Libel Liability

By way of inaugurating my participation in this blog, I’m posting the below article on the subject of defamation and the internet. It’s part of my plan to corner the market in IT Law. A piece on Bittorrent will follow in the next week or so.

Free-Speech Free-For-All?

There has been much consternation of late amongst the teaching profession regarding the website www.ratemyteachers.ie , a subordinate site of the US site ratemyteachers.com, which allows students to post performance reviews of their teachers based on helpfulness, clarity and “easiness???. Much of the debate regarding the site has focussed on whether such rating and ranking is fair on teachers, and indeed it has been suggested by some teachers that a negative posting on the site constitutes bullying. Following on from this has been argument regarding the alleged benefits of such rating, as well as freedom of speech issues.

It is not only amongst teachers however that eyebrows have been raised. The response of teachers has led many of those who maintain websites which provide for discussion postings (message-board operators most obviously, but also bloggers, who increasingly allow for readers to post comments on issues raised by their own primary postings), to consider their own exposure to actions in defamation.

The law on defamation is relatively straightforward. It occurs where a false statement is published about a person which tends to lower that person in the eyes of right-thinking members of society. In slander, which might loosely be described as defamation in an ephemeral form such as conversation, it is usually necessary for a plaintiff to show that he was in fact lowered in the eyes of others and suffered loss as a result, whereas in libel, it suffices merely to show that the statement was of a type which tended to do so. Despite the oft-touted transience of web publication, it is generally accepted that it comes under the heading of libel. Given that many web postings, even when removed from sites, have a half-life in the form of caching, this would seem to be a reasonable position.

In a libel action, justification, that is the truth of the statement, is a full defence. However, it is for the defendant to prove the truth of the statement; all defamatory statements are presumed to be false. It is to be presumed that to allege professional incompetence against someone is to make a statement tending to lower them in the eyes of right-thinking society. Therefore, a student who posts his genuinely held belief that his teacher is incompetent has prima facie defamed that teacher, and is required to prove such incompetence in order to obtain of the justification defence. In practice this is quite difficult, and given that libel actions, alone amongst civil proceedings, are heard in front of a jury, such a defence is high-risk and unpredictable at best.

An alternative defence is the “Fair Comment??? defence, though this applies only to matters of public interest. While criticism of a Minister for Education would probably have the benefit of the Fair Comment defence, it is uncertain as to whether criticism of an individual teacher would obtain this benefit. If the defense was extended to postings on the website, it would apply only insofar as the comment related to a teacher’s performance as such. Any personal or abusive comments would not be considered to be comment on matters of public interest.

Irish law allows for a distributor, a chain of newsagents for example, to avoid liability where they can show that they neither knew nor ought to have known that a publication they distributed was defamatory. This is known as the “innocent dissemination??? defence and were it available to those running discussion-boards, it would no doubt set many minds at ease. However, given that most discussion boards are moderated, this may place the site owners in the position of editors rather than mere distributors.

Suing the ISP

Since the coming into effect of the European Communities (Directive 2000/31/EC) Regulations, 2003 a distinction is made between three types of internet provision. The first, acting as a “mere conduit??? essentially means providing no more than a telephonic network. A service provider who falls within the definition of a “mere conduit??? is given immunity and will not be liable for damages or for any criminal sanction as a result of any transmission of information.

The second category is “Cacheing???. ISPs often keep temporary copies of web pages on their servers so that users can access them more quickly. This kind of “automatic, immediate and temporary storage of information….for the sole purpose of making more efficient onward transmission of the information??? will not render an ISP liable for defamatory statements contained in the cached pages. However, such immunity is lost where the ISP does not act quickly to remove a copy of a page where they are aware that the original page has been removed or that its removal has been ordered by a court.

The final category is “hosting???, which is the storage of information provided by subscribers. Large companies and organizations are their own hosts, but the sites of small to medium sized organizations and personal web-pages, blogs and discussion board sites will tend to be hosted by an ISP. Under the regulations, hosts are given an immunity similar to the old innocent disseminator defense, which can be lost where a host is aware of defamatory content and fails to act expeditiously to remove or block the offending content. In 1999, the English High Court held Demon Internet Limited, an ISP to be the publishers of a defamatory statement posted by an unknown contributor to a Usenet group carried by Demon, largely because they failed to remove defamatory statements having received a complaint.

Consequently, the current practice as it relates to web hosting is one that reflects the commercial reality of the web publishing industry, but has raised concerns from free speech advocates. While a web host may, having received a complaint, examine the site and decide that the statement is not defamatory, most err on the side of caution and merely remove all content subject to complaint. In the US, ISPs now have total immunity from defamation suits arising from items published on sites they host. However, this is in the context of a regime where libel is far less easy to prove than in Ireland or the UK.

Finding Your Defamer

Contrary to widespread belief, the internet does not afford absolute anonymity, and Operation Amethyst, the Garda child pornography investigation has shown that there is an electronic trail which can be followed from a web server back to an individual computer. In theory therefore, a person posting content on a website can be identified via their ISP. ISPs are prevented both by data protection laws and their own privacy policies from giving out the details of their subscribers without their consent, but English courts have made orders in defamation cases compelling them to do so. In 2001, the business website www.motleyfool.com was compelled to hand over details of a pseudonymous poster who made defamatory statements regarding the company Totalise Plc on the Motley Fool site. It was later held on appeal that the Motley Fool were not to be responsible for Totalise’s costs for this application, thus avoiding the dilemma where a website has a choice between breaking Data Protection regulations and it’s own privacy policy where it hands over information voluntarily, and court costs where it does so only after a court order is granted.

Rate My Teachers states on its site that it complies with all court orders and subpoenas, but is it possible for an Irish teacher to get such a court order? If the principle established in the Motley Fool case is followed in Ireland, then the answer may be yes. Whether Rate My Teachers would comply with an Irish rather than an American court order is unknown, and although there is provision for such an order to be enforced by an American court, the cost of such enforcement would seem to be prohibitive.

The Motley Fool ruling also suggested that in the interests of fair procedure, the person who is to be “unmasked??? should be contacted by the web host or ISP and given an opportunity to give reasons why he should not have his details passed on, thus allowing a court to take a more balanced view in deciding the issue. A court may decline to give such an order for example, in “whistleblower??? situations, where the anonymity of a poster is of great importance.

What About The Webmaster?

The status of authors and ISPs is relatively clear then. But where does the middle man stand? Frustratingly, it is rather difficult to say in the absence of legislation or a test case. As I have said, the fact that discussion boards are often moderated, postings removed, contributors barred etc. could be seen as pointing towards editorial status for those running them. There has been speculation that such sites occupy the middle ground of publisher, which would still leave them exposed to libel liability. Perhaps the best balancing of rights is to allow them to avail of the innocent disseminator defence, with additional requirements for moderating of discussions and prompt removal of postings subject to complaint. Such a regime would require legislation, and it remains to be seen how, if at all, the government’s long-awaited Defamation Bill will address such issues.

Web free-speech advocates point to the multitudes of discussion “threads??? on any given discussion board site, and argue that such sites be exempted entirely from liability for content posted on them, if only on practical grounds that one can’t monitor all the threads all the time. Others point out that traditional media have had to live with responsibilities as well as rights for years, and that “new media??? evangelists should accept that there can be no free-speech free-for-all where reputations can be unjustly damaged. As to which philosophy wins out, in the long term it may be that the technology will outstrip any legal attempts to regulate it.

Fergal Crehan, Barrister-at-Law