Online media suffer inadequate legal protection (SBP – 27 August 2006)

My article from today’s Sunday Business Post:

Irish law is inadequate in its protection of those involved in online media, according to TJ McIntyre, barrister and chairman of lobby group Digital Rights Ireland (DRI).

Under eCommerce legislation, ISPs (Internet Service Providers) are offered some protection ‘‘but that doesn’t cover the likes of bulletin boards or blogs, for example,” said McIntyre.

The upcoming case between popular Irish discussion site boards.ie and MCD, whose solicitors served legal papers on the website’s owners earlier this month, has brought attention to the way the law in Ireland applies to online media, specifically in regard to defamation and anonymity.

While many believe that hiding your name or other personal information will protect you, this is not the case.

‘‘Anonymity online is an illusion – it only takes a day in the High Court to get someone’s identity,” said McIntyre.

In a recent incident in England, Michael Keith Smith, a member of the UK Independence Party, won a defamation case after claims were made against him in a Yahoo! chatroom.

Tracy Williams had anonymously made her accusations, but was exposed when Smith obtained a court order requiring the site operator to disclose her identity.

There is also the issue of who can be sued. Irish law holds the publication owner responsible for the content in its publication, regardless of the author.

In an online context this means that comments published in a public forum or the comment section of a blog will be treated as the comments of the site owner, even if they are not.

The law is a great disincentive to doing business online – ‘‘People won’t set up websites if they think they will be held accountable for what other people say on their site,” said McIntyre.

‘‘It’s not financially feasible for small companies to risk going to court like that. Even if you win, you will be greatly out of pocket as a result of it.”

The internet does offer more covert avenues for people seeking to have content removed, however. As eCommerce legislation rules the hosting company liable if they are aware of any wrongdoing upon which they fail to act, most such companies will pull content as soon as a complaint is made against them.

McIntyre feels the willingness to pull content without investigating it first is a major problem and one that has no legal recourse for the content owner.

‘‘The situation is ripe for abuse…it’s a form of privatised and cheap censorship that’s quicker than going to court,” said McIntyre.

In an experiment by Dutch lobby group Bits of Freedom, the text of an out-of-copyright book was published on accounts across ten different ISPs (pdf file). The group then contacted each ISP pretending to be the copyright holders and demanded the content be removed.

Seven of the ten complied immediately.

In the USA, the situation is different: while an ISP is obliged to immediately pull content that receives a complaint, they must then contact the content owner about the decision.

If the owner is willing to stand by their content or comments, then it can be put online again. Any subsequent legal battle will only be between the content owner and the complainant – the ISP is immune from prosecution.

Whatever the outcome of the case between MCD and boards.ie, it is sure to set some precedent.

Regardless of that, McIntyre feels that more can be done to make sure the law is not used as a weapon to silence people who have done nothing wrong.

‘‘Hopefully the case will highlight the need for greater protection for online publishers and the greater need to encourage free speech online,” he said. 

I had originally written a longer piece on this topic which had to be cut down for space reasons; click below to read this “extended” version.

Irish law is inadequate in its protection of those involved in online media according to TJ McIntyre, barrister and chairman of lobby group Digital Rights Ireland (DRI). “Under eCommerce legislation ISP’s (Internet Service Providers) are offered some protection… but that doesn’t cover the likes of bulletin boards or blogs for example” says McIntyre.

The upcoming case between popular Irish discussion site boards.ie and MCD, whose solicitors served legal papers to the websites owners earlier this month, has brought attention to the way the law in Ireland applies to online media, specifically in regard to defamation and anonymity.

While many believe that hiding your name or other personal information will protect you, this is not the case; “Anonymity online is an illusion… it only takes a day in the High Court to get someone’s identity”; says McIntyre. In one incident in March of this year Michael Keith Smith, a member of the political party UKIP won a defamation case in England after claims were made against him in a Yahoo! chat-room. Tracy Williams had anonymously made the accusations was exposed when Mr. Keith Smith obtained a court order requiring the site operator to disclose her identity. Ryanair is also currently trying to identify pilots who criticised the company online through a High Court action.

Who is liable to be sued is also different than many may assume. While a company publishing in a traditional medium such as print or radio has full control over its published content a website owner may not. For instance an online forum where anyone can register and publish their opinions or a blog where readers can leave comments on the site allow people not directly involved in the site to publish content on it.

Under current legislation ISP’s, that technically publish a website, are given protection as long as it is clear that they were not aware of any potential wrongdoing however it is possible for the owner of a site to be held liable for comments they didn’t make but were viewable on their site nonetheless.

“The law is a great disincentive to doing business online; people won’t set up websites if they think they will be held accountable for what other people say on their site”; says McIntyre. “It’s not financially feasible for small companies to risk going to court like that; even if you win you will be greatly out of pocket as a result of it.”

While the MCD/boards.ie case is set to be the first time an Irish website has been taken to court it is not the first time that legal action has been threatened online. In many cases people may make comments innocently only to find they are considered defamatory by others.

Bernard Goldbach, a computing and multimedia lecturer in Tipperary Institute received a cease and desist letter in 2001 for comments he made on his blog. “I made a technical observation about something that in passing could have been seen as damaging to the person in question…I received a solicitor’s letter demanding the removal of specific comments”.

Goldbach removed the comments in question after speaking to the individual with the problem; “I thought about it and I could see how they might be seen as damaging. It’s worth thinking about what you have to gain from having it published and is it a big deal if you take it out? In this case it wasn’t so I pulled it”.

Goldbach also points out that comments you made and then deleted may still be online and you may still be held accountable for them; “In the blogging world you can revise things on the fly and remove content although once something is published online it’s hard to take back completely… to give another example, you might send a text in which you slag someone, so you decide to go back and delete it on your phone but the problem is it has already made its way to the other phone and it’s out of your control”

Search engines like Google cache the content it finds meaning that pages that no longer exist in their original form are still viewable in online archives. “Something could be published online at 5 o’clock and retracted at 9 o’clock but by that stage it’s already gone where it’s needed, that’s scary” says Goldbach.

He advises those publishing online to be more careful if they want to avoid any negative attention; “there should be moments of pause before publishing, even though the medium allows expedience”. TJ McIntyre believes that the ability to alter online content quickly should be considered in a legal situation, despite the fact that the change may not completely remove the original comments; “Irish law should take into account the speed at which an apology or correction can be made online that isn’t available elsewhere”.

The internet does offer more covert avenues for people seeking to have content removed however. As eCommerce legislation makes the hosting company liable if they are aware of any wrongdoing and they fail to act most such companies will pull content as soon as a claim is made against it.

Goldbach experienced this first hand when a comment made on his website was removed which he was only informed of afterwards; “There are other ways of getting things done behind the scenes besides solicitors letters; I had something censored without even knowing about it… companies can go straight to the hosting company who will comply without question in most cases, it’s like they cut your legs off without you even noticing.”

McIntyre feels that the willingness to pull content without any investigation is a major problem and is one that has no legal recourse for the content owner; “The situation is ripe for abuse… it’s a form of privatised and cheap censorship that’s quicker than going to court”.

In an experiment by Dutch lobby group Bits of Freedom (pdf file) the text of an out-of-copyright book was published on accounts across 10 different ISP’s, the group then contacted each ISP pretending to be the copyright holders and demanded the content was removed, 7 of the 10 complied immediately. “To be fair to the ISP’s they don’t have the money or resources to look into this, they just pull it” says McIntyre.

On the contrary to this the 1998 Digital Millennium Copyright Act in the USA forces the ISP to remove content immediately once a complaint is made, however they can then contact the site owner and if they are willing to stand by the content it can be republished online; at this stage the ISP is immune from prosecution under any subsequent lawsuit between the alleged copyright holders and the individual who put it online.

While the case between MCD and boards.ie is sure to set a precedent in Irish law online regardless of its outcome it is not the first time that the law has been used amongst the Irish internet community. McIntyre feels that more can be done to make sure the law is not used as a weapon to silence people who have done nothing wrong; “Hopefully the case will highlight the need for greater protection for publishers online and the greater need to encourage free speech online”

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>