Page
The Bar Review 2018, 23(2), 48-51
The Bar Review
2018
*48 Liability of data hosts for online defamation
Conor O'Higgins
BL
Subject: Information technology
Keywords: Damages; Defamation; EU law; Injunctions; Ireland; Social media;
Data hosts receive special protection under the law, making it difficult to prove
liability in defamation cases. However, there are possible legal remedies for
plaintiffs, particularly where companies do more than simply host the
data.1Responding in September to criticism from the President of the United States,
Mark Zuckerberg described Facebook as a “platform for all ideas”. His point was that
the social network is a conduit that simply facilitates the free expression of a
multitude of different views held by its users. Recent events, however, have cast
doubt on this view that data hosts who operate online platforms simply facilitate the
transmission of information. For example, in December the European Court of Justice
(ECJ) rejected Uber's argument that it is just the provider of a platform that
arranges the connection of taxi drivers and passengers, instead finding that Uber is,
above all, a private transport business.
The social networks
Returning to data hosts who operate social networks, it has been said regularly that
platforms such as Facebook are akin to a wall with graffiti on it: if the graffiti is
defamatory, you don't blame the wall. However, in applying this analogy it must be
recognised that the ‘wall’ is not an inanimate object, but rather is an extremely large
and successful *49 corporation that makes considerable profits from allowing
people to graffiti.
It was possibly on this basis that, in September, the chairman of Ofcom, the UK
media regulator, expressed her personal belief before a committee of the House of
Commons that Facebook and Google are, actually, publishers of online material.2The
companies in question have consistently and vigorously opposed this description of
themselves, one aspect of their opposition undoubtedly being their understandable
fear of assuming liability for online defamation propagated by users of their services.
Whether they can be held so liable is of course a matter of particular importance in
this jurisdiction, where they, and other major data hosts, have international
headquarters. When the High Court addressed this question in Muwema v
, Page
Facebook,3Binchy J. expressed doubt that, under the relevant European and
domestic provisions, the data host could be liable, whether by being enjoined to
remove online material or in damages. This caused him considerable concern on the
basis that the absence of both remedies could leave persons who have been
seriously defamed online by impecunious or unidentifiable users of internet services
without any effective legal remedy. It is arguable, however, that while applicable
legislation gives a significant level of special protection to data hosts, it does not
leave those who have been defamed on social media and other online platforms
without a practical means of vindicating their reputation. This is so, firstly, because
the data host may be liable in damages where it has sufficient knowledge of the
existence of defamatory material and refuses to remove it from its service. In most
cases the making of an adequately particularised complaint to the data host ought to
give rise to such knowledge, thereby triggering an entitlement to damages should
the material not be removed promptly. Secondly, a defamed person can protect their
reputation by seeking an injunction requiring the data host to remove online material
pursuant to s.33 of the Defamation Act 2009 (“the 2009 Act”). Both of these options
are considered below; however, before doing so it is necessary to look at the scope
of the special protection given to data hosts.
The protection from damages
Directive 2000/31/EC (“The Directive”) deals with many aspects of e-commerce, and
under it internet service providers of various kinds are given special protection from
damages actions brought by persons whose rights have been infringed. The Directive
was transposed into Irish law by the European Communities (Directive 2000/31/EC)
Regulations 2003 and Regulation 18 affords protection to data hosts. Reliance on
Regulation 18 is on condition that the host:
“(a) “(a) … 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
(b) (b) … upon obtaining such knowledge or awareness, acts expeditiously to remove or
to disable access to the information”.
This protection is consistent with and bolstered by the defence of “innocent
publication” provided for by s.27 of the 2009 Act. This has its roots in the common
law defence of innocent dissemination, whereby “secondary publishers” such as
booksellers and newsagents, who had no knowledge of the nature of the material
they were publishing, were protected from actions for defamation. Section 27(1)
states that it will be a defence to an action if the defendant can prove that:
a) a) he or she was not the author, editor or publisher of the statement to which the
action relates;
b) b) he or she took reasonable care in relation to its publication; and,
c) c) he or she did not know, and had no reason to believe, that what he or she did
The Bar Review 2018, 23(2), 48-51
The Bar Review
2018
*48 Liability of data hosts for online defamation
Conor O'Higgins
BL
Subject: Information technology
Keywords: Damages; Defamation; EU law; Injunctions; Ireland; Social media;
Data hosts receive special protection under the law, making it difficult to prove
liability in defamation cases. However, there are possible legal remedies for
plaintiffs, particularly where companies do more than simply host the
data.1Responding in September to criticism from the President of the United States,
Mark Zuckerberg described Facebook as a “platform for all ideas”. His point was that
the social network is a conduit that simply facilitates the free expression of a
multitude of different views held by its users. Recent events, however, have cast
doubt on this view that data hosts who operate online platforms simply facilitate the
transmission of information. For example, in December the European Court of Justice
(ECJ) rejected Uber's argument that it is just the provider of a platform that
arranges the connection of taxi drivers and passengers, instead finding that Uber is,
above all, a private transport business.
The social networks
Returning to data hosts who operate social networks, it has been said regularly that
platforms such as Facebook are akin to a wall with graffiti on it: if the graffiti is
defamatory, you don't blame the wall. However, in applying this analogy it must be
recognised that the ‘wall’ is not an inanimate object, but rather is an extremely large
and successful *49 corporation that makes considerable profits from allowing
people to graffiti.
It was possibly on this basis that, in September, the chairman of Ofcom, the UK
media regulator, expressed her personal belief before a committee of the House of
Commons that Facebook and Google are, actually, publishers of online material.2The
companies in question have consistently and vigorously opposed this description of
themselves, one aspect of their opposition undoubtedly being their understandable
fear of assuming liability for online defamation propagated by users of their services.
Whether they can be held so liable is of course a matter of particular importance in
this jurisdiction, where they, and other major data hosts, have international
headquarters. When the High Court addressed this question in Muwema v
, Page
Facebook,3Binchy J. expressed doubt that, under the relevant European and
domestic provisions, the data host could be liable, whether by being enjoined to
remove online material or in damages. This caused him considerable concern on the
basis that the absence of both remedies could leave persons who have been
seriously defamed online by impecunious or unidentifiable users of internet services
without any effective legal remedy. It is arguable, however, that while applicable
legislation gives a significant level of special protection to data hosts, it does not
leave those who have been defamed on social media and other online platforms
without a practical means of vindicating their reputation. This is so, firstly, because
the data host may be liable in damages where it has sufficient knowledge of the
existence of defamatory material and refuses to remove it from its service. In most
cases the making of an adequately particularised complaint to the data host ought to
give rise to such knowledge, thereby triggering an entitlement to damages should
the material not be removed promptly. Secondly, a defamed person can protect their
reputation by seeking an injunction requiring the data host to remove online material
pursuant to s.33 of the Defamation Act 2009 (“the 2009 Act”). Both of these options
are considered below; however, before doing so it is necessary to look at the scope
of the special protection given to data hosts.
The protection from damages
Directive 2000/31/EC (“The Directive”) deals with many aspects of e-commerce, and
under it internet service providers of various kinds are given special protection from
damages actions brought by persons whose rights have been infringed. The Directive
was transposed into Irish law by the European Communities (Directive 2000/31/EC)
Regulations 2003 and Regulation 18 affords protection to data hosts. Reliance on
Regulation 18 is on condition that the host:
“(a) “(a) … 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
(b) (b) … upon obtaining such knowledge or awareness, acts expeditiously to remove or
to disable access to the information”.
This protection is consistent with and bolstered by the defence of “innocent
publication” provided for by s.27 of the 2009 Act. This has its roots in the common
law defence of innocent dissemination, whereby “secondary publishers” such as
booksellers and newsagents, who had no knowledge of the nature of the material
they were publishing, were protected from actions for defamation. Section 27(1)
states that it will be a defence to an action if the defendant can prove that:
a) a) he or she was not the author, editor or publisher of the statement to which the
action relates;
b) b) he or she took reasonable care in relation to its publication; and,
c) c) he or she did not know, and had no reason to believe, that what he or she did
