making it harder rather than easier to enforce the law, while also harming the local internet industry.

It created multiple poorly-secured databases of user identities, which led to South Korea becoming one of the countries most affected by privacy breaches and identity theft.

Most importantly, it led to a chilling effect whereby citizens were deterred from speaking out online for fear of retribution. In 2011, the government announced plans to abandon the law and in August of this year the Constitutional Court unanimously ruled it to be unconstitutional, holding that it disproportionately restricted freedom of expression and did not achieve any public benefit.

In particular, the court found that "there is no evidence that the real name system has significantly reduced the defamatory or otherwise wrongful posting of messages".

The journalist HL Mencken is credited with the expression: "For every complex problem, there is an answer that is clear, simple--- and wrong." In the case of social media, real name legislation is precisely that. True, there are wider issues with civility in social media --- just as there are with civility in public discourse generally.

It also doesn't help that Irish politicians have yet to come to terms with how social media amplifies public opinion, debate and interaction, so that they can sometimes experience the active citizenry which it enables as a relentless flow of criticism.

These, however, are overwhelmingly issues of manners and social norms --- not matters for legislation. The few cases which are genuinely defamatory or criminal can be referred to the legal process, but the remainder are best dealt with by continued conversation, education and self-moderation by online communities.

Coleman v. MGN - jurisdiction in internet defamation cases

The Supreme Court yesterday gave a decision on internet defamation in Coleman v. Mirror Group Newspapers, where it held that the Irish courts had no jurisdiction in relation to a photograph said to have been published on the Mirror website in 2003. The judgment turns for the most part on deficiencies in pleading rather than on the substantive law so is of little precedential value, but it does highlight the fact that the courts will not rely on "presumed" publication in this jurisdiction - there must be evidence that online material was actually read by a person within the jurisdiction in order for a defamation claim to be brought:

First, there is no pleading that the publication alleged of the relevant articles is by internet publication of the relevant newspaper. Nor could such a pleading be inferred from the words of the Statement of Claim. Secondly, there is a need for evidence of publication to establish the tort of defamation. There is no evidence before the Court that the Daily Mirror was published on line in 2003. There is no evidence that the daily edition of the Daily Mirror was on the world wide web in 2003. Thirdly, there is no evidence of any hits on any such site in this jurisdiction. These are fatal flaws in the plaintiff’s case.

Compare the similar decision in USA Rugby v. Calhoun.

The first Irish case on defamation via autocomplete

Another story lost behind the Sunday Times paywall last week was Mark Tighe's piece on what seems to be the first Irish case alleging defamation via Google's autocomplete system:

Hotel Fury over Google

A FAMILY-OWNED hotel in Louth is suing Google because it says the search engine giant gives web surfers the mistaken impression it is bust. The four-star Ballymascanlon House hotel, located outside Dundalk, has applied for a High Court injunction to prevent the Google search engine from suggesting it is in receivership.

Ballymascanlon is not in receivership and the Quinn family, who have run the hotel for 70 years, say it is trading successfully.

Google declined to comment on the legal action.

When search engine users type the first seven letters of the hotel's name into Google, the website's automatic prompting service, Google Instant, throws up the suggestion "Ballymascanlon hotel receivership".

The hotel, one of the most popular wedding venues in the northeast, says it has been contacted by brides who had booked weddings there and were "in tears" after seeing the Google prompt.

Mark Collier has an excellent post setting out the background to this case and more details, from which I've borrowed the following image showing the offending search terms:

This isn't the first time Google has been sued over autocomplete suggestions - it recently lost similar cases in France and Italy - and the case raises a fundamental issue as to whether Google should be treated as responsible for the suggestions which it claims merely reflect the most popular user queries. Undoubtedly (if the case makes it to trial) Google will rely heavily on the recent English judgment in Metropolitan International Schools v. Designtechnica, in which it was found not to be the publisher of defamatory snippets in search results on the basis that:

When a snippet is thrown up on the user's screen in response to his search, it points him in the direction of an entry somewhere on the web that corresponds, to a greater or lesser extent, to the search terms he has typed in ... it is for him to access or not, as he chooses. [Google] has merely, by the provision of its search service, played the role of a facilitator.

In this case, however, it may be that Google will face difficulties in running that defence. Looking at both Metropolitan International Schools and the recent Italian judgment, three factors seem likely to be important. First, unlike the case of search results, autocomplete suggestions do not merely reflect what is elsewhere on the web but are created by Google (albeit by algorithm). Second, as Google actively censors the autocomplete system it makes it harder to argue that there is no "human input" into the results - a factor which was critical in Metropolitan International Schools. Third (although the judgment isn't entirely clear on this point) the court in Metropolitan International Schools found it signficant that Google could not block all searches against particular terms without also blocking a great deal of unrelated material. In this case, however, it would seem quite simple to remove a particular autocomplete result for this hotel, ruling out any argument based on practicability or collateral damage.

Incidentally, I see from the High Court search that the action is listed as QUINN [SENIOR] & ORS -V- GOOGLE IRELAND LIMITED 2011/4784 P. I was surprised to see Google Ireland named as a defendant, as I understand that Google's search functions are run by Google Inc., California - a distinction which tripped up the Red Cross in their action seeking to identify a blogger hosted on Google's blogspot. In that case the Red Cross eventually had to seek the permission of the court to substitute Google Inc. as the defendant, and I'll be interested to see whether this happens in this case also.

Irish Press Council now taking online only sites as members

The Press Council published its annual report for 2010 yesterday. It details some interesting cases (1|2) involving reporting which reuses material from social networking sites and blogs, but more importantly for Irish websites the launch also revealed that the Press Council is now taking online only media as members.

From the Irish Times:

With the increase in news gathering and reporting increasing on the internet, chairman of the Press Council Daithí Ó Ceallaigh said web-based organisations or publications could benefit by joining its independent regulatory regime.

“When this happens – and at least one new web-based organisation has already been accepted as one of the recent new members of the council – we are ready to play a positive role in light of our own experience in support of the highest possible journalistic standards.”

This is a significant development. Membership of the Press Council and adherence to its Code of Practice offers periodicals a significant benefit in establishing a defence of fair and reasonable publication on a matter of public interest. The narrow definition of "periodical" in the Defamation Act 2009, however, created doubt as to whether an online-only publication would qualify for membership.

Eoin O'Dell took the view that it wouldn't (a view which I shared) though the last Minister for Justice later took a contrary view, claiming that:

The question of whether publications existing "on-line" only, either now or in the future, wish to come under the umbrella of the Press Council - and abide by its code of practice - is a matter for those publications. Nothing in the Defamation Act precludes this. Neither have I noticed any express limitation of jurisdiction in the Articles of Association of the Press Council on membership by on-line publications. Some recent commentary from media experts seems to have missed this point.

The Press Council itself has now clearly taken the position that online-only periodicals are eligible for membership, which will certainly cause a number of Irish websites to consider joining.

One note of caution, however: it will ultimately be for a court to determine whether an online-only site is a "periodical" for the purposes of the defence of fair and reasonable publication. The views of the Press Council on this point will be relevant but certainly not conclusive.

Firms hampered by failure to keep law up to date with internet age

I have an opinion piece in today's Irish Times arguing that the Taoiseach's recent comments about reform of copyright law create an opportunity for wider reform. Unfortunately, the Irish Times doesn't allow inline links, so here's a version with relevant links included:

Firms hampered by failure to keep law up to date with internet age

Much of the Irish law governing the internet is archaic, restrictive and hampers growth, writes TJ McIntyre

IN A speech this week, the Taoiseach announced support for a review of European and Irish copyright law, stating “it is time to review our copyright legislation, and examine the balance between the rights holder and the consumer, to ensure that our innovative companies operating in the digital environment are not disadvantaged against competitors”.

This is a welcome development for the Irish internet industry, which has argued for some time that copyright reform would be desirable.

It follows a seminar last month, hosted by Digital Rights Ireland, Google and the Institute of International and European Affairs, where speakers from businesses such as Boards.ie, UPC and Google pointed out the practical problems copyright laws can create.

In particular, one of the reasons why the US has been so successful at encouraging internet innovation is that US copyright law includes a doctrine known as fair use. This permits the use of portions of a copyrighted work so long as the normal economic exploitation of the work is not undermined.

Irish law, by comparison, has no equivalent to the flexible doctrine of fair use.

Instead, there is a finite and restrictive list of exceptions to copyright, hampering the ability of Irish businesses to develop new forms of internet services.

Reform of the law – if it addresses this and similar issues – will help promote the growth of new businesses in this area and avoid the loss of jobs to more internet-friendly jurisdictions, such as the US.

However, this is not a uniquely Irish development. It follows action at European Union level and in other countries such as Britain. Last month, David Cameron said UK copyright laws were out of date and needed to be reviewed to “make them fit for the internet age”.

The Irish Government will have to move quickly to avoid falling behind Britain and other European bodies that have taken the initiative in this area.

It will also be important that copyright not be considered in isolation, as it is just one of a number of areas where Irish businesses have been hampered by a failure to keep the law up to date with the internet.

After a flurry of activity leading up to the Electronic Commerce Act 2000, there has been relatively little reform since.

Consequently, much of the Irish law governing the internet is now a decade old – an eternity in the online world – and is no longer suited for current conditions.

One of the most important areas in need of reform is defamation. A significant risk faced by Irish internet companies is that of being sued for what users say. Under the law as it stands, businesses such as online forums, auction sites and even search engines face a real likelihood of legal action being brought against them, even though they were in no way responsible for what was said and behaved reasonably.

European law does recognise the injustice of this, and provides some protection for these intermediaries. Ireland, however, has adopted a very limited implementation of this European law, so Irish online businesses are much more exposed than those in other jurisdictions.

Remarkably the Defamation Act 2009 ignored proposals for reform of the law in this area.

If the Taoiseach is to succeed in his stated aim of ensuring that Irish businesses are not disadvantaged against competitors, then it will be important to tackle online defamation also.

Irish blogger agrees €100,000 settlement for libel

The Sunday Times has details of the settlement which was obliquely mentioned in Forbes last week:

A blogger has agreed a €100,000 settlement after libelling Niall Ó Donnchú, a senior civil servant, and his girlfriend Laura Barnes. It is the first time in Ireland that defamatory material on a blog has resulted in a pay-out.

Barnes, an American book dealer, made a profit of up to €800,000 in 2005 from selling a cache of James Joyce papers to the state. One year later she began a relationship with Ó Donnchú, an assistant secretary in the Department of Arts, Sports and Tourism.

In December 1, 2006, a blogger who styles himself as Ardmayle posted a comment about the couple and the sale of the Joycean manuscripts under the headline “Barnes and Noble”. Following a legal complaint, he took down the blog and in February 2007 he posted an apology which had been supplied by Ó Donnchú’s and Barnes’ lawyer, Ivor Fitzpatrick solicitors.

“I subsequently discovered that these remarks were inaccurate,” Ardmayle said. “I unreservedly apologise to both Laura Barnes and Niall Ó Donnchú in respect of this post.”

However, the pair subsequently issued separate proceedings. It is understood that the €100,000 settlement was agreed shortly before the case was due before the High Court. A full defamation trial before a jury can cost €700,000-€800,000 in legal costs for both parties.

The blog, still active at http://ardmayle.blogspot.com/, is in the form of a personal diary with observations on the arts, literature and sport. The author is not identified, and the litigants may have got his details through his internet server provider (ISP).

The settlement was subject to a confidentiality agreement, which forbids the blogger from speaking about it publicly. Neither Ó Donnchú nor Barnes responded to invitations to comment.

The Independent has more on the case from 2007 when proceedings were issued, and Sean Murphy has also produced a summary of the issues involved.

One interesting aspect of this case, as Mark points out, is the fact that the damages appeared to be quite high given that the blog in question was very low profile:

John Burns’s piece in today’s Sunday Times on the blogger who paid out €100,000 for libeling someone is interesting, and not just for bloggers. The blog which is the subject of the story is so obscure that Google finds zero – repeat zero – inward links. This is despite it having been operational since May 2005 (contrast that with TheStory; we’ve only been going since October or so, yet there are over 800 inward link results to the front-page alone). Additionally, the writer’s profile has only been viewed 3,000 times since the blog opened – or less than once per day.

So it’s a little-known, to say the least, blog.

Leaving aside the specifics of the case, perhaps this illustrates a more general point highlighting the importance of keeping good server logs.

The level of damages in defamation reflects the extent of publication – i.e. the extent to which the defamatory material was actually read. This is not (despite the best efforts of plaintiffs’ lawyers) the same as the extent to which it might have been read. Consequently (leaving aside other factors such as the gravity of the allegations) damages should be greatly reduced where the audience can be shown to be negligible. Potential readability worldwide notwithstanding.

Unfortunately, in the absence of server logs, it is going to be very difficult to rebut a plaintiff who claims that the material appeared quite high in search engine rankings, may have been read worldwide, etc. Consequently a defendant in that position is likely to be on the back foot, especially where a judge assumes that availability online automatically equals a mass audience.

Hosting defence applies to user comments: English High Court

In a significant decision, Karim v. Newsquest Media Group, Eady J. has accepted that online newspapers can rely on the E-Commerce Directive hosting defence in respect of user comments, meaning that they should generally be exempt from liability in respect of those comments provided that they take them down when notified that they are potentially defamatory.

The plaintiff in this case was a solicitor who had been struck off following mishandling of client funds. The defendant's websites reported the proceedings before the Disciplinary Tribunal in an article titled "Crooked solicitors spent client money on a Rolex, loose women and drink", and a number of users made further allegations about the plaintiff in the comments attached to the article. The defendant took exception to both the article itself and the user comments and issued proceedings against the defendant without prior notice. On receiving the proceedings, the defendant took down the articles and comments the same day.

The plaintiff's case comprised two components - the article and the attached user comments - and the defendant applied for summary judgment in respect of both.

As regards the article, the court had no difficulty in finding that it was covered by absolute privilege as a fair, accurate and contemporaneous report of legal proceedings under s.14 of the Defamation Act 1996, and that portion of the claim was struck out.

As regards the user comments, the defendant argued that it was protected by the hosting defence, as transposed into UK law by Regulation 19 of the Electronic Commerce (EC Directive) Regulations of 2002. This provides:

Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where -

(a) the service provider -

(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or

(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and

(b) the recipient of the service was not acting under the authority or the control of the service provider.

Although no authority was cited on this point, Eady J. stated that he was "quite satisfied" that the defendants could rely on this defence, going on to hold that the users were not acting under the "authority or control" of the defendant. This portion of the claim was therefore struck out also.

This appears to be the first time that an English court has dealt with this question, though it reaches the same result as the Irish decision in Mulvaney v. Betfair (t/a The Sporting Exchange).

As with that decision, it is good news for online publishers dealing with user-generated content, suggesting that the courts will adopt a wide interpretation of the hosting defence. But as with Mulvany v. Betfair, it might be unwise to celebrate yet. This is a first instance decision (albeit a decision of one of the most prominent judges in this field) and was based on the arguments of one side only. It does not consider the arguments which might be put forward to limit the hosting defence, and rather glosses over the question of whether posters in a moderated forum could be said to be acting under the authority or control of the host.

Experience from the US has shown that online immunities tend to be extensively challenged as plaintiffs seek to work around them. Section 230 of the Communications Decency Act has, in particular, been repeatedly litigated and occasionally evaded by plaintiffs. (Eric Goldman analyses some of the approaches taken by plaintiffs: 1|2|3.) It's safe to say that similar challenges to the hosting immunity are likely in Europe until such time as the European Court of Justice issues a definitive interpretation of its scope.

(Via The Register)

Mulvaney v. Betfair - High Court holds that hosting defence is available to chatroom operators

Can a chatroom operator rely on the hosting defence under the E-Commerce Directive? In the first Irish case to consider the scope of the Directive and the Irish implementing Regulations the High Court has held that the answer is yes - an answer which may have significant implications for Irish sites hosting other types of user generated content.

The case - Mulvaney v. The Sporting Exchange (trading as Betfair) - involved plaintiffs who claimed to have been defamed by material posted on a Betfair chatroom by Betfair clients. The plaintiffs brought proceedings against the posters themselves and also against Betfair as the operator of the chatroom, claiming that Betfair was therefore liable as a publisher of the defamatory statements.

Betfair sought to rely on the hosting defence in Article 14 of the E-Commerce Directive as implemented by Regulation 18 of the implementing Regulations. Two issues therefore arose: whether Betfair could rely on this defence notwithstanding the gambling exclusion in the Directive / Regulations, and whether in relation to the chatroom Betfair could be said to be a host.

As regards the gambling issue, the court took the view that whether or not Betfair's main function (as a betting exchange) was covered by the exclusion, the chatroom was not directly connected with that activity and as such it could be treated as a distinct activity for the purposes of the Directive.

The court then considered whether Betfair could be considered to be a host in respect of the chatroom, or more precisely whether it was an "intermediary service provider who provides a relevant service consisting of the storage of information provided by a recipient of the service". Here the court relied on Bunt v. Tilley to hold that Betfair was an "intermediary service provider" and, in a remarkably short ruling, held that it fell within the hosting defence:

5.10 Betfair submitted that, in the present case, it is the third parties who provided the information in question, i.e. the allegedly defamatory comments, and that Betfair stored this information on its servers that hosted the Chatroom. Betfair submitted that this service was provided at a distance by electronic means and at the individual request of the recipient of the service. It is submitted by Betfair that it, therefore, acted as "hosts" of that information for the purposes of Regulation 18 of the 2003 Regulations.

5.11 At Recital 20, the E-Commerce Directive states that:-

“The definition of 'recipient of a service' covers all types of usage of information society services, both by persons who provide information to open networks such as the Internet and by persons who seek information on the Internet for private of professional reasons.”

5.12 It seems to me that this provision clearly covers such use of the services provided by the defendant as was made by the third parties in these proceedings. Furthermore, at Recital 18 of the E-Commerce Directive, it is provided, inter alia, that:-

"Information society services span a wide range of economic activities which take place on-line; these activities can, in particular, consists of selling goods on-line; activities such as the delivery of goods as such or the provision of service off-line are not covered; information society services are not solely restricted to services giving rise to on-line contracting but also, in so far as they represent an economic activity , extend to services which are not remunerated by those who receive them, such as those offering on-line information or commercial communications, or those providing tools allowing for search, access and retrieval of data; information society services also include services consisting of the transmission of information via a communication network, in providing access to a communication network or in hosting information provided by a recipient of the service."

5.13 There is no case law dealing directly with the question of whether Regulation 18 covers the provision of Chatroom facilities. However the E-Commerce Directive appears to apply to chatrooms if they are hosting information provided by a recipient of the service and available to other users of the service. In addition, the corresponding Article to Regulation 18 (i.e. Article 14), has been recognised in the Report from the Commission to the European Parliament on the application of the E-Commerce Directive, where at page 12 , it states:-

"In particular, the limitation on liability for hosting in Article 14 covered different scenarios in which third party content is stored apart from the hosting of websites, for example, also bulletin boards or 'chatrooms'."

5.14 As the service provided by Betfair, through its Chatroom, clearly falls within the meaning of "relevant service" as defined by the 2003 Regulations, it follows that Betfair, in providing this service, is a "relevant service provider" and so an "intermediary service provider" within the meaning of the 2003 Regulations. Betfair is, therefore, entitled to the benefits of Regulations 15 and 18 of the 2003 Regulations.

6. Conclusions

6.1 ... For the reasons which I have just sought to analyse, I am also satisfied that the provision of a chatroom service comes within the definition of an intermediary service provider contained in the 2003 Regulations, and that the provision of that service to its subscribers by Betfair constitutes the provision of a relevant service consisting of the storage of information provided by a recipient of the service within the meaning of the same Regulations.

6.2 If follows that Betfair are, in principle, entitled to the protection of the E-Commerce Directive in these proceedings. In order to be able, successfully, to defend the proceedings on that basis it is, of course, also necessary that Betfair be able to establish, as a matter of fact, in each individual case, that the conditions concerning knowledge and expeditious action set out in subparas (a) and (b) of Article 14 of the E-Commerce Directive are met. Whether that can be established on the facts of this case is a matter which did not arise on this preliminary hearing and will fall to be determined at the trial.

This conclusion - that chatroom operators are hosts as regards user comments - appears to me to be correct, but the underlying reasoning is rather scanty. (I should say that this is not a criticism of the judge, who can only decide on the arguments raised by the parties.)

There's no discussion, for example, of the fact that the chatroom was subject to terms of use and was (apparently) moderated by Betfair - a surprising oversight, considering that it might have been the basis for an argument that the posters were acting under the control of Betfair which, if successful, would have ruled out the hosting defence. (See e.g. the analysis of Lilian Edwards in respect of eBay's "control" over its users.)

Equally, there's no reference to the related argument that the hosting defence is intended to cover purely technical (and essentially passive) storage of information, and is lost when a provider exercises a greater degree of control over the information which users provide. Goldstone and Gill, for example, suggest that:

The recitals to the Directive are narrow in scope and state, for example, that the activities to which the exemptions apply are 'limited to the technical process of operating and giving access to a communication network' and are of a 'mere technical, automatic and passive nature'. The recitals do not suggest that the Directive intended the hosting defence also to apply to storage of information by Web site operators such as UGC Web sites.

Whether correct or not, it is remarkable that this argument doesn't appear to have been made in this case.

Finally, there's no reference to the cases in other jurisdictions which have challenged the scope of the Article 14 hosting immunity. (Lilian Edwards has some examples here and more recently here.)

Consequently, although this decision will give some comfort to Irish chatroom operators, it shouldn't be given too much weight and is unlikely to be the last word on the scope of the hosting defence in Ireland. We may have to wait for a more fully reasoned judgment (or guidance from the ECJ) before we can definitively say what rules apply to Irish sites which host user generated content.

For more on this decision see A&L Goodbody | Olswang | Sunday Business Post.

Fake Facebook profile case - Full decision now available

Remember the libel action brought by a businessman against a former friend who created a false Facebook profile under his name? The full text of that decision is now available on BAILII as Applause Store Productions Ltd and Firsht v. Raphael. The bulk of the decision is unremarkable and deals with the (unconvincing) attempts by the defendant to deny that he was responsible for creating the page, but there are some interesting comments showing how judges are putting a figure on damages where material is only available for a short period of time to a relatively small number of people:

Ultimately, I have to approach the question of damages in the same way as a jury would, giving a verdict without a reasoned judgment. I bear in mind, of course, that the profile and group were only available on Facebook between 19th/20th June and 6th July 2007, when Facebook appears to have taken the material down at Mr Firsht's request. Given the times when the material was put up and taken down, that is a period of 17 days (for the profile) and 16 days (for the group). I bear in mind also the limited extent of proved publication, but I accept that Facebook is a medium in which users do regularly search for the names of others whom they know, and anyone who searched for the name Mathew Firsht during those few days will have found the false group without difficulty. In my view, a not insubstantial number of people is likely to have done so. By that I have in mind a substantial two-figure, rather than a three-figure, number. I also accept that the Defendant has increased the hurt and upset of Mr Firsht by the allegations which he rashly made in his original Defence and by his persistence in a defence which I have founded to be built on lies, which has compelled Mr Firsht to give evidence and face lengthy cross-examination in a public trial.

The libel is, as Ms Skinner rightly said, not at the top end of the scale, although it is serious enough to say of a successful businessman that (as I have found the words to mean) he owes substantial sums of money which he has repeatedly avoided paying by lying and making implausible excuses, so that he is not to be trusted in the financial conduct of his business and represents a serious credit risk. I do take into account also the effect on Mr Firsht of the unpleasant allegations against him which the Defendant made in his original Defence, and the fact that the Defendant has persisted to trial in a case which I have found to be no more than a lie. It seems to me that a proper award for the libel of Mr Firsht, to include an element for aggravation of damage, is £15,000. The pleaded meaning in the case of the company - against which the allegations of debt and dishonest prevarication are not directly made - is just the consequential meaning, that as a result of Mr Firsht's conduct the company is not to be trusted in the financial conduct of its business and represents a serious credit risk. It seems to me that a substantially lower award should be made in respect of the company, and in my judgment the right figure is £5,000.

Defamation, search engines and the E-Commerce Directive

I'm quoted in the Sunday Tribune on the impact of Irish defamation laws on search engines. Unfortunately I have to quibble slightly with how the law is described in the article, which may be due to a breakdown in communications between myself and the author. Full text and my comments follow:

GOOGLE is facing a landmark defamation suit in Britain that could have repercussions for Ireland's attractiveness as a destination for online businesses.

The search giant has been sued by London businessman Brian Retkin, who claims the US company is responsible for providing links to inaccurate or malicious information about him and his business posted anonymously on the internet.

Irish legal observers, and Google's Dublin based legal eagles at its European headquarters, are watching the case unfold as defamation laws in the Republic are significantly less up-to-date than English laws on online libel.

The main difference is that internet service providers and online product providers such as Google have specific legal devices available to them under British defamation law and the EU's e-commerce directive, whereas in Ireland the laws have not been updated to take account of the information revolution.

"It's ridiculous because we're advertising ourselves as a knowledge economy and aiming to attract more companies like Google and Ebay here, but we're not giving them the legal protection they need in terms of defamation, " says barrister and digital rights campaigner TJ McIntyre.

The law lecturer claims there is a danger of Dublin courts attracting "libel tourism", much as London attracts so-called divorce tourism because of the reputation of English judges in awarding large pay-outs.

"Ireland's defamation laws are rooted in the middle of the last century, and even if [Michael] McDowell's proposed reforms in his defamation bill went through there would still be no mention of specific defences for online publishers."

The Retkin allegations are believed to have originated in America, where it is much more difficult to succeed in a libel claim because US judges have ruled that search engines and other internet service providers are immune from defamation lawsuits.

In Ireland, an online publisher could be treated as a disseminator of libel in much the same way as a newsagent can theoretically be sued for distributing newspapers containing defamatory content.

With Google linking to 11.5 billion web pages, potential financial damages in an Irish court could be staggering.

A spokesman for Google would not comment on the specifics of the case. "The company would reiterate that is has no connection or ability to direct or influence the content of web pages which may be shown as links within any given set of search results."

My quibble is with this passage:

[D]efamation laws in the Republic are significantly less up-to-date than English laws on online libel.

The main difference is that internet service providers and online product providers such as Google have specific legal devices available to them under British defamation law and the EU's e-commerce directive, whereas in Ireland the laws have not been updated to take account of the information revolution.

In fact, Irish and UK laws on intermediary liability are quite similar - both the Irish and UK Regulations adopt a minimalist approach to implementing the E-Commerce Directive (which has been transposed into Irish law, contrary to what the article might suggest). The problem for search engines and other intermediaries is that the E-Commerce Directive does not go far enough. Under the Directive a limited immunity is given to three classes of intermediaries - caches, hosts, and mere conduits. This, however, leaves other internet intermediaries out in the cold. Search engines, providers of hyperlinks and content aggregators are analogous to hosts or mere conduits (they facilitate access to material but do not control it or have knowledge of its content) - but they do not enjoy comparable protection under the Directive.

Several European countries have decided that the Directive is too narrow - Austria, Hungary, Portugal and Spain, amongst others, have created additional protections for search engines. The European Commission has also encouraged Member States to extend protection to other internet intermediaries. The risk for Ireland is that we may become less attractive as a destination for these businesses if Irish law does not follow suit. The Defamation Bill 2006 should have provided an opportunity to consider this issue - but that Bill would not have changed the law in this area had it been enacted.

On the libel tourism point, possibly the best Irish example is USA Rugby Football Union Limited v. Ivan Calhoun. In that case, although the plaintiffs ultimately failed to have the Irish courts accept their case, they succeeded in subjecting the defendant to two years of litigation (in both the Circuit Court and High Court) despite the lack of any real connection to Ireland, and despite the fact that the material published would not have been actionable in the United States.

"Mumsnet" case shows problems with forum liability for member comments

The Telegraph reports:

The controversial childcare expert Gina Ford today dropped her threat to sue the parenting website Mumsnet after a year-long dispute was settled out of court.

Lawyers for Ms Ford, author of The Contented Little Baby Book, agreed to halt legal action after the popular website agreed to pay a contribution of her costs and prevent “personal attacks” on the site.

The agreement brings to an end a bitter dispute that began more than a year ago.

Some of Mumsnets’ 60,000 members used messageboards to attack Miss Ford’s famously rigorous childcare methods.

A sarcastic comment last August accused her of “strapping babies to rockets and firing them in to south Lebanon”.

Ms Ford, 52, a strong advocate of routine, said the remarks amounted to “serious and offensive libel” and caused her huge distress.

She began legal proceedings against the site, which receives up to 15,000 internet posts a day.

Justine Roberts, the founder of Mumsnet, in turn accused Miss Ford of conducting a “menacing” campaign to stifle negative comment, which Ms Ford strongly denied.

But after a series of legal letters and an eight-week mediation period, both parties announced today that the dispute had been settled.

The exact terms of the agreement are confidential, but it is understood that Mumsnet has apologised and made a contribution to Gina Ford’s substantial legal costs to protect its individual members from legal action.

It has also agreed to abide by its own “personal abuse” policy, preventing members from making unnecessary attacks on individuals. The ban on discussing Miss Ford’s methods has also been lifted.

Cases such as this highlight the draconian nature of English (and Irish!) libel laws, which in effect require bulletin boards and other social sites to police the actions of their users or risk being crippled by the costs (let alone the damages) of a libel action. This is difficult enough on a low-traffic site, let alone one which receives 15,000 posts a day. Quite apart from the chilling effect on freedom of expression, this also presents a competitiveness problem - why set up operations in Dublin or London when you can avail of a much more publisher friendly jurisdiction in the United States?

[Update] The Mumsnet site has now put up its own perspective on these issues:

Like many other website publishers, we have long maintained that libel law has not caught up with the digital age with the result that freedom of expression is being unacceptably curtailed. Now that we have settled our long running dispute with Gina Ford, we intend to campaign energetically for a review of how libel legislation applies to the internet.

Put crudely, the current legal situation is the rough equivalent of trying to use a set of railway signals to control the air traffic over Heathrow – the principles may be fine but different forms of communication, just like different forms of transport, require a different approach. Currently the law regards a bulletin board just as it does a newspaper or a book.

In fact the Law Commission, the body which advises the government on legislation, recognized this problem in 2002, warning that a rethink of defamation law was needed to protect freedom of speech online. At the time Hugh Beale QC, one of the law commissioners, warned: "When a website carries material to which someone objects - rightly or wrongly - it is often easier to complain to the ISP than to the author. The problem is that the law puts ISPs under pressure to remove sites as soon as they are told that the material on them may be defamatory. There is a possible conflict between the pressure to remove material, even if true, and the emphasis placed on freedom of expression by the European Convention of Human Rights."

Since then, however, no changes have been made to the law governing defamation on the internet and we believe website publishers running bulletin boards now find themselves in a similar position to that described by Mr Beale. Faced with any complaint about a bulletin board posting, website publishers, frequently small businesses or individuals with limited resources, find themselves with little choice but to remove the posting, with obvious consequences for freedom of speech.

Mumsnet has this week written to the Department of Constitutional Affairs urging the government to reconsider this area in its forthcoming consultation on defamation.

In particular we have asked to government to address these points:

1. Does holding websites liable for postings by users on their bulletin boards have the effect of unacceptably curtailing freedom of expression?
2. Is a website which swiftly removes material following a complaint protected from liability for the posting? And how swift is swift?
3. Should the different nature of bulletin board communication be taken into account in assessing whether a complainant has been defamed? For instance if a single poster makes a defamatory comment but is immediately rebutted by a large number of users should the resulting thread be considered as defamatory? Or should there be a requirement to consider bulletin board conversations in the whole?

We would stress that we accept that individuals have a right to protect their reputations. However this right always has to be balanced against the rights of others to freedom of expression. At present we believe that this balance is not struck in the right place.

The E-Commerce Directive was intended to make online business easier by removing some of these liability fears. Unfortunately, it was drafted narrowly to apply to mere conduits (telecommunications providers), caching and hosting only. This appears to leave other online intermediaries (such as search engines, bulletin boards and content aggregators) out in the cold, unless they can bring themselves within the hosting defence. Might a bulletin board be able to rely on the hosting defence in respect of user posts? I have been unable to track down any discussion of this precise issue, but Lillian Edwards analyses a related issue in respect of eBay liability for user advertisements here.

Blogger beware: Blog libel and privacy action settled for £150,000

The Guardian reports that an action by Martin Sorrell and Daniela Weber for libel and breach of privacy by way of email and blog has settled without admission of liability for a total of £150,000 - £120,000 to him, £30,000 to her. The level of the settlement (which included a nominal sum for the plaintiffs' costs) appears to reflect the plaintiffs' difficulty in linking the anonymous material to the defendants.

Background to the case:

Two former business partners of advertising boss Sir Martin Sorrell launched a "vicious" campaign against him on blogs and emails, a court heard today.

One of his former associates referred in a private email to the WPP boss as a "mad dwarf" and described the company's former chief operating officer in Italy as a "nympho schizo", the High Court in London was told.

Marco Benatti, WPP's former manager in Italy, and his lieutenant Marco Tinelli, were spurred to publish defamatory remarks after Sir Martin sacked Mr Benatti over allegations of financial irregularities at WPP's Italian business, Sir Martin's barrister said.

Opening his case at a libel and invasion of privacy trial, Desmond Browne QC said the two men had taken "countermeasures" against Sir Martin and WPP's chief operating officer in Italy, Daniela Weber. ...

The "counter-measures" against Sir Martin included a blog that appeared in March last year containing a "host of libels" against the WPP boss, Mr Browne said.

Although the blog was taken down after three days, another one appeared a month later, he said.

"The day that Sir Martin managed to get the blog taken down, Mr Benatti emailed his friends saying that blogs were like mushrooms, they sometimes pop up again the next time it rains," Mr Browne said.

"What could be a stronger pointer to Mr Benatti's knowledge of what was going on and his being the architect of the whole exercise than that email shortly after the blogs had been taken down suggested that blogs were like mushrooms?"

Mr Browne said the other "countermeasure" was a series of emails that included a "vicious Jpeg image grossly intruding into the privacy of Sir Martin and Ms Weber".

"Naturally it would be to intrude further to even start to describe them. We say Mr Tinelli was directly involved in the dissemination of that vicious image.

"There is no doubt that he felt just as bitterly towards Sir Martin and Ms Weber as did his boss, Mr Benatti. I say 'no doubt' because on the very morning of the day the images were sent out by email he referred to them as the mad dwarf and the nympho schizo."

Mr Browne said that the two men had taken "elaborate steps to cover their tracks" but that computer evidence implicated them.