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Defamation and the internet

  • 27-04-2006 1:07am
    #1
    Hacketry
    Closed Accounts Posts: 50 ✭✭


    Right my lawyerly lovelies, here's one to get your cyber wigs on for.

    I believe there will be some mention of the legal liability of Internet Service Providers in the upcoming defamation legislation which is currently before Cabinet.

    ISPs will be treated differently than "Old Media" publishers such as newspapers, and will be able to avail of different defences to libel in terms of reasonable publication and limitation periods.

    I'm not a legal eagle myself and I'm struggling to get my head around the whole thing. An architect-cum-lipsticked loungeroom lawyer explained it to me the other day that currently ISPs can claim they do not have the resources to check if material they host is defamatory so they cannot be held liable for publishing or transmitting the damn stuff.

    She said it was farcical because no architect could claim, if her big building fell down, that her firm didn't have the resources to check every aspect of the design.

    What do ye think? What do ye expect? And more importantly, what should the defamation bill contain in relation to the internet and New Media?

    I'm stumped.


Comments

  • #2
    antoinolachtnai
    Registered Users, Registered Users 2 Posts: 9,817 ✭✭✭antoinolachtnai


    I think you have been badly informed.

    You should read the law reform commission report on defamation law reform to find out what changes are actually likely to happen. There is some relevance to electronic publishing, but not what you say here.

    The defence for ISPs arises from the EU directives for information society services.

    This is just generalities. If you need advice, obviously you should see a solicitor.


  • #3
    hullaballoo
    Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,778 Admin ✭✭✭✭✭hullaballoo


    The EU Directive on this is Directive 2000/31/EC and it categorises ISPs into three classes, "mere conduit", "caching" and "hosting". It is generally inclear which category Boards.ie falls under. I certainly can't get my head around it. Per the definition I have, boards would appear not to be an ISP at all - it seems that the ISP is actually Hostings365 - and they cannot be liable for libel unless they become aware of it, and fail to take it down.

    On the other hand, boards may be considered a caching ISP, and I would imagine if any action were to arise, this is how they would be held liable under the Directive, although boards doesn't quite fit the definition here either. The liability here arises out of boards holding archives of comment. There are almost 5,000,000 posts on this site (and that may not include the pre-vBulletin stuff), so there is potential liability for that.

    In practical terms, and because of the ambiguity of the Directive when it comes to ISPs, the law that mainly covers this area at the moment is the same law that covers other media and publications. That has a tendency to mean that boards is liable for defamatory statement made in any of its fora.

    The way we mitigate the damage is to have moderators who take down defamatory stuff as it crops up, and to ban repeat offenders. We have the ability to prove exactly how many times any given page is/was viewed, and how quickly offending material was removed.

    Therefore, if a case did arise, boards.ie would probably escape more or less unscathed because the damage done would be minimal, and the courts would make an allowance for the fact that we don't have the capacity to edit posts before publication. It will always go in our favour that we have made even some attempt to police the system.

    As for the new law, I can only say that it should clear up some of the ambiguities that exist already. Personally, I feel that defamation should be gotten rid of altogether, but I do not make these decisions.

    Additionally, there are already numerous threads discussing this topic.
    http://www.boards.ie/vbulletin/showthread.php?t=2054922167&highlight=libel
    http://www.boards.ie/vbulletin/showthread.php?t=2054916365&highlight=libel
    http://www.boards.ie/vbulletin/showthread.php?t=2054910325&highlight=libel
    http://www.boards.ie/vbulletin/showthread.php?t=2054901497&highlight=libel
    http://www.boards.ie/vbulletin/showthread.php?t=2054894040&highlight=libel.

    I'll leave this thread open to see if anyone can come up with anything new. I'd be interested to see if there's something in the pipeline with regards to defamation law.


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