I’ll start this with a caveat of “every time something like this comes into the site, it’s taken very seriously and investigated fully” so I don’t want anyone to think that we treat these things as frivolous or an unnecessary use of our time.  I however am making light of the sorts of things we get for comedic value, because this is my fraking blog and I’ll write what I want ).  But, I can assure you, I have had all of these interactions many times, obviously in a much more professional manner.

So here’s a breakdown of the general in’s and outs of what happens when someone submits a legal complaint on the grounds of defamation to Boards.ie.

“I Googled my business – JoeBloggsAcme Ltd – and found some terribly damaging comments made about my business that have cost me 6 months of sleep and were absolutely definitely made by my competitors – I’m certain of this despite the fact that I can’t see their IP address or their sign-up details and I’m completely ignoring the fact that it says they’ve been a member of your site for 6 years and have several thousand posts to their name.”

We reply with a “Please give us the link to the content in question and we’ll be more than happy to investigate it.”

“Just Google JoeBloggsAcme and you’ll find it.”

“No, we won’t, you need to point out to us specifically where this is, Google personalises search results based on your search history.”

“I don’t understand all these technical questions, you’re the internet, you do it.”

“You can just copy the address from the bar in your web browser and paste it into this email and send it to us.”

“I don’t know what you’re on about, I don’t know how you expect people to answer all this technical jargon.”

“Is there a young person in your office who knows how to computer?”

“I’ll get my nephew, he made our website three years ago.”

A day or two later, we’ll get an email with a link to a page somewhere on Boards.  For reference and for an immediate investigation, you can link to a specific post by right clicking and copying the address of the link on the post number that appears on the top right corner of every individual post.

“We’ve reviewed the thread in question, we can’t see anything defamatory on that page nor any mention of your business.”

“It’s right there, look at it!”

“This is the link you sent us, can you please tell us what post number it is?  We can’t see it.”

“Oh, that’s not the right one at all, look, just Google it, you’re wasting my time now, I’m going to be talking to my solicitor tomorrow if you don’t sort this out.”

“We have made several requests for you to send us the link to the post you have a problem with, however, if you can’t provide it, maybe your solicitor can, please have them email us or write to us directly, we’ll be happy to deal with them.”

At this stage we’ll either get a solicitor’s letter within a week or they’ll realise that they can save themselves €100+ by simply doing what we’ve asked and letting us investigate the thing for them.

So, we investigate.  If a comment is made about JoeBloggsAcme Ltd that is defamatory, then we immediately take it down.  This could be something like “JoeBloggsAcme Ltd sells fake goods” or “JoeBloggsAcme Ltd doesn’t pay it’s staff minimum wage” or any number of things.

But what if it’s true?

In a lot of ways, and it pains me to say this, I don’t care; I can’t afford to.  Boards.ie cannot afford to go to court on the off chance something someone said on the site said might be true or false.  That’s the reality of how the law works.  It’s a gag order that can be wielded with impunity and more or less without any fear of reprisal.  Many times I asked people if they’re prepared to go to court and defend their statement and almost every time they’ve freaked and said not a chance and that’s that.  If the people who make these statements aren’t prepared to stand by them, then we certainly can’t.

So the statements get deleted, an email gets sent to the person who made the complaint thanking them for bringing it to our attention (because we genuinely and sincerely have no interest in the site being a platform for defamation) and a note to say that they’re welcome to get in touch with us any time again in the future should they need to.

I can only think of a few exceptions to this when I’ve asked the person involved  if they can show that their statements are true and they have been able to show me where they successfully took the company involved to court and had a judgement awarded in their favour.  They were even able to link me directly to where the case’s results.  In those cases an email gets sent saying “Sorry, but this is true, here’s the proof, we’re not taking it down but we’ll gladly post a statement on your behalf” (actually, any company reading that wants to do this, we’re only too happy to help – this is good for you, it’s good for us and most importantly, it’s good for our members).

There are some variations on the themes above – of particular note are the times when people (and most often a solicitor) will demand the identities of the people who made these posts.  This is not possible for many reasons but mostly:

1. We have no idea, all you’re required to give Boards.ie to sign up is an email address, a password and of course, a username.
2. IT IS ILLEGAL FOR US TO GIVE YOU THIS INFORMATION WITHOUT A COURT ORDER OR CHIEF SUPERINTENDENT OR COLONEL’S SIGNATURE.

I will talk about the Data Protection act at another time.  It’s a really good law and it’s being handled by an exceptional team in the office of the Data Commissioner.

So there you are, a little insight into the process.  It’s far from complete and there are many more things that can and will happen on any given case.  As I said at the start of this post, we really do take them all extremely seriously, but please allow me to have a little bit of fun when talking about it.

Here’s a link to the 2009 Defamation act: http://www.irishstatutebook.ie/2009/en/act/pub/0031/index.html

This is getting a lot of airtime at the moment thanks to a non-trivial mess caused by RTÉ and based on comments made by Panti Bliss on one of their programmes.  Lots of reporting has been made on the topic, I don’t need to repeat it.  You can see a lot of the news about it over here on TheJournal.ie (in the interests of disclosure, TheJournal.ie is a part of the same group that owns Boards, so they are my colleagues).

However, there is a massive difference between how the law works and what people think is “fair.”

Before we go any further with this piece, I want to clarify that I am not a legal professional, I have had no formal training in law and I don’t suggest that anything written here be taken as definitive.  I am however someone who acts to take down defamatory content from where I work on a weekly basis.  I have a better “day-to-day” understanding of defamation law than most people.

The Defamation act defines a defamatory statement as

a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly;

It goes further to say:

statement” includes—

(a) a statement made orally or in writing,

(b) visual images, sounds, gestures and any other method of signifying meaning,

(c) a statement—

(i) broadcast on the radio or television, or

(ii) published on the internet, and

(d) an electronic communication;

So, what this means in very basic and straightforward terms, if you say or write something that can be seen as damaging to the reputation of a legal entity (be that an individual person or an organisation), then you have defamed them.  Did your parents ever say “if you can’t say something nice, don’t say anything at all?”  That’s what this act puts into law.

It is also defamatory to endorse a defamatory statement without making it yourself.  So holding up a big arrow pointing to a statement made by someone else is in and of itself defamatory.  So if you re-tweet or link to a defamatory statement, you too have defamed the subject of the statement.

Now, there are of three defences to this and I’ll explain them as best I can.

The Defence of Absolute Privilege [link]

Basically, some institutions are exempt from defamation because they need to be able to speak without restriction.  These include the Dáil, the Seanád, the European Parliament and the courts.  So if you’re in court as a witness for example, you can make a statement about a defendant that would otherwise be defamatory without fear of that coming back on you as defamation.

This defence also extends to “fair and accurate reporting” about such statements or records so talking about a statement made under Absolute Privilege is safe.

The reasons for this should be pretty straight forward – if a government can’t discuss something openly then they’re in trouble.  Similarly, if a court trial can’t hear all evidence or witness statements, then it can’t work properly.

The Defence of Qualified Privilege [link]

I’m less clear on this one, but as I understand it this means that if someone has to write up a report that they then have to give to another and the content is defamatory, then they have this defence.  The best example I can think of is an investigating Garda handing a report to another member of their team that might implicate someone as having committed a crime which is being investigated (and therefore hasn’t gone to court yet).  Obviously the Gardaí need to be able to have a proper discussion about a case without having to worry that by simply making a note of their suspects, they can be sued for defaming them.

I think that’s fair enough, our peace keepers need to be able to do their job.

The Defence of Truth [link]

Short and sweet this one – if you can prove a statement is true then it is a defence.  This is the most common means of shutting down a claim of defamation.

It’s extremely important to note that these three options for defence of a statement do not magically turn the statement into “not defamatory.”  It’s still defamation, it’s just that you can’t be charged with having breached the act if you have either absolute or qualified privilege or if it’s the truth.

OK, so lets say you feel like you’ve been defamed and you wish to take action, who do you go after.  Well, obviously the person who made the statement is the one you should be held accountable, right? I don’t think anyone can argue that.  However, if it’s something written by someone and printed in a newspaper or magazine, then the publisher can (and will) also be targeted because they have facilitated this defamatory statement.  What if it’s a statement made by a guest on a TV or radio programme?  Well the broadcaster is now a target too – hence RTÉ’s payout to those defamed in the Panti issue.

What if someone wrote it on a website?  In law, the website is the publisher, so if it’s a personal blog like this, then I’m also the publisher.  If it’s Facebook, Twitter or Boards, they’re the publisher.

So these websites are legitimate targets despite the fact that they had no knowledge of the content in question.  We do thankfully have one single “get out of jail” clause thanks to the EU E-Commerce Directive which was signed into law in Ireland as S.I. No. 68/2003.  These sites are considered Intermediaries and therefore have the defence of being a “mere conduit” for any statements made on our platforms.  This is thanks to a case taken against Betfair in 2009 and the particulars of that can be reviewed on TJ McIntyre’s blog here.  Suffice it to say, a “mere conduit” means that we’re simply the method by which the statement is delivered and are totally oblivious as to what it is.  Similarly, a phone company doesn’t actively monitor the thousands of conversations that are ongoing at any given time (they leave that to the NSA ). Once the site in question is made aware of something, then they’re no longer a mere conduit, so has a responsibility to remove that content should it be necessary.

The most important thing to remember about this law is that it completely ignores the idea of “innocent until proven guilty.”  The defendant must prove that they are entitled to absolute or qualified privilege, or that the statement is the truth.  There is no investigation into any of this made before someone is served with a summons or injunction.  Given the prohibitive cost of the legal system, no one but the wealthiest, or bravest (or perhaps stupidest) can afford to be dragged into the High Court to defend what may have been an off the cuff remark or an experience they had with a company that went very badly.  The average person is gonna freak out with served with this sort of threat which only goes to show that the legal system we have is fundamentally flawed and operates on a basis of “pay to win.”  But that’s a story for another day…

I will put together another post about some of the real world encounters I have had with this law, but for now, I just wanted to write up my understanding of it and the how and why it works the way it does as the frankly vast gulf of knowledge being displayed by the public on this over the Panti related issue is going to get some people in trouble if the people being mentioned are of a mind to carry on with their legal actions (and like it or not, they’re just as entitled to the protection of the law as the rest of us).