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.