The New Face of Defamation

Barry Lysaght - JF Law & Politics | TCLR Junior Editorial Board

It could be broadly said that the tort of defamation is intrinsically linked to the the natural curiosity of human beings. With the march of technological progress and the rise of social media, it is hard to deny that our societal landscape has changed: There is now a forum which is accessible by all, a means to communicate messages to the masses worldwide.

While this has profound benefits, from the transfer of knowledge, to simply keeping in touch with people around the globe, it goes without saying that there are certain negatives surrounding it also. The underlying conflict between the right to free speech and the right to a good name has found a new battle field. To divulge personal details and share opinions online has become part and parcel of modern society, so naturally civil issues of legal nature were bound to arise.

It can often be difficult to apply well established principles to a new field of law. Can these principles be applied strictly as though they took place in any other forum, or do they need to be adapted to suit the rules and values of the ‘online community’? The long awaited Defamation Act brought much needed legislation to this particular tort. However, online tort actions are still relatively untouched by Irish law. While the Act clarifies many aspects of the tort of defamation in modern times, it does not deal specifically with user-generated sites such as Twitter, Facebook or YouTube. Who is to be held liable when a false, defamatory comment is made about an identifiable person?  The most obvious is the person who posted the comment themselves. However, online defamation torts are rarely that simple. What of the Internet Service Provider, or the website itself? Do they owe those who may potentially be defamed a duty not to have defamatory content posted on their websites? These matters are to be decided upon by the courts.

A recent case in this area, McKeogh vs. John Doe & Ors [2012] IEHC 95, has shown some interesting aspects of online defamation law in action. In December of 2011, Eoin McKeogh, discovered that he had been wrongly identified as a man who had run from a taxi without paying for the fare by a John Doe, a name given to the primary publishers of defamatory statements on Internet discussion fora. This footage was then posted on YouTube by the taxi driver hoping to locate the culprit so that the fare could be paid, or failing that, to embarrass him. A defamation action was brought before the High Court by Mr McKeogh against 3 John Does and the social media giants Facebook and YouTube, alongside Google (Ireland and US), Yahoo and CrowdGather Inc. Five separate newspapers were joined as third parties to the action. The sheer number of parties involved in this case shows the level of complexity involved.  In January 2012, an application was heard by Peart J for an order of the removal from YouTube of the defamatory footage, as well as a number of other orders restraining the various defendants from further internet publication of the material defamatory to Mr McKeogh. Additional orders were granted requiring certain named defendants to provide the identity of the John Does who had defamed Mr McKeogh, thereby enabling him to take steps against them in order to protect his good name. Following these orders, the Court was told that 95% of the defamatory material had been removed. We can see from this final point another issue that arises when evaluating online defamation. It is extremely difficult to fully remove something from the internet. Once a piece of information passes onto the net, it is in the public domain, and that information can be used to any end in the future. Who is to say that the remaining 5% of the defamatory material will not come back to haunt Mr McKeogh in the future?

Mr Justice Peart said that he readily understood Mr McKeogh’s motivation in trying to stop the ‘vituperative internet chatter’, but stated that it was impossible to ‘un-ring’ the bell that was sounded so loudly. This is a common issue with the tort of Defamation; can the law fully mend a name that has been tarnished? Is there a more proactive means to protect the good name of those who have been defamed by the actions of another? To fulfil this end, Mr McKeogh sought an ‘effective remedy’ in respect of the reporting of the court proceedings by the media, that he would not be identified in the reporting of said proceedings. However, after reviewing the issue Mr Justice Peart was satisfied that the media was entitled to name Mr McKeogh in its reporting of the proceedings. While it is not what was sought by Mr McKeogh, I feel that having his name included in media reports of the court proceedings would have been a positive thing. Since this case was quite well known, thus, to have him named as the wronged party in a tort action would contribute to the vindication of his good name.

However these issues dealt with in this case still raise certain questions. Can the strict principles of defamation be applied to all internet users, if they unwittingly find themselves the subject of a defamation case?  As the adage goes ‘ignorance of the law is not a defence from the law’ but this may seem crass when a throwaway comment someone makes in an area where they mistakenly feel it is safe to do so, becomes the subject of a defamation action. The judiciary must show discretion in this area, and as with all defamation suits, both the right to a good name, and the right to freedom of expression must be protected. It is an area of life which is constantly changing and developing. As society develops, the law must follow suit.

Further discussion of this issue can be found here (pdf) and here.


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