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With a click of a button, a defamatory statement cracking a person’s reputation can be disseminated to many different people in many different jurisdictions. Facebook was established in 2004 and now has 1.39 billion active users, YouTube was established in 2006 and has 1 billion active users and Twitter was established in 2006 and has 284 million active users. In some instances, a person does not even have to be an active user to access the material posted – a standard Google search may bring up a potentially offensive comment or the comment may be the subject of republication and comment on other pages. It is sometimes difficult to foresee the irreparable damage a few characters can cause in the modern world. Up until recently, there may have been a public view that content posted on Twitter or other social media would be treated differently to comments in the traditional media. The ground-breaking case involving Lord McAlpine and Sally Bercow in the UK was one of the first high profile cases on social media to show that the same rules on defamation apply to social media. The Irish decisions set out below make no differentiation between social media publication and any other form of publication.

The primary legislation in Ireland

The Defamation Act 2009 (“the 2009 Act”) was an eagerly awaited piece of legislation in Ireland replacing legislation that was over 45 years old. The 2009 Act was commenced on 01 January 2010 and included an innovative range of defences and reliefs. It created the statutory tort of defamation being “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society.” Section 2 of the 2009 Act recognised for the first time in statute that a statement includes a statement published on the internet and an electronic communication. From the outset however the Act has been criticised for its lack of specific provisions dealing with defamation and social media. This article sets out the Irish experience of claims of defamation arising from social media with a particular emphasis on the 2009 Act. With the introduction of the “serious harm” requirement in the UK’s Defamation Act 2013 it may well be the case that Ireland will become a centre of attention for this type of social media litigation.

Identifying the poster

Social media often brings problems of identification; in many instances, individuals can post anonymously or under a pseudonym. However, for an offended party to get any sort of relief in a court, he or she must be able to identify the person making the comment. The Irish courts have in a number of cases shown themselves willing to make the necessary Norwich Pharamacal Orders against social media organisations requiring them to disclose details of the poster.

In the recent case of Stephen Walsh v Twitter International, the plaintiff, a whistle blower, took part on RTE Prime Time, a leading current affairs television programme. He alleged that he was subsequently defamed by a tweet on social media and sought an order from the High Court directing that Twitter International provide information which would assist in identifying the anonymous Twitter user and author of the allegedly defamatory tweet. The High Court granted the Norwich Pharmacal Order sought and Twitter International provided the Twitter user’s email address to the Plaintiff.

Balancing the damage caused by further court reporting against the requirement that justice be administered in public

The vast majority of Irish cases are heard in public which poses additional problems for those who seek to vindicate their constitutional rights to their good name and reputation. Often cases of this nature are very high profile and can attract a large amount of media attention. There is a natural risk of bringing the comments to the attention of those who were not previously aware and associating the innocent victim with the comments again. This is not a new problem in the defamation sphere but a recent Irish case has shown one approach to this careful balancing exercise in a social media context.

In X v Twitter International, the court granted an injunction directing Twitter to remove offensive sexually related tweets and pictures of the plaintiff, a teacher, from its platform, which the court described as defamatory. A fake profile had been created on Twitter featuring a series of sexually explicit and offensive photographs and commentary about the plaintiff and her mother. The plaintiff had reported an impersonation violation to Twitter International and asked Twitter to immediately suspend the profile from the internet. The judge granted the injunction sought against Twitter, and directed that, although the hearing would be conducted in public, neither her identity nor her profile should be identified by the media.

“Unringing the bell”

The best known Irish case to date on social media defamation is the case of Eoin McKeogh v John Doe and others. In December 2011, a video of a male allegedly evading a taxi fare in Dublin on the night of 13 November 2011 was posted online on YouTube, Facebook and a number of other websites. This video was viewed by a large number of people and the plaintiff was identified online as the person evading the taxi fare. However, at the relevant time, the plaintiff was studying in Japan and was not in the country on the night in question. There was therefore no doubt that this was a question of mistaken identity.

In January 2012, the plaintiff successfully obtained an injunction prohibiting re-publication of the video. He was also granted orders that all material be removed from the internet and a Norwich Pharmacal Order identifying the users who had identified him as the person in the video. When the court reconvened two weeks after the order was made, the experts admitted that despite their best efforts they had only been able to remove 95 per cent of the material from the internet. Judge Peart commented that “the genie was well and truly out of the bottle” and it was “impossible to unring the bell that sounded so loudly”. He observed that defamatory comments on the internet leave an “everlasting footprint”.

This injunction was appealed to the Supreme Court by a number of the defendants due to its far reaching implications. The outcome of this appeal is awaited with much anticipation by social media websites and hosts as it could result in onerous obligations on them to take down links to videos and websites should a similar situation arise in the future.

Reliefs available to the defamed

Monetary compensation

A settlement in respect of comments made on Facebook was reported in Irish newspapers in May 2015. This case involved a young child who was placed in foster care over three years ago. The birth mother of this child alleged that the foster parents posted defamatory comments about her on Facebook and, as a result of such posts, she claimed to be subject to ridicule and contempt and that her character had been damaged.

It was also alleged that their privacy was breached by the posts. The child’s birth mother issued proceedings on behalf of herself and her child against the HSE and the case settled for the sum of EUR 40,000.

Aggravated damages are provided for in section 32 of the 2009 Act but have yet to be awarded by an Irish court. However a decision from the UK (Cairns v Lalit Modi) may prove instructive on this point. Chris Cairns is a former New Zealand cricketer who played in the Indian Premier League (IPL). Lalit Modi, former chairman and commissioner of the IPL, tweeted from his personal account, “Chris Cairns removed from the IPL auction list due to his past record in match fixing….”. This was held to be defamatory and Lalit Modi was ordered to pay Chris Cairns GBP 90,000 in damages, of which GBP 15,000 was aggravated damages. The aggravated damage award was based on the “the sustained and aggressive assertion of the plea of justification at the trial”. This is particularly relevant as the defence of truth is also available in Ireland under the 2009 Act.

Apology

The first known settlement in Ireland involving comments made over social media involved a prominent businessman, Declan Ganley, and a blogger, Kevin Barrington, for defamatory tweets posted in December 2012. This case also utilised the apology provision under section 24 of the 2009 Act. Kevin Barrington stated “I wish to unreservedly apologise to Declan Ganley for the content of my tweets of 12 December 2012. In future I undertake not to defame Mr Ganley. To reflect my regret I have made a substantial donation to the Poor Clare’s.”

Offer of Amends

The concept of an offer of amends was introduced by section 22 of the 2009 Act. This has been available in the UK since 1996 and is routinely used there. It has given rise to deduction of approximately 50 per cent of damages where it has been used. An offer of amends is made prior to a defence being delivered and includes an offer to publish a correction/ apology and also an offer to pay compensation or damages.

The provision does not appear to have been used in a social media case but a recent decision of the High Court does however give guidance on how the section will generally be applied. In Christie v TV3 Television Network Limited, the plaintiff had been wrongly identified as the accused in a criminal trial on a national news programme. The defendants made an offer of amends at an early stage which was refused by the plaintiff. In assessing damages the trial judge decided that an award of EUR 200,000 was appropriate and she reduced this by 30 per cent to factor in the offer of amends. The plaintiff therefore received EUR 140,000.

Correction Orders

In the case of Tansey v Gill a correction order, which is available under section 30 of the 2009 Act, was successfully applied for by a solicitor in respect of comments posted about him on the website, www.rateyoursolicitor.com. The comments included allegations that the solicitor had committed criminal acts, engaged in corrupt and unprofessional conduct and engaged in dishonest appropriation of property. The correction order which was posted on the home page of the website states that “all of these allegations were totally untrue, baseless, without any foundation whatsoever and ought never to have been published.” Judge Peart commented in his judgment that “the internet has facilitated an easy, inexpensive and instant means of allowing unscrupulous persons or ill motivated malcontents to vent their anger and grievances against people where their allegations are patently untrue, unreasonable and unjustified.”

Summary

Cases involving defamation through social media websites are on the rise and can be expected to continue to increase, especially if there is a move towards Ireland as a litigation hub for defamation due to its less stringent requirements in relation to proof of harm. As seen from the cases discussed above, many of the provisions of the 2009 Act have been tested by the Irish courts already in a social media context, with the offer of amends and the correction order in particular being used to good effect.

However, the fundamental problem in this area of Irish law is that complainants must engage the legal process to seek relief. Not only is this often prohibitively expensive but it also takes time; a commodity which many victims of defamation do not have if they wish to limit the number of persons who can view an offending post on social media. To adequately address this issue, some form of amendment to the 2009 Act may be necessary as the only suitable legal mechanism at present is the injunction. This issue is presently being examined by the Irish Law Reform Commission in the context of cyber-harassment. However, proposals in this regard may not be sufficient to cover one-off events. More than anything else, a rapid take-down solution is what social media users in Ireland and across the world need to protect their good name and reputation in this era of social media.

IRELAND

Social Media and Defamation - The Irish Experience

Written by Fiona Barry and Mary Cooney,

William Fry

Fiona Barry

When Benjamin Franklin, one of the Founding Fathers of the United States, said in the 1700s that “glass, china and reputation are easily cracked and never well mended”, he was speaking in an era when the reach of a person’s expression was much more limited and, consequently, the risk of reputational damage was relatively restricted. However, the emergence of social media in the past decade or so and its omnipresence in the daily lives of many has drastically changed this picture.