Blog Post

Freedom of Speech is a noble idea – but it is not an absolute right. One such situation where the right is limited is where a false statement about a person is published. Journalists and celebrities alike are well aware of the law when it comes to defamation, but the online community often forgets the legal boundaries placed on Free Speech.

This pamphlet is intended to give an outline of Defamation Law as it applies to online publications, but is not intended as a comprehensive guide. More detailed information is available in leading textbooks on the Law of Torts; in the Defamation Act, 1961; and in the European Communities (Directive 2000/31/EC) Regulations, 2003. This guide is not intended as a substitute for legal advice, and if you think you need to go further than the issues here, you probably need to speak to a lawyer about your own personal circumstances.

What is Defamation?

• Defamation occurs where a false statement is published about a person which tends to lower that person in the eyes of right-thinking members of society. Defamation is a generic term – slander is defamation in a transient form, while libel is defamation in written or permanent (or equivalent) form.

• Defamatory statements include accusations of professional incompetence, or of unethical, illegal or immoral behaviour. Some examples from the Irish Courts include:

– Imputations of sexual impropriety (Sinclair v. Gogarty)

– Wrongly accuse a person of being a sympathiser with terrorism (McDonagh v. Newsgroup)

– Wrongly accuse someone of cheating in a horse race (Green v. Blake)

– Suggest a person tolerated serious crime (DeRossa v. Independent Newspapers)

– Suggest a nightclub proprietor tolerated the sale of drugs on his premises and was a “gay bachelor” (Reynolds v. Malocco)

• It is not necessary for a plaintiff to show that he was in fact lowered in the eyes of others and suffered loss as a result, only that the statement was of a type which tended to do so. This is not a comprehensive list of all possible defamatory statements, but gives a flavour of the range of the defamation definition.

What are the Defences?

Justification

• In a libel action, justification, the truth of the statement, is a full defence. However, it is for the defendant to prove the truth of the statement; all defamatory statements are presumed to be false.

Therefore, if Michael posts his genuinely held belief that, for example, Sarah is incompetent at her job has, prima facie, defamed her, and is required to prove such incompetence in order to use justification as a defence. In practice this is quite difficult. Given that libel actions, alone amongst civil proceedings, are heard in front of a jury, such a defence is high-risk and unpredictable at best. An unsuccessful defence of justification may attract an award of aggravated damages.

Fair Comment

• An alternative defence is the “Fair Comment” defence, although this applies only to matters of public interest. So, for example, while criticism of a Minister for Education would probably have the benefit of the Fair Comment defence, it is uncertain as to whether criticism of an individual teacher would obtain this benefit.

• This defence covers only comment or opinion; not statements of fact.

• Public interest includes comments relating to artistic matters. Legitimate criticism of a work of art is therefore covered by this defence, though personal allegations regarding the artist may not be.

• This defence applies only to comment related to a matter of public interest. Any personal or abusive comments about, for example, a politician would not be considered to be comment on matters of public interest, notwithstanding that the defamed person is in a position bearing on the public interest.

Who is Liable?

Authors

• The primary person who is liable for a defamatory statement is the author. Unless you can avail of one of the defences, you should think very carefully before making that posting.

• Remember that the internet does not afford absolute anonymity and that if you post under a pseudonym or anonymously, you can still be identified via your ISP.

Editors & Publishers

• If you run a site which accepts submissions from authors, by accepting a submission and posting it, you have assumed the position of editor or publisher, and have therefore assumed liability for that posting.

• Likewise, if you run a message board, or a blog with a comment box, you are liable for the content of postings – both yours, and those of others. If you cannot regularly monitor your blog, to ensure that defamatory statements are removed, it may be best not have a comments facility at all. This will depend, of course, on how contentious the subject of your board or blog is

ISPs

Since the coming into effect of the European Communities (Directive 2000/31/EC) Regulations, 2003 a distinction is made between three types of internet provision:

• “Mere conduit” essentially means providing no more than a telephonic network. A service provider who falls within the definition of a “mere conduit” is given immunity and will not be liable for damages or for any criminal sanction as a result of any transmission of information.

• “Caching”. ISPs often keep temporary copies of web pages on their servers so that users can access them more quickly. This kind of “automatic, immediate and temporary storage of information … for the sole purpose of making more efficient onward transmission of the information” will not render an ISP liable for defamatory statements contained in the cached pages. However, such immunity is lost where the ISP does not act quickly to remove a copy of a page when they are aware that the original page has been removed or that its removal has been ordered by a court.

• “Hosting” is the storage of information provided by subscribers. Large companies and organizations are their own hosts, but the sites of small to medium sized organizations and personal web-pages, blogs and discussion board sites will tend to be hosted by an ISP. Under the regulations, hosts are given an immunity from libel liability, which can be lost where a host is aware of defamatory content and fails to act expeditiously to remove or block the offending content.

Best Practice

• While a web host may, having received a complaint, examine the site and decide that the statement is not defamatory, most err on the side of caution and merely remove all content subject to complaint. Unless you are sure you can avail of one of the above defences, it is best to err on the side of caution in this way.

• A web host may receive a letter which holds itself out as being from a solicitor’s firm on behalf of their client. It is a fast and inexpensive precaution to contact the solicitor’s firm at the number on their headed paper and confirm that they are representing the client as the letter purports. Do not discuss the details of the case with the other side if they confirm that they are. It is best to obtain legal representation of your own in this case. Do tell the firm that you have received a letter on their headed paper, if they deny having sent it. Legal practices take misuse of their headed paper very seriously, and will want to take strenuous steps to prevent such misuse.

• In the past a small number of web hosts have received false papers, purporting to be legal summons etc. If you are in receipt of legal papers, demanding an appearance to be entered within a certain number of days at a court office, it is very important to contact a solicitor, who will ascertain their authenticity and give advice on your options.

Misuse of the Defamation Action

Libel is also prone to misuse by those who seek to restrict the dissemination of information. Referred to as a “strategic lawsuit against public participation” (SLAPP), it is not unknown for individuals or companies with significant resources to threaten legal action against a small entity unless they desist from engaging in particular activities. Often the activities engaged in are criticism of a particular company’s product or services, and the legal action threatened is libel.

This issue was considered by the European Court of Human Rights in early 2005. Often referred to as the McLibel case, the facts in McDonald’s Restaurants v Morris & Steel stretch back to 1990 when a number of Greenpeace activists were offered the stark choice by McDonalds to either apologise for distributing leaflets critical of McDonalds or face a libel action. The latter option was chosen, and McDonalds succeeded in the English Court of Appeal and were awarded £60,0000.

An appeal to the House of Lords was not granted, however the defendants filed a case with the European Court of Human Rights on the basis they had not received a fair trial due to the absence of civil legal aid. It was accepted by the Court that the two unemployed activists had neither received a fair trial, nor had their right to Freedom of Expression vindicated.