“The internet has facilitated an inexpensive, easy and instantaneous means whereby unscrupulous persons or ill-motivated malcontents may give into their anger and their perceived grievances against any person, where the allegations are patently untrue or where no right-thinking person would consider them to be reasonable or justified. By such means, anything could be said publicly about any aspect of their life whether private or public with relative impunity, and anonymously whereby reputations can be instantly and permanently damaged, and where serious distress and damage may be caused to both the target, children and adults alike, leading, in extreme cases, to suicide. So serious is the mischief so easily achieved that in my view the Oireachtas should be asked to consider the creation of an appropriate offence under criminal law, with a penalty upon conviction sufficient to act as a real deterrent to the perpetrator.”
These were the words of Mr Justice Michael Peart in the High Court from 2012 when delivering Judgment in the case entitled Tansey – v – Gill. He was expressing frustration with the Defamation Act 2009 which, even then, seemed dated. If one is defamed in a national newspaper, the newspaper, as publisher, is considered liable in law for false publication regardless of the author of the falsehood. There are, of course, a number of exceptions to this. Since 2009, various social media providers have, in many cases, surpassed national newspapers in disseminating information, true or false. It seems inherently unfair that one law should pertain for newspapers and different rules for social media platforms.
My Justice Binchy in the High Court considered these issues in the case of Muwema – v – Facebook Ireland limited as far back as 2016.
Background:
Fred Muwema was a prominent lawyer practising in Uganda. A number of highly offensive and damaging claims were made about him on a Facebook post. Mr Muwema sought an injunction in the High Court in Dublin against Facebook Ireland Limited seeking to take down the offending material. The arguments before the Court were far-ranging, including interpretation of the Defamation Act 2009, the Irish caselaw going back over many years and European Regulations and Directives.
Facebook relied on the Constitutional principles of free speech and pointed to the lack of practicality in expecting them to edit, monitor and take down offending publications. They also alluded to an entitlement to open and critical discussion of people featured in the news or in certain professions.
Mr Muwema sought a Court Order under Section 27 of the Defamation Act 2009. It is worth setting out the text of Section 27 below as follows:-
27 - (1) It shall be a defence (to be known as the “ defence of innocent publication ”) to a defamation action for the defendant to prove that -
he or she was not the author, editor or publisher of the statement to which the action relates,
he or she took reasonable care in relation to its publication, and
he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.
(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if –
in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,
in relation to printed material containing the statement, he or she was responsible for the printing,
in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the fil or sound recording,
in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means od which the statement would be capable of being retrieved, copied, distributed or made available.
(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—
the extent of the person’s responsibility for the content of the statement or the
decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.
Basically, Section 27(1) of the Defamation Act 2009 gave Facebook two defences.
Firstly, that of innocent publication.
Secondly, it argued that, rather than being a publisher, Facebook was merely an Intermediate Service Provider.
Ultimately, the Judge refused the Plaintiff’s claim, but he did so with “considerable unease”. It seems the Judge felt that he should err on the side of free speech and that he could only grant an Order if the Defendant (in this case, Facebook) clearly had no defence at the full trial of the action. He also felt that innocent publication arose in that they were not the author, editor or publisher.
Let us examine this more closely. Even since 2016, the super-tech companies have come under the microscope in Ireland and abroad. They do great good. They do a lot of harm. We have learned, through murder enquiries, political campaigns and revenge pornography that
“The internet has facilitated an inexpensive, easy and instantaneous means whereby unscrupulous persons or ill-motivated malcontents may give into their anger and their perceived grievances against any person, where the allegations are patently untrue or where no right-thinking person would consider them to be reasonable or justified. By such means, anything could be said publicly about any aspect of their life whether private or public with relative impunity, and anonymously whereby reputations can be instantly and permanently damaged, and where serious distress and damage may be caused to both the target, children and adults alike, leading, in extreme cases, to suicide. So serious is the mischief so easily achieved that in my view the Oireachtas should be asked to consider the creation of an appropriate offence under criminal law, with a penalty upon conviction sufficient to act as a real deterrent to the perpetrator.”
These were the words of Mr Justice Michael Peart in the High Court from 2012 when delivering Judgment in the case entitled Tansey – v – Gill. He was expressing frustration with the Defamation Act 2009 which, even then, seemed dated. If one is defamed in a national newspaper, the newspaper, as publisher, is considered liable in law for false publication regardless of the author of the falsehood. There are, of course, a number of exceptions to this. Since 2009, various social media providers have, in many cases, surpassed national newspapers in disseminating information, true or false. It seems inherently unfair that one law should pertain for newspapers and different rules for social media platforms.
My Justice Binchy in the High Court considered these issues in the case of Muwema – v – Facebook Ireland limited as far back as 2016.
Background:
Fred Muwema was a prominent lawyer practising in Uganda. A number of highly offensive and damaging claims were made about him on a Facebook post. Mr Muwema sought an injunction in the High Court in Dublin against Facebook Ireland Limited seeking to take down the offending material. The arguments before the Court were far-ranging, including interpretation of the Defamation Act 2009, the Irish caselaw going back over many years and European Regulations and Directives.
Facebook relied on the Constitutional principles of free speech and pointed to the lack of practicality in expecting them to edit, monitor and take down offending publications. They also alluded to an entitlement to open and critical discussion of people featured in the news or in certain professions.
Mr Muwema sought a Court Order under Section 27 of the Defamation Act 2009. It is worth setting out the text of Section 27 below as follows:-
27 - (1) It shall be a defence (to be known as the “ defence of innocent publication ”) to a defamation action for the defendant to prove that -
he or she was not the author, editor or publisher of the statement to which the action relates,
he or she took reasonable care in relation to its publication, and
he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.
(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if –
in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,
in relation to printed material containing the statement, he or she was responsible for the printing,
in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the fil or sound recording,
in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means od which the statement would be capable of being retrieved, copied, distributed or made available.
(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—
the extent of the person’s responsibility for the content of the statement or the
decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.
Basically, Section 27(1) of the Defamation Act 2009 gave Facebook two defences.
Firstly, that of innocent publication.
Secondly, it argued that, rather than being a publisher, Facebook was merely an Intermediate Service Provider.
Ultimately, the Judge refused the Plaintiff’s claim, but he did so with “considerable unease”. It seems the Judge felt that he should err on the side of free speech and that he could only grant an Order if the Defendant (in this case, Facebook) clearly had no defence at the full trial of the action. He also felt that innocent publication arose in that they were not the author, editor or publisher.
Let us examine this more closely. Even since 2016, the super-tech companies have come under the microscope in Ireland and abroad. They do great good. They do a lot of harm. We have learned, through murder enquiries, political campaigns and revenge pornography that Facebook and other social media platforms can now do a great deal more to self-police. Their algorithms are becoming ever more sophisticated. They are in a position to cooperate with worldwide security agencies to combat terrorism. They can, to an extent, take down offensive, racist or pornographic material quite quickly. They boast that they have allocated huge resources to monitoring users and enforcing their policies.
It might be too harsh to make them absolutely liable for every utterance by every nutcase on a keyboard. They should do better, however. Once they are called upon to take down a post and once it is clearly pointed out that a posting is defamatory, racist or criminal, they should be able to react quickly. It might be a step too far to make them strictly liable for all publication. It is not unreasonable, however, to call them to account in circumstances where they are asked to take down a false posting or to block an account. If they, without submitting a reason, fail to do so and harm ensues, then why should they not be held responsible? I would disagree with the reasoning of Judge Binchy in the Muwema case but, in fairness to him, as was pointed out by Judge Peart many years’ ago, the legislation seems to be flawed. One wonders whether our politicians have thought this through or whether they are cowering before the big business interests of Facebook and others with registered offices in Ireland who are big employers and taxpayers. The Multinational Technology Companies, by their very nature, are extremely mobile and could move their quarters to a more favourable jurisdiction if a small national government takes a hard line against them. This is not a sufficient reason, however. I think Judge Binchy’s reading of the Defamation Act is very narrow and I would dare to disagree with the learned Judge. How much better would it be if the legislators simply did their job and made everything clear.
David Browne advises national newspapers and local broadcasters on Defamation matters.