Blog Post

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.

[One slight quibble – the US rules mentioned apply to intellectual property issues only – when it comes to defamation actions, US online publishers have even stronger protection.]