On defamation…

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).

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