Social media and the law is still largely virgin territory in Ireland. Recently, legal action was taken by a young Irish student defamed by video footage on YouTube. The case provoked debate on the right to privacy, the right of the press to fairly and accurately report court proceedings and the right to an effective remedy to protect his anonymity. Before a fuller discussion of this case, it is necessary to refer to the existing libel and privacy laws in Ireland.
The Defamation Act 2009 was a long awaited reform in circumstances where there had been no legislative change in Ireland in this area since the Defamation Act 1961. It was commenced on 1 January 2010. The Act includes innovative remedies and defences and gives greater clarity to both plaintiffs and defendants. In particular, it abolishes the distinction between libel and slander and provides for a one year limitation period for defamation actions. Previously, the limitation period in respect of actions for libel was six years, while that for slander was one year. However, the Act does not deal specifically with user-generated sites such as Twitter, Facebook or YouTube. The challenges of identification and jurisdiction are not provided for and will instead be matters for the courts to determine on a case by case basis.
Included in the Act is confirmation that a class of persons can be defamed as well as a body corporate. The Act also clarifies that a person has only one cause of action for multiple publications, i.e. where the same defamatory statement is published to two or more persons. This is of course significant in respect of the publication of a defamatory statement on the Internet given the accessibility of that publication to millions of people worldwide.
In circumstances where a defamed party is unable to identify the author of a defamatory statement on the Internet, such as a tweet, he may seek to hold the Internet service provider or the social media service provider liable rather than the author. Of course, the provider may also be better able to meet an award of damages. The ‘innocent publication’ defence set out in section 27 of the Act is important in this regard. Under this section, the provider has a defence to an action for defamation where it can prove that it was not the author, editor or publisher of the statement to which the action relates. The Act provides, however, that reasonable care must be taken in respect of the publication and it must be shown by the provider that it did not know and had no reason to believe that it caused or contributed to the publication of the statement giving rise to the defamation action. Questions will be asked as to the level of responsibility the provider had for the content of the statement or the decision to publish it, the nature or circumstances of the publication and the previous conduct or character of that provider. Clearly this is a significant defence for all social media providers.
In this discussion, reference must also be made to the EU Electronic Commerce Directive which was adopted by the European Parliament on 5 May 2000 and implemented into Irish law by SI No 68 of 2003. Internet Service Providers (“ISPs”) who are mere conduits will escape liability if they did not initiate, select or modify the information contained in the transmission and did not select the receiver of the transmission. If ISPs are also hosts they will not be liable for damages if they have no actual knowledge of the unlawful activity or information and, where a claim for damages is made, are not aware of the facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful. Importantly, the ISP, acting as host, would not be liable if, on obtaining knowledge of or becoming aware of the defamatory material, it acted expeditiously to remove or disable access to the information. This defence is likely to be open to social media service providers where they can prove that they do not monitor or filter the information published on their forums. This approach may however raise questions as to whether there is a duty of care to monitor or filter information and essentially track down defamatory material before it goes “viral”.
Article 8 of the European Convention on Human Rights provides for the right to respect for private and family life. This was incorporated into Irish legislation by the European Convention on Human Rights Act 2003. The constitutional right to privacy is found in Article 40.3 of the Irish Constitution and is a qualified right in that the State guarantees to respect, as far as is practicable, from unjust attack, and where injustice is caused to vindicate, the life, person, good name and property rights of every citizen. The right to privacy is often balanced against the right to freedom of expression under Article 40.6.1(i) of the Constitution and Article 10 of the European Convention on Human Rights. Freedom of expression is guaranteed subject to public order and morality with a right of citizens to express freely their convictions and opinions.
The recent case of Michelle Herrity v Associated Newspapers (Ireland) Limited  1 IR 316, in which William Fry acted for Associated Newspapers, is of interest in this regard. Ms Herrity sought damages from Associated Newspapers for wrongful invasion of her privacy and breach of her constitutional rights. A newspaper owned by the company published details of Mrs Herrity’s extra-marital affair with a priest. The reports included details of telephone conversations between Mrs Herrity and the priest, which were covertly recorded by her husband and provided by him to the newspaper.
In delivering her judgment, Ms Justice Dunne carried out a review of privacy law in Ireland. She stated that there was a constitutional right to privacy which was qualified and which could be balanced against competing rights such as the right to freedom of expression. She indicated that the right to privacy may be derived from the nature of the information in issue and a complaint may be made in relation to the manner in which the impugned information was obtained. Significantly, she noted that the right to sue for breach of privacy is not confined to actions against the State, State bodies or institutions. Importantly for the media, Ms Justice Dunne stated that there is “a hierarchy of constitutional rights and as a general proposition….cases in which the right to privacy will prevail over the right to freedom of expression may well be few and far between”. In this case, she was critical of the fact that the information was obtained through taped conversations without the consent of the persons concerned. Damages of €60,000 were awarded, together with punitive and exemplary damages of €30,000 for using transcripts of conversations obtained illegally. Previously, there had been no decided case in Ireland where damages had been given for breach of privacy against a person or entity.
The Recent Irish Experience
Eoin McKeogh, a young Irish student, discovered on 29 December 2011 that he had been wrongly identified by a John Doe, “Daithii4U”, as a man who had exited a taxi without paying. Footage of the fare evasion incident had been posted on YouTube by the taxi driver seeking the culprit. It was very clear that the Mr McKeogh had been defamed. An action was brought before the High Court against a number of “John Does” and against the social media sites Facebook and YouTube, as well as Google (Ireland and US), Yahoo and CrowdGather Inc. Five newspapers were joined as third parties to the action. On 11 January 2012, an ex parte application was heard by Mr Justice Michael Peart for an order for the immediate removal from YouTube of the video footage, as well as a number of other orders restraining the defendants from publishing on the Internet material defamatory of Mr McKeogh. In addition, Norwich Pharmacal orders were granted requiring certain of the named defendants to provide Mr McKeogh with details of the identity of the web users who had defamed him via their websites, thereby enabling Mr McKeogh to take steps against them in order to protect his good name. Following the making of those orders, the Court was told that 95% of the material had been removed.
While Mr Justice Peart spoke about how he readily understood Mr McKeogh’s motivation in trying to stop the “vituperative internet chatter”, he stated that the Court does not have magic wand and it was impossible to “unring” the bell that has sounded so loudly. The genie was well and truly “out of the bottle”. Mr McKeogh also sought an “effective remedy” in respect of the reporting of the court proceedings by the media, essentially that he not be identified in the reporting of the proceedings. Following a trawl of the relevant case law and legislation, Mr Justice Peart was satisfied that the media was entitled to name Mr McKeogh in its reporting of the court proceedings.
What Lies Ahead?
While the existing legislative framework is clearly deficient and we are yet to have a Privacy Act, the Irish courts have been seen to capably address the challenges associated with defamation and privacy actions arising from Internet use. It is quite clear from the recent Eoin McKeogh case that the Irish courts will not hesitate in granting orders to reveal the identities of authors of defamatory material to plaintiffs. Given the sympathies the Court had with Mr McKeogh, it is also very likely that courts will enforce the “innocent publication” defence provided for under the Defamation Act 2009 strictly and will not tolerate any failure or delays in removing defamatory material once service providers are on notice.