The recent signing of the Defamation Act, 2009 (the Act) into law has brought this topical tort into the spotlight once again. The Act, which repeals the Defamation Act, 1961[1] and makes significant changes to the tort in general,[2] has proven to be controversial. While the controversy is notably due to the presence of the hotly debated blasphemy clause, it is not only would-be blasphemers who have closely watched the progress of the Act. Internet service providers[3] are anxious to see whether the new law will clarify the position of their liability for defamatory statements published on their web sites. ISPs have found themselves liable for such statements in the past, though the position in relation to such liability has been far from certain. This article discusses the position of ISPs in defamation liability as it may be following the commencement of the Act
Defamation Basics
There are three essential ingredients to the tort of defamation:
1. a statement was made concerning the complainant;
2. that statement was of defamatory effect; and
3. that statement was published.
The Act defines a defamatory statement as ‘a statement that tends to injure a person’s reputation in the eyes of reasonable members of society’.[4] This essentially replicates the definition found in case-law.[5] Examples of defamatory statements in case-law have ranged from questioning the sexuality of a complainant[6] to accusing a complainant of corruption.[7] A statement is published if it is made to persons other than the claimant. Therefore, if a defamatory statement is made other than privately to the complainant, it may be considered to have been published and the tort will be completed. Both the author of the defamation and its publisher, if not one and the same, may be considered to have committed the tort.
While traditionally newspapers and magazines have found themselves at the wrong end of defamation actions for publishing offending material, more recently ISPs and web site providers have been targeted by those anxious to protect their good name. For example, ISPs behind web sites such as rateyoursolicitor.com have been joined in defamation proceedings against the owners of such web sites.[8] As statements posted on the web may be viewed by millions of Internet users, this is a particularly invasive form of defamation and one which complainants are concerned to have removed as soon as possible.
ISP Liability
The potential liability of ISPs for defamatory content on their web sites is rooted in their role as ‘publishers’, as without the availability of the hosting web site the defamatory statement would not reach the public domain. This is a harsh reality for ISPs that merely provide a hosting facility and do not edit or review the content of the web sites which they host. It is made even more difficult by the fact that web site contributors often use pseudonyms or leave comments anonymously, thus making their identification difficult. In such cases, often the first recourse for a complainant is against the ISP.[9]
The validity of actions in defamation against ISPs seemed to be confirmed by s 23 of the Electronic Commerce Act, 2000. This states that all provisions of existing defamation law shall apply to all electronic communications within the State. The definition of ‘electronic communication’ includes the communication of information by storing or displaying it electronically or by electronic means. Therefore, the appearance of a statement on a web site or in a blog was considered to have fallen within the definition and defamation law applied, enabling an ISP to be sued as a publisher. This provision reflected the sentiments of judgments of persuasive authority which have held that ISPs can be liable as publishers for defamatory statements. For example, in the English case of Godfrey v Demon,[10] an ISP that allowed access to a defamatory statement posted on a web site was found to have published it each time one of its subscribers accessed and saw the posting.
This position is clarified somewhat by the Act. As noted above, a defamatory statement is defined as ‘a statement that tends to injure a person’s reputation in the eyes of reasonable members of society’. The Act further states that the term ‘statement’ shall include an electronic communication or a statement published on the internet[11] and that publication may be ‘by any means’.[12] While this point had essentially been made in the Electronic Commerce Act, and that provision is not removed by the Act, it is helpful that it is explicitly clarified. As a statement published on the Internet may be defamatory, the fact that an ISP facilitates that publication makes it possible to sue an ISP in defamation.
Given that it is, therefore, clear that an ISP may be sued as the publisher of defamatory statements on its web sites, it is necessary to examine the possible defences open to an ISP in such actions.
Defences for ISPs
Prior to the 2009 Act, there were three principal defences on which an ISP accused of defamation may have attempted to rely. These were innocent dissemination, unintentional defamation and the ‘hosting’[13] defence under the E-commerce Regulations.[14] While the Act appears to abolish the first two of these defences,[15] it introduces the new defence of innocent publication, which may be of use to ISPs. Following the Act, therefore, two main defences are open to an ISP.
The first defence is the ‘hosting’ defence under the E-commerce Regulations. Regulation 18 states that an intermediary service provider which provides a ‘relevant service’ consisting of the storage of information provided by a recipient of the service shall not be liable for the information stored at the request of that recipient if:
1. it does not have actual knowledge of the unlawful activity concerned and, as regards claims for damages, is not aware of facts or circumstances from which that unlawful activity is apparent; or
2. upon obtaining such knowledge or awareness, it acts expeditiously to remove or disable access to the information.
A ‘relevant service’ is defined as an information society service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service. The recent High Court judgment of Betfair[16] confirmed that the provision of a chatroom facility by the defendant web site operator fell within the E-commerce Regulations and allowed the defendant to plead the hosting defence in a defamation action concerning comments left on its chatroom. While the defendant in that case was a web site operator, the judgment suggests that a wide range of activities available over the internet will fall within the Regulations[17] and appears to quote with approval authorities that suggest that this includes ISPs.[18]
The Regulations, therefore, provide a defence for an ISP that is not aware of defamatory content on its web sites. They do not, however, absolve ISPs from all responsibility. This is evident from the fact that an ISP must act ‘expeditiously’ to remove defamatory content once it becomes aware of its presence. Indeed, knowledge was a key factor in Godfrey v Demon, in which the defendant ISP was found liable only for the defamatory statement of which it was aware and did not remove, rather than statements made before awareness. In practice, therefore, an ISP should have formal procedures in place to notify it of defamatory content and enable expeditious removal. This may require the removal of material on receipt of notification notwithstanding that the validity of the claim has not been considered. The right to do this should be expressly reserved in the terms and conditions of use of the ISP. It should also be noted that the Regulations do not affect the power of a court to order an ISP not to infringe, or to cease to infringe, any legal rights,[19] thus enabling a court to intervene in the event that an ISP does not ‘expeditiously’ enough.
The second defence open to ISPs is that of innocent publication. Introduced by s 27 of the Act, it is reminiscent of the abolished defences of innocent dissemination and unintentional defamation. Section 27 states that it shall be a defence if it can be proved that a defendant:
1. was not the author, editor or publisher of the statement to which an action relates;
2. took reasonable care in its publication; and
3. did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of the statement that would give rise to a cause of action in defamation.
Crucially, a person shall not be considered to be the author, editor or publisher of a statement if, 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 only for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.[20]
As an ISP may be considered to be responsible only for the operation of a system or service through which a statement is made available, it appears to be excluded from the definition of ‘author, editor or publisher’ and may avail of the defence if it also fulfils the second two proofs. Of particular concern in fulfilling these proofs is the issue of ‘reasonable care’ in publication. Notably, the court shall have regard to the extent of the person’s responsibility for the content of a statement or the decision to publish it when determining if reasonable care was taken. This is of significance to an ISP that merely provides a facility by which a statement is displayed and does not actively decide to publish that particular statement. In such cases, action to remove the statement on awareness of its presence would appear to be relevant to ensuring ‘reasonable care’ is taken. This is emphasised when considered in conjunction with the third proof, which requires absence of knowledge that publication would give rise to an action in defamation.
Following the Act, therefore, there appear to be two useful defences on which an ISP may attempt to rely when faced with defamation proceedings. While these defences will not operate to absolve an ISP that takes no responsibility for what is posted on its web sites, they should offer comfort to an ISP that takes action once it becomes aware of the presence of a defamatory statement.
Conclusion
In this technological age when the use and availability of the internet is widespread, it is inescapable that occasionally a defamatory comment may appear on a web site. It would be a heavy burden for ISPs if they were to be considered responsible for all such occurrences. While an ISP cannot abdicate all responsibility for the contents of its web sites and allow defamatory material to remain visible indefinitely, the Act lends a welcome clarification to the law. It is hoped that these clarifications will be implemented as soon as possible to somewhat simplify this complicated area.
Tess Crean is a trainee solicitor with Mason Hayes+Curran, Dublin. Email: tcrean@mhc.ie.
[1] Section 4
[2] Section 3(2) of the Act specifies that the Act does not affect the operation of the general law in relation to defamation except to the extent that it provides otherwise (either expressly or by necessary implication)
[3] Defamation liability discussed in this article relates to ‘internet service providers’ in their capacity as hosts and providers of internet publication of the offending material
[4] Section 2
[5] A statement was deemed to be defamatory if it was such as to ‘lower a person in the eyes of the average right-thinking man’: Quigley v Creation Limited [1971] 1 IR 269
[6] Reynolds v Malocco [1999] 2 IR 203
[7] Curneen v Sweeney [1969] 103 ILTR 23
[8] Maguire v Gill, High Court (action adjourned November 2006)
[9] An alternative course of action a complainant may take is to seek a Norwich Pharmacal order from the ISP to determine the identity of the poster. This may raise separate issues for the ISP, such as data protection concerns, which are outside of the scope of this article
[10] [1999] 4 All ER 342
[11] Section 2
[12] Section 6(2)
[13] Note that the ‘caching’ and ‘mere conduit’ defences under Regulations 16 and 17 may also be of relevance, though are not within the scope of the discussion this article
[14] European Communities (Directive 2000/31/EC) Regulations (SI 68/2003), implementing Directive 2000/31/EC
[15] Section 4 repealing the Defamation Act, 1961; s 15(1) abolishing certain defences to defamation actions that existed prior to Part 3 of the Act
[16] Mulvaney & Ors v The Sporting Exchange Ltd t/a Betfair [2009] IEHC 133
[17] Paragraph 5.7
[18] Paragraphs 5.7 – 5.9
[19] Regulation 18(3)
[20] Section 27(2)(c)
