The first Irish decision on the ambit of the E-Commerce Directive (EC Directive 2000/31/EC) (the Directive) and the transposing Irish Regulations (Statutory Instrument 68 of 2003) (the ‘IR’) was made on 18 March 2009 at the High Court before Mr. Justice Clark.

This case addressed two preliminary issues that arose out of a claim for damages for libel against the defendant, The Sporting Exchange Limited trading as Betfair which operates a chat room on its website. It is alleged that registered customers of Betfair made defamatory remarks on the character of the plaintiffs (who are both bookmakers) in this chat room and that this equates to a publication of the remarks by Betfair.

The key finding was that this chat room is protected by an exemption sourced in Regulation 18 of the IR which holds that ‘intermediate service providers’ or ‘relevant service providers’ providing a ‘relevant service’ are not liable for information stored at the request of a recipient once the provider, Betfair in this instance;

  1. does not have actual knowledge of illegal activity or of illegal information and
  2. the provider acts ‘expeditiously’ to remove or prevent such information being released.

It was held for the purposes of the Directive and the IR that Betfair was an ‘intermediary service provider’ or ‘relevant service provider’. Using wording from the Directive as guidance the Court found that the chat room was an ‘information society service’ and therefore a ‘relevant service’ so within the scope of the Regulations. The exemption in Regulation 18 provides that the host of such a relevant service may not be liable for it’s contents. It must be pointed out that the provisos to this exemption of liability - a lack of knowledge and acting expeditiously to remove any illegal content have yet to be proven in court so as to enable the exemption actually come into force.

It was also found by the court was that there was ‘no direct connectivity’ between the chat room service and gambling which meant the service did come within the scope of the Regulations. There being a clause that omits gambling activities from the Regulations scope was the issue that this finding circumvented.

On this point it was noted that there are potential discrepancies between the IR which refer to enacted Irish Legislation (the Betting Act 1931, the Gaming and Lotteries Act, 1956-1959 and the National Lottery Act, 1956) and the Directive which appears to be wider in referring to any form of gambling activity (which would encompass the activities of Betfair). Mr. Justice Clark did not need to investigate the potential discrepancies as the chat room was sufficiently removed from Betfair’s main commercial activity of providing a platform for customers to bet or wager against each other but made note of them for future reference.