Internet libel: everyone’s a critic, and everyone’s online

25 Feb 2010

Once upon a time, if you had a beef with someone you’d give out about them to anyone who’d listen, but in today’s digital world there are many more platforms to help you vent your spleen. You can update your Facebook status with a rant or post nasty comments on your blog, for instance. But, while getting it all off your chest may seem therapeutic, it could land you in some legal hot water.

Take the case of celebrity rock chick Courtney Love, who posted controversial remarks about the handbag designer Dawn Simorangkir on her Twitter and MySpace pages and in the feedback section of Love is now being sued for libel (or twibel, as it’s being called) in a Los Angeles court over her comments.

Meanwhile, reality TV star Kim Kardashian is being sued by Dr Siegal’s Cookie Diet for tweets that the company regards as “derogatory”.

And it’s not just US celebrities who can find themselves at the wrong end of a defamation suit. In January, an Irish blogger known as Ardmayle became €100,000 poorer after settling a libel action taken against him by a senior civil servant and his partner.

The risk of being sued

Anybody who puts defamatory statements into the public domain, in print or online, can be sued. With so many people now writing on blogs, microblogs, social-networking pages or forums, that’s a lot of opportunities for libel.

“Individuals can be sued if they are the authors of defamatory materials, even if they are posting a comment on a forum rather than on their own blog,” explains technology law expert TJ McIntyre, lecturer in the School of Law at University College Dublin and consultant with Merrion Legal Solicitors.

Last year saw the publication of the Defamation Act 2009, and while it was hoped that this Act would clarify defamation law in regard to new technology, McIntyre believes it hasn’t gone far enough.

“It’s the first time that defamation law in Ireland has been substantially amended since 1961, but what’s surprising is that it makes for relatively little change to the law as it affects internet service providers,” he says.

When a defamation occurs in traditional print and broadcast media, the publisher – as well as the person who issued the defamatory statement – can be sued. However, when it comes to online, some publishers might be able to use the hosting defence, McIntyre explains.

“There is a very limited immunity to some online publishers in Ireland by virtue of the E-Commerce Directive [under EU law]. This gives a limited immunity to people who host content, but this hosting defence, as it’s known, only applies to a narrow category of online intermediaries.

“There is a recent case law indicating that if you’re just hosting user comments or user reviews, or you operate a forum where people can post comments, you should be able to benefit from the hosting defence. That’s still something that’s relatively unsettled – there are High Court decisions to that effect, but we don’t have definite guidance yet as nothing has been written into the statute books. It’s something the recent Defamation Act should have clarified,” he says.

Recommendation for keepers of websites

McIntyre recommends that anyone maintaining a website should keep a record of how many people are reading their material.

“Online publishers should be able to determine, looking at the server logs, what was published, to whom, how often and where it was read because this could be an important factor when it comes to defending an action. It might be very helpful to be able to say this was read by 10, 15, 20 people before it was taken down, or it was only read by people in Ireland, it wasn’t read by people in jurisdiction X, where somebody else might be bringing an action.

“The Defamation Act says one of the factors that should be taken into account when determining the level of damages to be awarded is the ‘extent to which the defamatory statement was circulated’, and also ‘the means of publication of the defamatory statement, including the enduring nature of those means’.”

While you may think material is not ‘enduring’ when it’s on the internet and can be taken down immediately, McIntyre warns that anything online can be re-tweeted or cached in a search engine, or perhaps quoted on other sites.

“That’s another factor to take into account. Think very carefully, for example, about whether or not your blog is going to be cached on Google because that kind of redistribution potentially puts the author at risk. You may be libel for your words even if they’re redistributed in a different context.”

Web writers watch out!

By Deirdre Nolan