Online defamation cases increasing

[toxic avenger]

The BBC has a report showing an increase in cases in England and Wales involving alleged defamation by people using online forums, twitter, social networks etc. One can assume that this reflects an inevitable trend generally, given the internet's growth in importance as a means of disseminating information.

BBC News - Online defamation cases in England and Wales 'double'

The number of court cases brought by people who say they have been defamed online has more than doubled in a year, experts have said.
Internet-related libel cases in England and Wales rose from seven to 16 in the year ending 31 May, legal information firm Sweet and Maxwell said.

The increase has been linked to a rise in the use of social media sites, such as Facebook and Twitter.
The total number of defamation cases brought to court rose from 83 to 86.

The Libel Reform Campaign has put the case that it is unreasonable to expect ISPers and forum operators to be held responsible for every single thing posted on their sites given the speed and volume involved.

A spokesman for the Libel Reform Campaign said the draft Defamation Bill, currently going through Westminster, needed specific action to make it easier and less costly for website operators to mount a public interest defence, if they are taken to court for defamation.
"We need the select committee looking at the draft Defamation Bill to make concrete proposals to stop legal threats against internet hosts bringing down entire websites," added the spokesman.

It is long past time for meaningful libel reform in Ireland too. The burden of proof should be shifted from being entirely on the defendant, one reason that the great and good were able to get away with wrongdoing for so long without accountability. This area should be addressed too - it is not reasonable that the owner of sites such as the one we use here, or the ISPers who run them, are at risk of losing their shirt for comments made in dark corners of their website that they might not even be aware of (even with a team of mods it is extraordinarily difficult to be aware of all things at all times).

There should not be this legal limbo whereby operators have to move sites offshore in the hope (perhaps justified, perhaps not) that they'll be protected. Forums such as this are a valuable social service, those who go to the trouble of setting them up and running them should not be penalised for doing so.

[sondagefaux]

Section 4 of the EU's E-Commerce Directive provides protection for ISPs and the operators of sites like this:

Section 4: Liability of intermediary service providers
Article 12
"Mere conduit"
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.
Article 13
"Caching"
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients of the service upon their request, on condition that:
(a) the provider does not modify the information;
(b) the provider complies with conditions on access to the information;
(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;
(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and
(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.
2. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.
Article 14
Hosting
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.
Article 15
No general obligation to monitor
1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.

EUR-Lex - 32000L0031 - EN

[toxic avenger]

That clearly hasn't translated into English law yet, or else the Libel Reform Campaign would not need to highlight the issue. Is there any indication of Irish law being changed to reflect the directive?

And does the directive cover site owners or just the hosts?

[Didimus]

"English law requires that most business websites supply certain information.The basic information requirements are set out in:

• The Electronic Commerce Regulations (EC Directive) Regulations 2002 (the “Ecommerce Regulations”). These Regulations implement into English law Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (the “Ecommerce Directive”);"

link

Irish Law

[sondagefaux]

That clearly hasn't translated into English law yet, or else the Libel Reform Campaign would not need to highlight the issue. Is there any indication of Irish law being changed to reflect the directive?

And does the directive cover site owners or just the hosts?

It's been transcribed into UK law since 2002 (E-commerce Regulations | Business Link) and Irish law since 2003 (E-commerce regulation: a tangled web | The In-House Lawyer).

The law covers the service providers, whether they are the owners or not.

[toxic avenger]

In which case, why are the Libel Reform Campaign pushing for extra legal protection? There is clearly a risk of defamation suits against service providers...

"We need the select committee looking at the draft Defamation Bill to make concrete proposals to stop legal threats against internet hosts bringing down entire websites," added the spokesman.
The UK government said the legislation, to reform libel laws in England and Wales, will help ensure people can state honest opinions with confidence.
Calls to give greater protection to "secondary publishers", like internet service providers and online discussion forums, has been put out to consultation.

Regardless, Irish law is of more interest - this site had to be moved offshore (whether legally justified or not) after the 'unpleasantness' here in 2008. The libel laws in Ireland are massively loaded in favour of plaintiffs too. Why did we see this site being moved out to an American host?

[Didimus]

Regardless, Irish law is of more interest - this site had to be moved offshore (whether legally justified or not) after the 'unpleasantness' here in 2008. The libel laws in Ireland are massively loaded in favour of plaintiffs too. Has this directive been implemented into Irish law, and if not, why not? If it has, why did we see this site being moved out to an American host?

Irish Law

[artfoley56]

Irish Law

updated Irish Law

[toxic avenger]

Irish Law

Yes, sorry, missed that post. So an Irish forum owner is protected against liability for someone posting defamatory material?

[toxic avenger]

updated Irish Law

This seems to be the relevant bit. A defence may be presented that he/she is not the author if:

(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.

Does that mean that this site needn't be hosted abroad?