Before the draft Bill was published, we identified several areas which needed to be addressed to protect freedom of expression for internet users. Unfortunately, only one of these areas was ultimately covered by the Act – the introduction of a single publication rule (which means that internet users are less likely to be at risk of being sued for older material). Other areas – such as the position of hosts – were left unreformed.
In an opinion piece in today’s Sunday Times we argue that this is not just bad for fundamental rights but also bad for business. Here’s an excerpt:
Many plaintiffs will sue not the person who wrote the defamatory material but the internet business which displayed it. This may be because they cannot identify the author or because the author doesn’t have a bob. Either way, it presents a problem for online businesses in Ireland, which face the risk of substantial damages for what users say, even though they are not responsible for what is said.
Some providers, such as chatrooms and forums, do have limited protection under European law, giving them immunity from damages — provided they act quickly to remove defamatory material when they become aware of it.
But there is no guidance as to what is meant by being “aware” of defamatory material. This lack of certainty discourages internet providers from taking responsible steps to monitor user comments for fear that, if they do, they will be deemed to be aware of the content and therefore liable. It also creates a problem when someone makes a vague complaint and doesn’t specify what is defamatory. The only solution may be to remove all material referring to them.
The result of this limited immunity is often privatised censorship, with internet hosts feeling obliged to remove users’ comments in response to legal threats. Simple economics encourage this. The cost of legal advice to determine whether material is defamatory, and the risk of liability, means that the safest response is taking down content or closing off debates. Boards.ie felt compelled to ban all discussion of MCD events after the concert promoter took a libel action over users’ posts about the Oxegen festival.
Bloggers are also affected. The Society of Homeopaths, for example, recently took offence at something written by Andy Lewis on his Quackometer website. Lewis was prepared to stand firm over his comments but, rather than sue him, the society instead threatened the web-hosting company, which promptly took down his blog.
All these problems were identified by a government-appointed legal advisory group on defamation in 2003, which recommended that any reform of Irish law should improve the position of online providers. Surprisingly, however, the Defamation Act 2009 focused on the traditional media and largely ignored the recommendations relating to online defamation.
This leaves Ireland trailing behind other jurisdictions. Since 1996, the United States has given internet providers a defence in respect of material written by users. So have many EU countries, which went further than European law requires. Ireland, however, exposes internet intermediaries to a much greater business risk of being held liable for material they did not produce.
We have been successful in attracting the likes of eBay, Facebook and Google. It would be unfortunate if failure to reform the law were to risk deterring other online businesses from setting up here.
None of these points are original. Eoin O’Dell, who was a member of the Legal Advisory Group on Defamation, has already highlighted these problems, saying that it is inexplicable and indefensible that the 2009 Act neglected the internet. However, until there is further reform it will be important to keep this issue on the agenda.
Many thanks to Adam Maguire, writing in the Sunday Business Post, for covering our concerns about Irish libel laws and their impact on free speech online. We’ll be doing our best to secure greater protection for online publishers in the new Defamation Bill. Excerpt:
The upcoming case between popular Irish discussion site boards.ie and MCD, whose solicitors served legal papers on the website’s owners earlier this month, has brought attention to the way the law in Ireland applies to online media, specifically in regard to defamation and anonymity.
While many believe that hiding your name or other personal information will protect you, this is not the case.
‘‘Anonymity online is an illusion – it only takes a day in the High Court to get someone’s identity,” said McIntyre.
Irish law holds the publication owner responsible for the content in its publication, regardless of the author.
In an online context this means that comments published in a public forum or the comment section of a blog will be treated as the comments of the site owner, even if they are not.
The law is a great disincentive to doing business online – ‘‘People won’t set up websites if they think they will be held accountable for what other people say on their site,” said McIntyre.
‘‘It’s not financially feasible for small companies to risk going to court like that. Even if you win, you will be greatly out of pocket as a result of it.”
The internet does offer more covert avenues for people seeking to have content removed, however. As eCommerce legislation rules the hosting company liable if they are aware of any wrongdoing upon which they fail to act, most such companies will pull content as soon as a complaint is made against them.
McIntyre feels the willingness to pull content without investigating it first is a major problem and one that has no legal recourse for the content owner.
‘‘The situation is ripe for abuse…it’s a form of privatised and cheap censorship that’s quicker than going to court,” said McIntyre.
In an experiment by Dutch lobby group Bits of Freedom, the text of an out-of-copyright book was published on accounts across ten different ISPs. The group then contacted each ISP pretending to be the copyright holders and demanded the content be removed.
Seven of the ten complied immediately.
In the USA, the situation is different: while an ISP is obliged to immediately pull content that receives a complaint, they must then contact the content owner about the decision.
If the owner is willing to stand by their content or comments, then it can be put online again. Any subsequent legal battle will only be between the content owner and the complainant – the ISP is immune from prosecution.
Whatever the outcome of the case between MCD and boards.ie, it is sure to set some precedent.
Regardless of that, McIntyre feels that more can be done to make sure the law is not used as a weapon to silence people who have done nothing wrong.
‘‘Hopefully the case will highlight the need for greater protection for online publishers and the greater need to encourage free speech online,” he said.
According to the Irish Times the Cabinet has decided to proceed with a new Defamation Bill. The text of the Bill is yet to be published, but there is concern that (if it follows previous recommendations) it may focus too much on the traditional media while leaving internet publishers out in the cold.
In particular, it’s not clear whether internet publishers will be able to sign up to the proposed Press Council, to benefit from the new defence of reasonable publication, or whether they would be required to establish a code of conduct or fairness procedure to rely on this new defence.
TJ wrote an editorial on this in the November 2005 Commercial Law Practitioner and (with the kind permission of the publishers) the following is an expanded version of that piece.
Defamation Reform: the Impact on Internet Publications
The recent death of Liam Lawlor and the inaccurate and hurtful reports carried by some newspapers about the circumstances of his death have added weight to calls for greater regulation of the Irish press. Reform has been in the offing since the Report of the Legal Advisory Group on Defamation in March 2003, and heads of a Defamation Bill reflecting that Report have now been agreed with the Bill now expected to be published before Christmas.
It is difficult to forecast precisely what that Bill will say, particularly as the Minister for Justice has already indicated his intention to depart from some of the recommendations made by the Legal Advisory Group. However, from the Minister’s most recent comments, it seems likely that the Bill will create a new defence of “reasonable publication” and will provide for statutory recognition of an independent Press Council. This body will draw up a code of standards and a complaints procedure to be administered by an Press Ombudsman. Subscription to the Press Council would be voluntary; however, to avail of the new defence of reasonable publication, a publication would either have to subscribe to the Council or would have to show that it operated “an equivalent fairness regime … [or] an equivalent and publicised code of conduct”.
This proposed reform has already proved controversial. In particular, the proposal to establish a statutory Press Council has split the Irish newspaper industry, with some publishers (notably the Independent Newspapers group, News International and Associated Newspapers) opposed while other interests (such as the Irish Times, the National Union of Journalists and the umbrella group National Newspapers of Ireland) are in favour. However, the debate so far has largely turned on the impact on the print media, with little consideration of the impact which this Bill might have on Internet publishers.
The Press Council
Will membership of the Press Council be available to online-only publishers? There are an increasing number of news services (such as SiliconRepublic.com) which resemble traditional publications except for having a print edition. These publications (as well as other publications such as blogs) may wish to subscribe to the Press Council, particularly where this will help to establish a defence of reasonable publication. Will it be open to them to do so? What criteria will be laid down for a publication to qualify?
The defence of reasonable publication also raises questions. It is not clear from the Minister’s comments when publications which are not members of the Press Council can rely on this defence. In particular, will it be required as a matter of law that they have their own “equivalent code of conduct” to benefit from the defence, or will this merely be one factor which the court can take into account in deciding if a defendant has, in all the circumstances, behaved reasonably? The Legal Advisory Group Report recommended that membership of the Press Council should merely be one factor which could be taken into account, and it would be unfortunate if the Minister went further by making membership, or an equivalent code of conduct, a legal requirement. Such a requirement would place a significant burden on smaller online publishers, and it would make little sense to impose on them a standard designed with large newspapers in mind.
The Single Publication Rule
One reform which will be welcomed by online publishers relates to the time from which limitation periods start to run. As things stand, each individual publication of a libel creates a fresh cause of action. In the case of a web page, this means that each time the page is viewed a fresh tort is committed, so that the limitation period starts afresh. Consequently, online publishers face almost indefinite liability. Suppose that a newspaper prints a story in its print edition in 1997, and on the same day puts that story on its website. In 2003 the Statute of Limitations expires for the print version. However, the newspaper remains at risk of a libel action for the online version of the story indefinitely, as each time it is accessed the six year limitation period begins anew. The new Bill is expected to greatly improve the position of online publishers by introducing a single publication rule, modelled on US law, under which time will begin to run from the date on which the material was first published – which, in the case of online publication, will mean the date on which the material was first made available and not the date on which it was first accessed.
The Hosting Defence – Actual Knowledge and Expeditious Removal
Under the E-Commerce Directive, a defence is available to hosts where:
“(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.”
In practice, though, this defence has caused difficulties. Providers are often nervous as to what degree of knowledge is sufficient to impose liability and if in doubt will err on the side of caution and remove any material which might possibly be defamatory. This is a particular problem when complainants make vague complaints about material hosted by the provider, without specifying the precise material alleged to be defamatory, where the only solution may be to remove all material making reference to the complainant. In addition, providers have often complained that the requirement to expeditiously remove material precludes full examination of the facts of a particular case.
The Legal Advisory Group has recommended that these difficulties should be addressed by providing that a court, in deciding whether or not a provider had actual knowledge, can take into account whether written notice was given, such notice to include the full name and address of the sender of the notice, the location of the information, and details of the defamatory nature of the information. The Group also recommended that the requirement to act expeditiously should be defined so as to allow the provider time to carry out “an investigation as to whether there would be liability in defamation in respect of the matter complained of”. These provisions would, if implemented, significantly improve the position of internet hosts. However, to fully safeguard online speech against baseless threats of legal action it would be desirable to put in place a more detailed “notice and takedown” and “counter notice and put-back” system, along the lines of that established by the US Digital Millennium Copyright Act.
Online intermediaries will also be very interested in the proposals for a new defence of “innocent publication”. This would replace the defence of innocent dissemination and would also tie in with the E-Commerce Directive mere conduit, caching and hosting defences. The Legal Advisory Group recommended that this defence should be available to a person who:
(a) is not the author, editor or publisher of the statement;
(b) took reasonable care in relation to its production; and
(c) did not know, nor had reason to believe, that what they did caused or contributed to the publication of a statement for which there would be liability in defamation.
Surprisingly, though, the Legal Advisory Group appears to recommend that this defence should not be available to the “operators of, or providers of access to, a communication system”, who would be left to their E-Commerce Directive defences only (Head 29 of their Draft Bill). The provision in question is ambiguous, but if this is in fact the case, then this recommendation was presumably motivated by a desire to avoid conflict with the Directive. However, if followed it will strip online intermediaries of their existing innocent dissemination defence and may lead to unusual gaps in the law.
For example, suppose that an ISP puts in place a system blocking access to IP addresses said to be associated with child pornography (as British Telecom is doing with its “Cleanfeed” policy). That ISP then transmits material (produced by a third party and hosted elsewhere) which is alleged to be defamatory. The automated filtering would take the ISP outside the “mere conduit” defence, while the ISP would be denied any innocent dissemination or innocent publication defence under the Legal Advisory Group proposals, notwithstanding that it is not in any way responsible for the material. It would be desirable, therefore, for the Bill to explicitly specify whether online intermediaries can rely on the defence of innocent publication in addition to their E-Commerce Directive defences, or whether these are intended to be mutually exclusive.
On balance the Defamation Bill appears likely to be a welcome development for online publishers. However, the devil is in the detail here, particularly when it comes to the effect on the Internet of measures drafted with the traditional media in mind. We await the Minister’s proposals with interest.