The John Gill case highlights the legal difficulties surrounding the publishing of libellous comments on the internet, writes John Collins
This week's High Court proceedings to get the Rate-your-solicitor.com website to remove comments about a barrister once again highlighted the difficulties associated with online defamation. Dublin barrister Jayne Maguire is seeking damages for defamation and invasion of privacy based on comments about her posted by users of the site. The decision this week was in relation to enforcing an injunction to get the content about Maguire taken down.
John Gill, the Co Clare man against whom Maguire took the case, claimed he was not responsible for the website and could not take any content on the site down. However, the content was removed in advance of the deadline set by the High Court.
The widespread availability of blogging tools has made internet publishing simple for anyone who has anything to say. While much of what bloggers write is uncontroversial, many more cases involving defamation or libel are likely to be heard in the Irish courts in the coming years.
The global nature of the internet means that tracking down who exactly publishes a website or operates the computers from which it is run can be difficult and expensive. And it is increasingly easy to publish anonymously online. Free blogging tools such as Google's Blogger require minimal personal information, and someone who doesn't want to risk legal action can easily make their posts from internet cafes or other public- access computers.
Those who wish to make particular claims that they feel would fall foul of Ireland's libel and defamation laws have long taken advantage of stronger freedom of speech rights overseas.
One of the first internet sites to do so was called Cogair, which for a brief period in the late 1990s was hot news. It anonymously published allegations about politicians, dissident republicans and the judiciary that no Irish publication would have taken the risk of carrying. Subsequent court cases and tribunals proved that much of what Cogair said was true. But those writing the site felt they could not host it in Ireland, where the libel laws require a publisher in a libel case to prove that the allegations are true, rather than the damaged party having to prove it is untrue, which is the case in other countries.
A search on the internet shows that the Rate-your-solicitor website is registered in Riga, Latvia, to an organisation called the Center for Free Expression. Previously the web address had been registered with a web hosting company in Moscow and prior to that it had used a company in the US, but they complied with a court order to block access to the domain.
One of the first cases of internet defamation to reach the Irish courts was in 1999, when a man was jailed for two and a half years for posting on message boards and sending e-mails that alleged one of his former teachers was a paedophile. In 2001 a Mayo man paid substantial damages to a rival in the sandwich catering trade after he was convicted of defaming the woman by advertising her as a prostitute on a website.
More recently concert promoters MCD initiated legal proceedings against Boards.ie, a website that hosts message forums on a range of topics, following a discussion on the site that made accusations about failings in security at last summer's Oxegen festival. Boards.ie removed the offending posts and no longer allows discussions about MCD or concerts that it hosts.
MCD was contacted this week by The Irish Times to confirm if it was proceeding with the legal action, but a spokesperson said the company would not be able to respond in time for this article.
According to TJ McIntyre of Digital Rights Ireland, a lobby group for the defence of civil, legal and human rights online, cases such as this underline the differences between Irish and US law in this area. He says that under current Irish law the host of a website can be seen as a publisher and can be liable for content on the website, even if they didn't write it themselves, once they are made aware of it. (In contrast, in the US, once the person who posted the content is willing to stand over it, the host can keep it on the internet and the case proceeds to court.) As a result, hosting companies here have erred on the side of caution and removed any content that they receive a legal communication over.
So, media organisations or internet companies that allow the public to post comments on their sites have to be extremely careful. Comments posted on The Irish Times website Ireland.com are vetted by an online journalist before they are published.
Visitors to blogs can also leave comments that could potentially leave the blogger open to legal action. However, bloggers do not have the back-up of a large media organisation and many are clearly not as familiar with the legalities of publishing as professionals.
"People who work in technology often make the bland assumption that US law applies here," says Fergal Crehan, a barrister who specialises in internet law and is himself a blogger. "They are reading US blogs so they just assume that what they read about there are universal legal terms but there is vastly more freedom of speech in the US than here."
He says there are no legal obstacles to taking a case against a website located overseas that defames an Irish person and is available in Ireland. "Defamation is about damage done to your reputation so you can take an action wherever someone reads it and wherever your reputation is. There is no problem with internet libel as such - it's a publication just like any other."
But there are practical issues associated with establishing who to pursue. According to Crehan the injured party would first have to get an order from an Irish court, get that enforced by a court in the jurisdiction where the site is located and then take a defamation case back in Ireland. Not surprisingly, relatively few people have decided to go to that trouble and expense.
Current laws and the cost of litigation also mean that bloggers can often be relatively easily persuaded to remove content that someone takes issue with.
THERE WAS OUTRAGE when US website Ratemyteachers.com established an Irish site in 2004. At that time, the Joint Managerial Body/Association of Management of Catholic Secondary Schools said because the site was based in the US, there seemed to be little that could be done to shut it down.
While those whose services are discussed on sites such as Ratemyteachers.ie or Ratemyhospital.ie may not be particularly happy about it, the internet has injected a dose of democracy into the relationship. But on Rate-your-solicitor the discussion of solicitors regularly veers into personal comments rather than describing the service they offer.
One solicitor is called "the greatest liar in the whole profession", while accusations are made that another uses cocaine. Posters to the site also suggest that multiple posts are from the one person, while other users who have come on to the site to say that comments were falsely made in their name.
A NUMBER OF solicitors and firms listed in the site's "Hall of Shame" declined to comment when contacted by The Irish Times. One did say, however, that they view it in the same way as "writing on a toilet wall". However, while writing on a toilet wall has a limited audience, a website can potentially be accessed by millions of people around the world. The technical architecture of the net also means that even if a website is removed from the web, savvy users may still be able to access the information. Content from websites is "cached" or stored on other computers around the net so that it can be displayed more quickly when someone requests it. For example, in a list of Google search results there is a link to view cached versions of the web pages in question, which may still contain content that has been removed from the actual page. Sites such as the Internet Archive (www.archive.org) take snap shots of websites at a particular point in time and store them in perpetuity.
Yesterday afternoon new posts critical of Jayne Maguire appeared on Rate-your- solicitor.com, and it will be interesting to see how long they remain there. Clearly there is an appetite for change, or at the very least a clear legal decision, on both sides of this argument. A case such as Maguire v Gill may go some way towards establishing legal precedence.
But it seems that, despite the first review of Irish libel and defamation having taken place as far back as 1992, there is little chance of the current Defamation Bill making it through the Oireachtas before the next general election.