Justice still prevails online

6 Oct 2003

Legal safeguards aimed at preventing the spread of defamatory material over the internet are already in place, but the issue is currently in the spotlight as never before. Over the past week, the names of Premiership footballers alleged to have been involved in a sexual assault have been widely circulated online. Whatever the outcome, the case is likely to remove the belief that the internet is not subject to the same libel laws as the offline world.

Lawyers representing some of the footballers have threatened legal action if their clients’ names are published. As a result, a number of websites which host chatrooms have either banned the subject or in some cases suspended the chat service altogether. It is also understood that some individuals who sent emails containing lists of the players allegedly involved in the incident have been threatened with legal action.

According to Rob Corbet, IT solicitor with the Dublin-based legal firm Arthur Cox, many people believe wrongly that the internet is not subject to the same laws as print and broadcast media. This has led to instances where unsubstantiated allegations or rumours have been discussed online, via chatrooms or email. “The key concern is defamation,” said Corbet. “Any individual about whom an allegation is made is entitled to maintain their own good name. They have a right to a reputation.”

Corbet said that websites can be liable for the content they host. However there is legislation on the statute books – European Communities (Directive 2000/31/EC) Regulations, 2003 – which was enacted in Ireland last February and which covers certain exemptions. An internet service provider would not be liable where it can be proved that the provider was the ‘mere conduit’ – simply passing the information along its network, unaware of its content. “If you modify, select or control the information, the exemption wouldn’t apply to you,” Corbet pointed out.

Website owners and ISPs tend to be pursued in cases like this because those posting to chatrooms tend to do so anonymously. Since it is difficult to find the individual who made a statement, the usual recourse is to take action against the site owner or service provider. Service providers have traditionally called on the defence that they were not aware of material being sent over their networks.

Crucially, that stance no longer applies once an ISP knows that such information is being sent using its systems. A three-year-old legal case in the UK, Godfrey vs Demon Internet, set a precedent for finding ISPs liable for content published. A defamatory allegation had been posted against Professor Laurence Godfrey in a chatroom hosted by Demon. He contacted the ISP to have the posting removed but the company refused his request, claiming that it did not control or monitor the chatroom. However Godfrey successfully served an injunction against the service provider, on the grounds that once it became aware of illegality, it was dangerous to refuse to act. “It was now no longer an innocent disseminator of information,” Corbet explained.

According to Corbet, typical hosting agreements now include terms and conditions that give internet service providers the right to remove content of a website in certain cases. “The ‘mere conduit’ exemption is internet-specific, but the libel laws continue to apply to publications on the internet as to paper or broadcast media,” Corbet told siliconrepublic.com.

Ireland has had its own version of online scandalmongering in the past, albeit not with the same public frenzy that has accompanied the current case involving the Premiership footballers. Six years ago, a short-lived website called Cogair began publishing stories about the activities of certain prominent Irish figures. The site was used to publish articles that Irish libel laws prevented from being broadcast or printed in the national media. Some of the stories were true, others since proved to be inaccurate. The site’s proprietors believed that hosting the server in the US – where the libel laws are less stringent – made it exempt from prosecution. In the event, the site only lasted for a matter of months. Today it would be unlikely to survive more than a few hours.

Corbet suggested that the reason why some lawyers have chosen to pursue those sending emails with defamatory material against their clients is because it is easier to identify individuals this way than by pursuing an anonymous poster in a chatroom. However, as employers can be vicariously liable for information sent by workers, he recommended that organisations should put in place acceptable use policies for email.

He added that despite the high profile of the case in the UK and the furore surrounding it, there would be no need to change legislation currently on the books. “There is sufficient law to allow people redress as is,” Corbet concluded.

By Gordon Smith