On-Line Content

LIABILITY FOR ON-LINE CONTENT

Some of the liabilities which publishing on the Internet can expose a user to are as follows:

Defamation.

Article 40.3.2 of the Irish Constitution guarantees that the state will protect from unjust attack and vindicate the good name of Irish citizen. In practice this process is carried out by the operation of the common law tort of defamation. Defamation is:

“…the wrongful publication of a false statement about a person, which tends to lower that person in the eyes of right thinking members of society or which tends to hold that person up to hatred, ridicule or contempt, or causes that person to be shunned or avoided by right-thinking members of society”. McMahon & Binchy, Irish Law of Torts, (Butterworths: Dublin ) 3rd Ed. 2000 p882.

There is no doubting the seriousness of being found to have defamed another person. In De Rossa –v- Independent the plaintiff was awarded over 350,000 euro in damages and this award was upheld by the Supreme Court. Costs would have been in excess of this and an award of this type would be more than sufficient to shut many Internet sites down. Although, the Constitution (Article 40.6.1(i)) also guarantees freedom of expression, this right is subject to public order and morality.

Defamation law applies to the Internet.

In the English case of Corfe & Takenaka –v- Frankl [2000] the defendant sent three e-mails to the offices of Takenaka accusing Corfe, their Deputy Managing Director of affairs, assault and of refusing to support his children. The defendant used an alias and a hotmail account to cover his tracks but was traced through the IP numbers on his e-mails and was ordered to pay damages of £26,000 and costs estimated at £100,000. In Western Provident v Norwich Union 1997, the defendants settled an action for £400,000 in damages when staff emailed defamatory content about a competitor.

Who is liable?

Everyone involved in publishing the statement is liable for defamation.

What if you cannot identify a person who has posted a defamatory statement in a chat room or discussion board on the internet?

In Totalise plc v The Motley Fool Ltd [2001], the defendants operated a website containing discussion boards where members could post material. ‘Z Dust’ made numerous postings which called into question the plaintiffs solvency, suggesting that it was non the point of collapse and the competence of the management. Plaintiff contented that these statements were defamatory and sought disclosure of the name and address of ‘Z Dust’ and all documents in the possession, custody and control of the defendants which related to ‘Z Dust’. The defendants removed the postings and barred Z Dust from using the site but refused to disclose Z Dust’s identity on the grounds of privacy and data protection laws and it was not clear that the plaintiff intended to sue for defamation.

The plaintiff successfully sought a Norwich Pharmacal relief. Z Dusts postings were defamatory and it was ordered by the court that his identity be disclosed to the plaintiff.

"I consider that there is considerable force in ..[the] argument that those who operate websites containing discussion boards do so at their own risk".

"If it transpires that those boards are used for defamatory purposes by individuals hiding behind the cloak of anonymity then in justice a claimant seeking to establish the identity of the individuals … ought to be entitled to their costs".

In Godfrey v Demon Internet Ltd [1999] the service provider was held liable for defamatory comments made on a newsgroup site they hosted as they refused to remove the offending statements when asked to do so by the plaintiff. The liability of service providers is set out in the EC(Directive 2000/31/EC) Regulations 2003 which provide that an intermediary service provider will not be liable where they are mere conduit. The Regulations are discussed in detail under the e-Commerce section of this website.

However, for the avoidance of any doubt section 23 of the Electronic Commerce Act, 2000 states that: “All provisions of existing defamation law shall apply to all electronic communications within the state, including the retention of information electronically”. This section may go beyond a mere restatement of the existing law, under the pre-existing law it is the publication of a libel that is actionable, that is communication to third parties. The extension of defamation laws to the retention of information electronically seems to go beyond this and this may cause problems for service providers in the future.

The Legal Advisory Group on Defamation was established by the Minister for Justice, equality and law reform in September 2002. Their Report examines the present law on defamation and suggests reform.

Pornography.

Placing pornography on a web site can give rise to two basic forms of offence; the old common law offence of obscenity and offences under the Child Trafficking and Pornography Act 1998. Obscenity is an unusual offence in that it is specifically mandated by the constitution article 40.6.1.i provides that: “The publication or utterance of…indecent matter is an offence which shall be punishable in accordance with law”. Under section 13 of the Defamation Act 1961 the penalty for publishing such a libel is 7 years. Obscenity is an old common law offence, an obscene article is something which tends to ‘corrupt and deprave’ those who hear or view it. There is very limited and very old Irish case law on this issue, there are more recent English decisions but these are made with regard to the UK’s Obscene Publications Act 1959-1964.

The Child Trafficking and Pornography Act 1998, makes it an offence to traffic in children for sexual exploitation or to allow a child to be used for child pornography. It also makes it an offence to knowingly produce, distribute, print or publish, import, export, sell show or possess an item of child pornography. The Act contains penalties of up to 14 years in prison. The Act is a welcome development, however the position of anybody who may facilitate the distribution of child pornography may become difficult. Internet Service Providers, in particular, should be very careful not to do anything that may give rise to potential criminal liability under the Act.

Criminal Libel.

If a web site identifies individuals who are believed to be child molesters or drug dealers, its owners might be prosecuted for criminal libel. The consequences could be severe on conviction, they could be sentenced to a maximum of two years imprisonment if the site had maliciously published a defamatory libel, which they knew was false. Of all the offences covered by the Defamation Act 1961 this offence is the most likely to still be viable at this stage as unlike blasphemy there have been several convictions for this in recent years.

Blasphemy.

Section 13 of the Defamation Act 1963 provides that: “Every person who composes, prints or publishes any blasphemous…libel shall, on conviction…be liable to a fine not exceeding five hundred pounds or imprisonment for a term not exceeding two years or to both fine and imprisonment or to penal servitude for a term not exceeding seven years”. However, in Corway –v- Independent Newspapers the Supreme Court held that while there was no doubt that this offence existed in Irish law, given the uncertain state of the law on blasphemy, the court could not see its way to authorizing the institution of a criminal prosecution for blasphemy.

Miscellaneous.

There are a wide variety of other pieces of legislation that web sites must comply with. One example is advertising, job advertisements must comply with the Employment Equality Act 1998, Financial adverts will have to comply with the Finance Act 1998, the Central Bank Act 1997 or the Stock Exchange Act 1995. Other laws range from those designed to deal with subversives in the Offences Against The State (Amendment) Act, 1998 to the regulation of elections in the Electoral Acts. The laws which apply to the content of any site will vary depending on what that content actually is.