The extent to which internet hosting sites can be found liable for hosting defamatory comments is due to come under scrutiny by the Supreme Court. This appeal has arisen following the wrongful identification of a young Irish student as the culprit in a YouTube video uploaded by an anonymous user, and hosted by YouTube, Facebook and Google, in which a young man fled a taxi without paying the fare. The case demonstrates the difficulties faced by an individual who wishes to be forgotten by the internet. As recognised by Judge Michael Peart in his High Court ruling, the “court does not have a magic wand”. Once the “genie is out of the bottle”, it becomes impossible to undo the damage that has been done.
In May 2013, Judge Peart in the High Court, having found that the student had been defamed, granted an interlocutory injunction requiring that internet giants Facebook, YouTube and Google permanently remove the video clip on a worldwide basis. The internet companies then subsequently obtained a stay on the interlocutory injunction pending their appeal on that order. They have also been granted an application for a priority hearing in the Supreme Court. The interim injunction preventing republication of the video clip remains in place pending the appeal.
This case raises important questions as to how the Irish courts will interpret the E-Commerce Directive 2000/31/EC and the implementing Irish legislation. In particular, it will also be interesting to see the extent to which the Supreme Court is guided by the recent Court of Justice of the European Union (CJEU) judgment against Google Spain, known as the “right to be forgotten” case. In that case, the CJEU held that in certain circumstances an individual has the right to have information about them removed from the results of an internet search carried out against their name. The appeal therefore has the potential to mark a move away from the limited duty currently placed on internet hosting sites where they must only remove defamatory material when such material has been brought to their attention, and instead place a more proactive duty on internet hosting sites.