Q&A: What can you post online when there is an active legal case?

The perils of commenting have been brought into sharp focus

The potential perils of online publishing, which is subject to the same defamation and contempt of court laws as mainstream media, have been drawn into sharp focus following the killing of Ashling Murphy. It takes seconds to post on social media but the fallout can last much longer. It's important to think before you post, particularly when a matter is the subject of court proceedings or a Garda investigation. Being fair and accurate is crucial. The potentially serious consequences for overstepping the legal lines include a fine, and even jail, for contempt of court or damages for defamation. Here's a guide to help stay on the right side of the law when you're online.

What’s the legal position when a person is arrested in connection with a criminal offence?

The matter is deemed to be sub judice, meaning it’s before a court or judge, and there are clear limits on what can and cannot be said. From the time an individual is arrested/charged, the facts are for a court to decide. An individual arrested and questioned in connection with a criminal offence should not be identified prior to being charged.

Why can’t more details be given?

Because we operate in a democracy governed by the rule of law. An accused is entitled to the presumption of innocence unless and until proven guilty. Public discussion of the case, which can sometimes be ill-informed, could prejudice a jury whose role is to decide the facts.

So what can I say?

It’s best to say nothing when a matter is subject of criminal proceedings. There are good reasons for this, including that information circulated about an accused or crime is sometimes inaccurate and whipping up public opinion against accused people has contributed in the past to people being convicted of offences they didn’t commit.


What happens if an arrested/charged person is identified?

It depends on what is said. Anyone who publishes negative material about someone who is arrested leaves themselves open to contempt of court and/or defamation proceedings. When material about a charged person, or details of the offence with which they are charged, is published, the consequences can be serious. Apart from exposing its publisher to defamation and contempt proceedings, such publication has potential to derail or even collapse a jury trial.

What does defamation mean?

Defamation is the publication to at least one other person of comment, inaccurate statements, false reporting or other material capable of causing damage to the reputation of a person, business or other organisation. The Defamation Act 2009 defines a "defamatory statement" as one "that tends to injure a person's reputation in the eyes of reasonable members of society". Anyone suing for defamation has to show there was "publication, by any means" of defamatory material concerning them to one, or more than one, person. The Act applies to ALL publications and there is a rising number of cases alleging defamation and contempt of court over online content, including social media posts. A couple received €30,000 damages against their neighbour in county Donegal who had put up a Facebook post making allegations including of an affair.

Surely I can say what I like to my friends and family in my WhatsApp groups?

There’s a risk in saying what you like, even on WhatsApp, if the content is defamatory. Online defamation is the publication of defamatory statements in e-mails, web postings, Facebook posts, tweets and mobile phone group messaging such as WhatsApp groups. A retweet or simple forwarding of a message can be akin to acting as the original publisher, particularly if further comment is added.

What about the likes of Google, Facebook and Twitter? Can they be sued over what’s posted on their sites?

E-commerce regulations mean intermediaries such as Google, Facebook and Twitter are excluded from liability under a "hosting defence" for material published on their systems where they are unaware of the defamatory, false or criminal content. If intermediaries are given notice of defamatory material, they are expected to take it down speedily if they want to benefit from the hosting defence and are not deemed to be a publisher. Orders may also be sought against internet service providers aimed at identifying posters of defamatory material. Anonymity online is not absolute due to protocols on device and internet addressing.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times