Can defamation law keep pace with technological change?
Much of the discussion of the impact of the internet on defamation law is framed around what life was like before it was invented. Yet anyone of college-going age now has little concept of life before the internet, nor is it necessary to frame the debate in those terms. The starting point for the discussion is now. In the beginning was the word, and the word was Google.
The major issue today is whether the law can keep pace with technological change. In procedural terms Irish courts have proven as adaptable as any elsewhere. It is possible to serve court documents on anonymous defendants by email or even through a private zone on a website like Facebook, once the court is satisfied this can be done appropriately. The courts have also been willing to use their powers to require internet companies to disclose information that might help people to identify those who have libelled them anonymously online.
But greater challenges are posed at a more fundamental level. At its most basic, defamation involves someone publishing something damaging about someone else. Principles of libel law forged in the era of the public meeting, the pamphlet and the book survived through the arrival of radio and television in the last century, so that defamation law still worked; it was still possible to answer the core question, who is the publisher?
Today defamation law finds it hard to answer that simple question. An “innocent publication” defence designed for news vendors and bookstall owners, who could not know the libellous content of everything they sold, has been extended to give the same protection to internet companies and website operators, but the law remains somewhat in flux.
Last year in the case of Tamiz v Google the High Court in London found Google was not the publisher of defamatory material posted by someone using its blog facility, the judge suggesting you could not hold the owner of a wall responsible for graffiti sprayed on it by someone else.
The Court of Appeal has overturned that decision, however, and likened Google to the owner of a notice board who, once aware that a defamatory notice has been pinned up, must either remove it or be liable for it.
More recently in Delfi v Estonia the European Court of Human Rights went further, and said a news website should be able to predict which articles might generate offensive or libellous comments, and be prepared to act in advance. This would seem to stretch the obligations of news site owners beyond the practical and, although not directly applicable here, the case may set a tone for future decisions. The second fundamental issue is whether the law can balance the right to freedom of expression, while vindicating the rights of the person who has been defamed. It is fundamental to our Constitution and vital to our democracy that justice is administered in public.
For the robust plaintiff, this may present no difficulty, but others are daunted by the publicity and the prospect of online criticism and abuse which may accompany a legal action. If the more vulnerable victims turn away from the courtroom because they cannot face all that will follow, can we say that the law is working effectively?
Thirdly, is there any prospect of defamation law operating consistently around the world? We have created a global communications system, but we do not have a global response to its problems. The strong position of freedom of speech in US law and culture contrasts with varying levels of commitment to the same principle elsewhere, even within Europe.
Those who seek to abuse online freedoms can avoid liability in one jurisdiction by operating from another, and the law has yet to address this obvious problem.
Perhaps international co-ordination only happens when countries feel compelled to act together, for example to boost trade or tackle international crime. But the victims of serious online defamation are random and dispersed, and their problems are theirs alone. For now, lawmakers do not feel the need for a co-ordinated response.
Finally, we might consider whether the internet and social media are changing us. Six years ago in the Atlantic magazine Nicholas Carr provocatively asked “Is Google Making Us Stupid?” and bemoaned the decline of his memory, his attention span and his intellectual rigour as he flitted from one thing to the next on the internet. He may have exaggerated, but it is clear that the internet may be changing how we take in information, how we think about one another, and what we are prepared to say about one another.
A remarkable aspect of the recent controversy involving former Conservative Party grandee Alistair McAlpine, falsely linked on Twitter to a child abuse scandal, was that his defamers included the respected columnist George Monbiot, and Sally Bercow, wife of the Speaker of the House of Commons. What impulse drove them, and people like them, to show that they were up to speed on the latest rumours? And if we are creating a world in which people will routinely put immediacy before accuracy, will it be possible for defamation law to hold the line and say: the individual’s reputation is still something worth protecting?
John Maher BL is a barrister and author of The Law of Defamation (Round Hall). This article is extracted from an address to the University College Cork Law Society conference 2013, “The Changing Landscape of Media Law”.