OMG everyone’s going crazy about Politics.ie!!
In the past 24 hours I have witnessed some of the most hysterical and ill-informed speculation about the law of libel ever heard outside of the King’s Inns student canteen. We’ve been here before of course.
I don’t wish to pull rank here, and nothing I say should be construed as formal legal advice, but may I respectfully suggest a look at my Irish Times piece on the subject, which appeared around the time of Ratemyteacher‘s brief notoriety. It’s hardly definitive, but it is at least the product of a small amount of research.
If that’s too long, try Digital Rights Ireland’s handy leaflet on the subject.
As for my own view, I’m a staunch freedom-of-speecher, (if it was up to me, I’d have a similar regime as the US, where libel barely exists at all anymore) but we unfortunately live in a country where that freedom is sometimes restricted in the interests of other rights. Those who are keen to fight the good fight would do well to aquaint themselves with what they’re up against. And those not at financial risk would do well to consider if they’d be quite so gung-ho if it was their proverbial on the bacon-slicer.
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You’re pulling rank!
Just to clarify but can you make correspondence confidential without the other person’s permission?
You know I’m not sure Dan. My feeling is that you probably can’t. Interesting question. I’ll look into it
Fergal….
You are pulling rank, but then you have some rank to pull in this area. I’d thought of your piece and linked it from a comment over on mulley.net.
I’m having a feeling of deja reja vu (We’ve been here before and we’ll be here again). A bit like data protection and the electoral register.
Tangentially: I remember hearing that you can legally record (even secretly) any conversation of which you are a part. But does that mean you can make it public?
As far as I know, if you want to ensure that somebody doesn’t disclose the information that you share with them, you need to get them to sign a non-disclosure agreement. Companies waste an awful lot of time and money on blocking access to sensitive information until NDAs have been signed, which would tend to suggest that they don’t feel confident in their ability to defend their data’s confidentiality without such agreements.
Dan’s question is interesting as is Darwin’s point but a lawyer would probably think not about whether you can or can’t do these things, but about the evidential issues and whether or not the person who feels their privacy has been violated has a remedy before the courts.
The legal firm might not be able to stop you publishing their letter, but they might tell a judge that you’d prejudiced the outcome of the case by publishing a document which would in the ordinary course of events have been privileged as a communication prepared in contemplation of legal action.
Especially if the trial took place before a jury – as can happen with defamation actions.
I recall an exchange of letters with one early complainant against Slugger from a few years back, in which I was sorely tempted to publish them (the whole correspondence) would have been highly embarrassing. I decided against it, since my view has always been to play it straight and sober.
In truth I don’t have sufficient assets to make court action worth a litigant’s while. But that doesn’t mean that I don’t take the potential for it deadly seriously.
i have no idea what your libel laws are there but in Canada I wouldnt take it very seriously as our legal system is set up to discourage people from unnecesatily suing people so that frivolous cases like libel are seldom pursued
But I think if you let the fear of litigation the roost, like Mick fealty apparently does, then I think the lawyers have won with out the need of filing a brief
should be “rule the roost”
Depends on your definition of worthwhile Mick. A litigant’s purpose may be to shut you up, rather than to take money from you.
I don’t know about the Canadian regime Sean, but I suspect its more liberal than ours. You rightly point out that plaintiffs can use the mere threat of litigation as a weapon, and get what they’re after without getting near a court
Perhaps “on the internet, no-one knows you’re a dog” should be revised to “on the internet, no-one knows you’re an [amateur] lawyer”. Copyright and libel in particular are two areas where (a) everyone appears to have read guides to the law as it applies in the US and (b) Irish law is much more restrictive.
Just to clarify but can you make correspondence confidential without the other person’s permission?
It has been many years since I took IP law in college, but my (fwiw) opinion is that they have copyright over whatever emails _they’ve penned_.
Of course, this didn’t stop a c*nt like Waghorne getting a summer student fired out of Údaras a year or two ago over an email (disregarding Sicilian Notes’ claimed ‘confidentiality for email’ on the blog), but there you go.
Very true TJ, I don’t know how may times I’ve read bloggers blithely advising each other of their Fair Use or First Amendment rights.
Sean
As someone who knows a Canadian libel lawyer who has recently written on internet issues, I would say your understanding of the likelihood of internet suits is mistaken. As for libel being a frivolous suit per se, you obviously haven’t heard that the Prime Minister of Canada has threatened suit against the Opposition Leader for items published on the Liberal Party website.
Mark Dowling
I am not a lwayer and most of my expierience is based on property damage cases pursued by insurance companies against my employer. but its been my expierience that most cases they are settled on a no fee basis. In Canada we have the loser pays system that discourages frivolous law suits, so to pursue a libel case against some one you must first determine that the potential damages you recieve out weigh the risk of losing and therefor funding the defense of the person you are suing.
Then there is the question of exactly how much damage has been inflicted onto your reputation.
Its one of the reasons that contingency lawyers are virtually unknown in Canada
Libel is not a frivolous suit but to pursue libel damages can be very frivolous
oh And Mark that whole prime Minister suing thing is the perfect example of a using the threat of a suit as a bluff to try and force others into acceding to your demands. I cant remember but I think the Liberals told him to get stuffed!
“It has been many years since I took IP law in college, but my (fwiw) opinion is that they have copyright over whatever emails _they’ve penned_.”
Not according to the copyright association of Ireland: http://www.cai.ie/faq/index.htm
” * original literary, dramatic, musical and artistic works (traditionally called the “classical” copyrights);
* film, sound recordings, broadcasts and the typographical arrangement of published editions (often called “related rights”, because they involve the exploitation of “classical” works);
* computer software and non-original databases (despite their modest credentials as “creative” works) and
* performances.”
Even then, one can use a copyrighted piece in ‘fair dealing’
“The work may also be used for criticism or review or for reporting current events, with the same proviso, and provided further that the use of the work is accompanied by an acknowledgement identifying the author and the title of the work.”
[…] issue. I don’t want to rehash the origins of the story nor can I do much better than Fergal over at Tuppenceworth, Worldbystorm at the Cedar Lounge in encouraging sense and a bit of reason in […]
Fergal:
Indeed. A younger cousin of the SLAPP (Strategic lawsuit against public participation, http://url.ie/b2u). It often comes with the unwelcome disruption of silences (http://url.ie/b2w).
But when I say take it seriously, I don’t mean cowpe at the first sign of trouble. Most of the time, I see little value in dying in the ditch over something an anonymous commenter has said. I’ve had late nights on Slugger fire-fighting blatantly organised attempts at public character assassination of ‘enemy’ journalists and politicians. Mulley’s dictum is the pitch perfect guide, I would suggest.
You certainly cannot allow yourself to become fearful, yet you do need to stay alert.
I’ve seen one forum in the US, run by a legal firm which had an incredibly liberal policy on free speech decide to close in the end. It’s not entirely clear whether it was because of the heat they were getting, or that the quality of the comment has deteriorated to the extent that it just wasn’t worth the hassle.
In the end, it is important to take the possibility seriously. Not simply in order to avoid trouble (though that’s desirable): it also helps underwrite standards.
That said, there is a difference when you write for a paper, and it’s not just because newspaper legal advisers are a particularly paranoid tribe. People are on the look out for lucrative opportunity to resort to litigation with newspapers in way they are often not with bloggers. I’ve a friend who works on a northern weekly that got successfully sued for misreporting on a local soccer match.
Out of court settlements mostly go unreported, but I’d guess most daily/Sunday newspapers have bundles of actions in play most of the time, and have a substantial contingency fund for the purpose. I also suspect that many smaller payouts get made because it’s cheaper than fighting it to the bitter end.
For what it’s worth, the First Amendment of the Irish Constitution extends the definition of “time of war” to include wars that we’re not involved in.
So, unless the Government enacts emergency legislation to allow you to copy someone else’s scathing attack on the antics of Mr Hitler (and you stumble across a carelessly parked time machine that whisks you back to 1939), our First Amendment doesn’t really help you.
I will fight to the last drop of blood to protect my First Amendment Rights.
If my government cannot extend the definition of time of war to include wars we’re not in, we are living in nothing short of a tyranny.
If you think that one is good, you should look at the original Free State Constitution. The first amendment to that reads to the affect that “the State reserves the power and right to identify Mick Collins as a gombeen who never stands his round at the bar, always sneakin’ out for a sly smoke when it’s his turn”.
Stuff like that is why the whole thing was re-written by Dev and Archbishop McQuaid on the back of a napkin in the Shelbourne in 1937.
It’s all true. Wikipedia surely sez so.
Best Wishes!,