Blog Post

The Defamation Act 2009 was hugely controversial for the blasphemy offence it created. Lost in the noise, however, was the fact that it did very little to improve the position of online speech.

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.