This article by Larry Ryan first appeared on Journalist.ie on 5 February, 2010. Reproduced with the author’s permission.
It’s been a careful week in the Irish blogosphere. News of a major libel settlement by an Irish blogger first began to filter around Irish bloggers after a piece by Trevor Butterworth in Forbes magazine.
Trevor suggested that “Ireland’s media is currently abuzz over a ‘confidential’ legal settlement against a blogger, who allegedly had to pay almost $140,000 in damages for a libelous post, seen by few, swiftly purged from the site, and readily apologized for.”
He insisted an unnamed Irish journalist had told him; “This kind of judicial policing has scared the crap out of people.”
In truth, the buzz really only began there. There was initially some scepticism about the story. The idea that an Irish blogger might have pockets deep enough to sustain such a settlement amused many.
Twentymajor wrote “There are plenty of Irish media people blogging, plenty more of them on Twitter and I’m sure if they were abuzz with a story like this we’d have heard all about it.”
But the news wasn’t going away. The Sunday Times confirmed the story last weekend, naming the blogger involved as Ardmayle and reporting that the blogger had agreed a €100,000 settlement before a libel case against civil servant Niall Ó Donnchú and his girlfriend Laura Barnes was due to be heard in the High Court.
The Irish Independent had reported the story in 2007, but it had rather fallen off the media radar as the parties awaited a trial date.
The settlement is the first known case of a libel award based on content in an Irish blog. Given the reputation the Irish legal system has for excessive libel awards, it’s understandable that bloggers are worried.
Even more so since Ardmayle is not a particularly high-profile blog.
On thestory.ie, Mark Coughlan remarked: “The blog which is the subject of the story is so obscure that Google finds zero – repeat zero – inward links. With that in mind I’m making the assumption that basis of the argument put forward by legal team for the people who felt they’d been libeled was “if you Google my client’s name, one of the first results is that blog post. That post is libelous”.
Without commenting directly on this case, TJ McIntyre, law lecturer with University College Dublin, feels bloggers could protect themselves from large awards by ensuring they keep historical server logs, showing just how widely particular posts have been read.
“The level of damages in defamation reflects the extent of publication – i.e. the extent to which the defamatory material was actually read. This is not (despite the best efforts of plaintiffs’ lawyers) the same as the extent to which it might have been read. Consequently (leaving aside other factors such as the gravity of the allegations) damages should be greatly reduced where the audience can be shown to be negligible. Potential readability worldwide notwithstanding.”
Of course blogs are subject to the very same libel and defamation laws as other media. A pamphlet on Irish libel laws by Digital Rights Ireland defines defamation as occurring where “a false statement is published about a person which tends to lower that person in the eyes of right-thinking members of society.”
Examples include Sinclair v. Gogarty, where there were allegations of sexual impropriety, Green v. Blake, featuring allegations of cheating in a horse race and DeRossa v. Independent Newspapers, where there was an allegation that the plaintiff tolerated serious crime.
Defamation becomes libel when it is written down or recorded in other permanent form.
To defend a libel case, the defendant must show that the disputed remarks were either true or fair comment. However, the burden of proof rests with the defendant – all defamatory statements are presumed to be false.
The fair comment defence is only applicable in matters of public interest and only covers opinions, not statements of fact.
The pamphlet notes that “the primary person who is liable for a defamatory statement is the author,” and reminds web users that “the internet does not afford absolute anonymity and that if you post under a pseudonym or anonymously, you can still be identified via your Internet Service Provider (ISP).”
The European Communities (Directive 2000/31/EC) Regulations, 2003 reinforces the responsibility held by bloggers themselves by granting immunity from libel liability to hosting companies, unless the host is made aware of defamatory comments and neglects to remove or block them within a reasonable time.
Nor does hosting content outside of the country put bloggers beyond the reach of Irish law.
In a 2006 case involving the website rateyoursolicitor.com, an Irish judge directed that US ISP GoDaddy should be served with notice of an action in the Irish courts.
GoDaddy suspended access to the website within 24 hours of Justice Michael Hanna issuing a court order to remove references to a specific barrister from the site.
The new Defamation Act 2009, which came into force in January, introduced some provisions to make it easier to defend libel cases. However, it makes little provision for online libel and makes no reference to protection for ISPs.
On cearta.ie, Dr Eoin O’Dell posted;
“The Act is a welcome, but incomplete, reform – incomplete not least because it takes little account of the increasing trend towards online communication. In particular, it does not attempt to achieve inter-operability between its restatement of the traditional defence of innocent publication and the defence provided to intermediary service providers by the implementation of the E-Commerce Directive.”
However, on a positive note for bloggers, the new law does contain a provision that judges should give directions to the jury on the size of damages awards.
That may provide some protections for bloggers who can prove that defamatory content was not widely read.