Friday, 21 February 2014

Chilling effect on the internet?

This story originally caught my attention when I saw a tweet from Niall O'Dowd as I boarded a plane for a week's holiday in the U.S. Virgin Islands (that's not relevant to this post, I just like rubbing it in).

O'Dowd's tweet linked to a story in Irish Central (his U.S.-based news website), outlining the circumstances under which a story by John Spain relating to the salary of the Chief Executive of the Irish charity REHAB had been taken down after legal threats from Ms. Kerins' solicitors.  I have made reference to Angela Kerins in a previous post here (REHAB this week released her salary, just FYI: €240,000.  No, I did not accidentally slip on an extra digit.)

O'Dowd stated that the site's host, Clickability, had been warned to take down the story, but didn't actually say that it had been taken down (which would have been, from a legal perspective, a very surprising decision on their part.)  After having read the story I was surprised to notice that the story O'Dowd was referring to was no longer on the site, particularly given O'Dowd's statement in the article "Thank God for the First Amendment" and so tweeted to him asking about it.  I received no reply, so was therefore interested to see this article in Tuesday's Irish Times.

Niall O’Dowd to seek legal advice after online opinion article about Rehab taken down - The Irish Times - Tue, Feb 18, 2014

As the Irish Times revealed, the web hosting company took down the 'offending' story on foot of a solicitor's letter, which apparently cited "European Commission directive under which the host of a website may be liable for illegal information on that site."

Last year the European Commission withdrew a new directive on 'Notice and Action', designed to put in place EU-wide protocols for the removal of offending content from websites, largely modelled on the American equivalent; a new version of the directive is apparently forthcoming later this year.

In its absence, however, the EU directive that the solicitors referred to has to be Article 14 of the 2000 Electronic Commerce Directive, given effect in Irish law through paragraph 18 of the European Communities (Directive 2000/31/EC) Regulations 2003, which transposed Article 14 of the directive almost verbatim into Irish law.
1. An intermediary service provider who 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 —
(a) the intermediary service provider 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) the intermediary service provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
2. Paragraph (1) shall not apply where the recipient of the service is acting under the authority or the control of the intermediary service provider referred to in that paragraph.
3. This Regulation shall not affect the power of any court to make an order against an intermediary service provider requiring the provider not to infringe, or to cease to infringe, any legal rights

What initially caught my attention was the fact, as intimated by the Irish Times story, that the solicitors appeared to refer the US hosting company to the European Commission directive, rather than the Irish statutory instrument which gave effect to it in Irish law (as any law student will glumly remind you, directives do not have direct effect in a member state's domestic law until legislated for in the member state).  While not being familiar with the specific legislation, this immediately jumped off the page at me as sounding like a solicitor trying to intimidate a party who has probably little understanding of EU and/or Irish law.

A cursory examination of Article 14 of the Directive makes clear the its purpose is to a large extent to exclude web hosts from liability for unlawful or defamatory content that is uploaded by their customers/users.  It does, however, place a duty on hosts to "act expeditiously to remove or disable access to the [unlawful/defamatory] information".

This raises a number of questions, foremost among which is does that duty arise the moment that a party alleges the information is defamatory?  It would be surprising if the answer was yes, as it would allow potential Claimants to exert a "chilling effect" on web hosts, simply by claiming that content was defamatory.  Are web hosts, after having taken content down on foot of a solicitors' letter, going to put it back up, presumably on the basis of assurances from the author that it is not defamatory or that no defamation proceedings have been issued?  Hardly.  Indeed, removing the post and then republishing it would almost certainly wipe out the ISP's exclusion from liability.

It would be all the more surprising were this the case if the legal device that permitted such a chilling effect were one designed to exclude web hosts to a very large extent  from legal liability for hosting defamatory material.

But of course, the 2003 Directive is not the end of the legal story: it has to be read along side the Defamation Act 2009, s.27 of which offers the defence of "innocent publication".
27.— (1) It shall be a defence (to be known as the “ defence of innocent publication ”) to a defamation action for the defendant to prove that—
(a) he or she was not the author, editor or publisher of the statement to which the action relates,
(b) he or she took reasonable care in relation to its publication, and
(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.
(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—
(c) 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 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.

The important point is that a defence is available to web hosts.  I am unaware of Irish case law that deals with the issue of at what point a web host obtains knowledge or awareness of unlawful activity, after which a failure expeditiously to remove the offending material will end the web host's exclusion from liability.

However, the English High Court has dealt with this issue in Tamiz v Google [2012] EWHC 449, which would be of strong persuasive authority should the same point ever be litigated in an Irish court.

In his judgment, Mr. Justice Eady held that Google (through its Blogger platform) was not a publisher at common law, but that even if it were it had a defence through the English 1996 Defamation Act (now replaced), and by means of Article 14 of the 2000 E-Commerce Directive.  As a commentary on the case noted:
The decision on the E-Commerce Directive is important, as it concludes that if an intermediary is merely on notice that content is defamatory, this does not entail that the intermediary will lose its defence.  More is generally needed by way of notice.
 S.27(1)(c) is key in the decision, as the defence offered in s.1 of the English 1996 Defamation is exactly the same as that in s.27 of Ireland's 2009 Defamation Act.

Eady J. concluded that, even having been informed that the comments in question were defamatory, and having informed the blogger as such and requested that they be removed, Google had still not "done anything to cause or contribute to the publication" of the defamatory statements.  As a result, Google's s.1 (in the Irish context s.27 "innocent publication") defence applied.

Eady J. went on to state, with regard to Article 14 of the E-Commerce Directive, that simply informing an ISP that they were hosting defamatory material was insufficient to put them on notice: a statement may be defamatory but still not be unlawful if the author or publisher has a lawful defence.  The Claimant/Plaintiff would have to demonstrate why the material is unlawful to satisfy the requirements of the Directive: in other words, the web host does not have to take the Claimant/Plaintiff's word at face value, which is precisely what Irish Central's web host appears to have done.

The English Court of Appeal was, however, more circumspect, having concluded that Google was a publisher at common law after having received notification of the allegedly defamatory comments, and following on from that commented that Google's defence was not unassailable, as Eady J. had indicated.

The Court did not go on to consider, however, whether or not on the facts Google had a defence under the E-Commerce Directive itself, which leaves in place that part of Eady J's judgment (I suspect partly in anticipation of the passing of the UK 2012 Defamation Act which allows a Claimant to sue an ISP for libel only if the Claimant is unable to identify who actually posted the defamatory comments.  It also makes provisions for a formal protocol for notice and action, in the absence of one coming from Brussels).

So, where does that leave Niall O'Dowd in terms of European and Irish law?

In short, having taken down the story, Irish Central's ISP would be open to potential liability were it to re-post the material that was alleged to be defamatory.

After receiving notification of the allegedly defamatory statements, is Irish Central a publisher for the purposes of the Defamation Act?  I would be surprised if Irish jurisprudence departed from English (and other common law jurisdictions such as New Zealand) law on this point, so the answer is probably yes.

Had they not removed the story after receiving notification of the allegedly defamatory content, would they then be causing or contributing to the publication of the statement?  The logic of the Court of Appeal that if they are a publisher then they may well be contributing to the publication of the statement is, I think, unassailable.  A defence, then, is not necessarily available.

Which leads on to the final question: would Article 14 have provided them with a defence, by virtue of the assumed failure of Angela Kerins' solicitors to particularise the detail as to why the content was defamatory (presumably addressing any potential defences that may be available to the publishers)?  Yes, I think, but it'd require a trip to court to prove it.

So, what are the lessons from all this?

1) Irish defamation law still needs clarification with regard to the duties and rights of ISPs and web hosts, preferably without having to wait for case law to fill in the gaps (as the English have done, to a degree, with the Defamation Act 2012).

2) The European Commission needs to urgently bring forward a Notice and Action directive that clarifies the protocols to be followed.

3) Did Irish Central's host make a mistake in taking down the story?  They certainly very strongly erred on the side of caution, but given the still grey nature of a lot of the law in this area (as best as I understand it), I don't think their response was an unreasonable one.

My advice would be to them to rewrite the terms of their agreement with Niall O'Dowd, under which they agree to pass on any requests made to them without taking action themselves in return for an indemnity.

The big takeaway, though, is that the law is still a mess in this area in Ireland.

This post was written here:

(Totally gratuitous holiday shot).

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