Will defamation reform trigger rise in social media cases?

12 May 2023

Image: © Jon Anders Wiken/Stock.adobe.com

Legal expert James Roche discusses the potential ramifications of the Irish Government’s proposed defamation reforms for content moderation across social media platforms.

The case for greater regulation of defamatory and harmful content across social media platforms has long been debated, and indeed poses a headache for Government and regulators tasked with introducing processes that will ensure platform operators act swiftly to review alleged defamatory and harmful content.

In recent times, new legislation and regulation via the EU’s Digital Services Regulation, which aims to, among other issues, stem the flow of disinformation online, and the Online Safety and Media Regulation Act 2022, which established the Media Commission, set new parameters around how content is shared online, with a view to creating a safer digital environment for users.

These new regulations, which many have argued are justified in many ways, pose new challenges for the platforms as they come to terms with and establish, or in some cases overhaul, existing content monitoring processes to comply with the changes.

Now, the dial will turn further with the proposed defamation reforms, outlined recently in the General Scheme of Defamation (Amendment) Bill, which are coming down the line. Although we await publication of the full Bill, we can glean a significant amount from the General Scheme.

Impact of defamation reforms

The proposed reforms are far-reaching and will impact all types of media publications, including traditional and broadcast media, but interestingly may put greater pressure on social media platforms’ content monitoring protocols, particularly around content posted anonymously which a person or business might allege to be defamatory or damaging.

Up to now a Norwich Pharmacal Order – requiring social media companies to reveal information such as email addresses, phone numbers and IP addresses of anonymous posters – must be sought in the High Court. Under the proposed Bill, parties would have a statutory right to seek such an Order in the Circuit Court. In theory (and likely in practice) this will make it cheaper and more accessible to obtain a court order against social media platforms. The volume of Norwich Pharmacal Orders sought against social media companies could rise significantly as a result.

If we look to our neighbours in the UK, the number of defamation cases before the courts rose almost threefold between 2016 and 2019 with many of those cases thought to be a result of social media content proliferation.

Move to resolve disputes quickly

The Bill also provides for a new Statutory Notice procedure. A person who believes that a defamatory statement about them has been published online (including via an online platform, online search engine or social media app) may submit a Notice to the intermediary service provider of the hosting service on which the statement was published.

This Notice must then be forwarded by the provider to the author of the statement, and the author is requested to respond within five working days. If that does not happen, it will result in public access to the statement being restricted.

The aim is to incentivise parties to make contact at an early stage and promote the possibility of swift resolution of defamation disputes without recourse to litigation.

The proposed reforms will take some time to go through the Dáil and Seanad before they are signed into law, and indeed will be subject to amendment during the legislative process, but social media platforms will already be assessing how and what needs to be changed to accommodate the growing level of regulation that is incoming in the months and years to come.

Headshot of a young man in a dark blue suit, white shirt and purple tie, against a white background.

James Roche. Image: Ken Walsh

By James Roche

James Roche is a senior associate in the Public and Regulatory Department of Fieldfisher LLP law firm. He advises on a broad range of disputes, inquiries and investigations, in particular involving online defamation, judicial review and financial regulation matters.

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