Who is responsible for defamation on Facebook?
Analysis: Monasterevin incident shows the specific dangers of digital amplification
Facebook is coming under increasing pressure in several countries to introduce speedier and more transparent moderation policies.
What redress is available to someone who suffers an incident similar to what happened to David Murray last Friday in Monasterevin?
While publishers have control over the reader comment sections on their own websites, and usually have systems in place for taking problematic material down, Facebook is generally regarded as a separate, third-party platform. KildareNow issued an unreserved apology on Saturday.
Even though, by removing its original post, KildareNow effectively deleted the entire comment thread, including the offending material, publishers – and, indeed, individuals – posting to Facebook operate on the basis that they are not responsible for comments, responses and shares by other users.
Responsibility therefore rests primarily with the person who posted the picture of Mr Murray and misidentified him as Anthony Luckwill, if that person can be identified (for example, if a screen shot was taken of the post before it was deleted).
If not, Mr Murray can ask Facebook to identify the author, but this will probably require an order of the High Court (called a “Norwich Phamacal Order”, after the case in which it was first used).
What responsibility, if any, does Facebook itself have? Under current European Union law, an online host such as Facebook is not liable for illegal activity, or information placed on its systems by a user, so long as it does not have “actual knowledge” of the activity or information.
Upon obtaining such knowledge, the host must act expeditiously to remove or to disable access to the information.
Therefore, Facebook would be liable only if the offending post had been brought to its attention and it had failed to deal with the matter within a reasonable time.
This very issue is currently the subject of active political debate in several countries, with Facebook coming under increasing pressure to introduce speedier and more transparent moderation policies. In this case, however, there is no indication Facebook was informed of the post before it was deleted.
It would be understandable if the prospect of taking a potentially long and expensive civil suit against an unknown individual who may have few assets did not appeal to people who have suffered defamation in a Facebook post.
However, several cases of this sort have been successfully recently. A Co Monaghan man who posted a defamatory item on Facebook about the national director of the country’s game shooting body was ordered to pay €75,000 in damages last June.
There is another facet to this cautionary tale. News publications inevitably use social media to reach and engage with their local communities.
Stories about predatory paedophiles on the loose are likely to find a large audience, and some media companies may defend them as a legitimate public service.
But the incident in Monasterevin illustrates how quickly digital amplification of such stories can spark misinformation and mob panic.