Defaming somebody carries a heavy penalty in the Republic. At the most extreme end of the spectrum there is the Co Mayo sandwich maker who maliciously published a defamatory libel about a business rival on the Escort Ireland website. He recently pleaded guilty to a charge under the Defamation Act and is awaiting sentence. In 1999, a Dublin man, who had published serious allegations on the Internet about one of his former teachers, was convicted of criminal libel and sentenced to two-and-a-half years in prison. However, prosecutions for criminal libel are relatively uncommon in comparison with civil actions for damages. Losing a civil action can be extremely expensive. In the 1970s, the magazine Hibernia closed after it made a false allegation in relation to a charge of drink driving.
Prionsias De Rossa was famously awarded £300,000 after his successful libel action against the Sunday Independent in 1997, a sum so high that the defendants have appealed to the European Court of Human Rights, arguing that this infringes their right to freedom of expression.
But damages may be dwarfed by the costs of the action. In a recent case in England, the defendant sent various e-mails alleging that the plaintiff was a compulsive liar who was having affairs and refusing to support the children who resulted. Damages of £26,000 were awarded against the defendant, but his costs were estimated at £100,000. The possibility that awards of damages and costs at these levels could be made against any website or Internet service is a serious threat for any Internet business.
While the defamation laws that apply to physical newspapers are some of the most restrictive in Europe, those that now apply to the Internet may be even tighter. Although the Electronic Commerce Act 2000, has done much to confirm Ireland's position as an e-commerce hub, the wording of section 23 of the Act may prove broader than was intended. This section states: "All provisions of existing defamation law shall apply to all electronic communications within the State, including the retention of information electronically".
Usually, if an action for defamation is to succeed then the defamatory statement must have been "published", whether in a newspaper, in an Internet chatroom or in conversation down the pub. But the act does not simply apply the laws of defamation to the publication of a work on the Internet; instead it appears to extend them to the saving or retention of a work on the Internet. This may cause serious problems for anyone who is engaged in the retention of electronic data. An obvious example is the web-hosting services that are setting up in Ireland.
This apparent extension of the law may mean that if they should host a website that contains defamatory material, then they may not be able to avail of the "innocent disseminator" defence, which ensures that newsagents are not sued for selling newspapers that contain defamatory material. Similarly, it is unclear whether Internet service providers will be liable for "caching" defamatory material so that users can gain swifter access to it.
The EU's directive on legal aspects of electronic commerce contains extensive protections for service providers and webhosting services in these situations. Considering the number and value of web-hosting services attracted to Ireland recently, the implementation of this directive into Irish law should be a priority.
However, this directive will not protect users from what may be a considerable extension of defamation law. One vulnerable group are employers who may find themselves liable for material retained by their employees.
In 1997 in the UK, Norwich Union agreed to pay a rival insurance company some £450,000 in damages and costs after its employees sent e-mails questioning the rival's financial solvency.
In the Republic, under the Electronic Commerce Act, a company might also be liable if its employees retained such statements electronically. These concerns would be put to rest if the courts ultimately were to decide that where the Act refers to the "retention of information electronically" it means the "publication" of it - but if that were so, why did the Oireachtas not use those clear words?
While the Republic's defamation laws may cause problems for e-business here, in time the Internet may make them irrelevant. Irish Internet users can access American websites that will be protected by the US constitution's First Amendment, which provides: "Congress shall make no law . . . abridging the freedom of speech or of the press." In contrast to the Republic, the US has held that the right to free speech can outweigh the right to a reputation; in particular, "public figures" can succeed in an action for defamation only if they can show that the defamatory statement was made with "actual malice". This means more than just negligently failing to check the truth of a story - the American press cannot be required to suppress newsworthy stories just because they have serious doubts about their veracity, and it is accepted that this protection can extend to false as well as true stories. So if a prominent Irish person were to be defamed on an American website he might find it difficult to sue in the American courts. There is action that he could take here; he could put Irish ISPs on notice that they should stop connecting to that website, so depriving them of the defence of "innocent dissemination". If he were very determined, he might ask the Irish courts for an injunction to ensure that they complied with his request. He might succeed in this application, as the Constitution requires the State to vindicate the good name of its citizens, but enforcing any order that restricts access to the Internet, or any part of it, would be difficult. As the law stands, anybody who publishes or retains material electronically on the Internet in the Republic should be very careful. It is extremely difficult to predict how the law of defamation will apply to the Internet in the Republic. A service provider that carefully monitors all content which it hosts may place itself in the position of publisher and may not be able to rely upon the "innocent disseminator" defence. However, a service provider that does not monitor content may find itself liable anyway, but have forgone any opportunity to control and limit the content that it hosts. This dilemma will remain until the law is reformed or clarified. In the meantime, any website, service provider or Internet host that suspects, knows or is put on notice that it is carrying or allowing access to any potentially defamatory material should instantly remove that material or prevent access to it.
Denis Kelleher is a practising barrister and co-author of Information Technology Law in Ireland (Butterworths, Dublin).
deniskelleher@ireland.com