26/09/2022

Social media and the potential for defamation in Ireland

With the increased use of social media, there has been an increase in defamation cases arising from allegedly defamatory posts being put up on social media platforms such as Facebook, Twitter, Snap and others.

What does the Defamation Act 2009 say?

Individuals may not realise that when they post on social media that it is considered a publication for the purposes of the Defamation Act 2009. If the statement seems to be one which would injure a person’s reputation in the eyes of reasonable members of society, the person publishing it could find themselves facing a Defamation action.

However, in the context of litigation, it is often the case that there is little point in suing many individuals for defamation. This is because they might not have the funds to pay damages or even satisfy the substantial costs that are associated with defamation claims. In this regard, the question which often arises is whether it is possible to name the social media platform in which the alleged defamatory publication was published as defendants instead.

Are the social media giants liable?

The EC (Directive 200/31/EC) Regulations 2003 (the E-Commerce Regulations) provide protection for Intermediary Service Providers (‘ISPs’) where they are only acting as a facility for people to access information and content through their internet platform. Intermediaries such as social media platforms are provided a Defence, known as a “Hosting Defence”, for the huge amount of information passing through their systems. They simply cannot be expected to be aware of any defamatory content within all this information. However, if they are put on notice of the Defamatory content and do not take the appropriate steps to remove the content, then this could be a bar to them later relying on this Defence.

Similarly, pursuant to Section 27 of the Defamation Act, 2009, the Defence of innocent publication is open to social media platforms. This is sometimes known as “The Bookseller’s Defence”. Section 27 of the Act gives innocent publishers a Defence if they took reasonable care with the Publication. However, in order to avail of this Defence, the Internet Service Provider or Social Medial platform must show that;

  • It was not the author, editor or publisher of the statement
  • It took reasonable steps in relation to the publication, and;
  • It did not know, and had no reason to believe, that what it did caused or contributed to the publication of a defamatory statement

In this regard, it would appear that if the social media platform has taken reasonable care in relation to publication, they will not be held liable. However, if such social media platform is put on direct notice of a defamatory statement and they do not take the requisite steps, it is the view of the writer that this will be grounds for naming the social media platform in a defamation action.

There are examples of social media platforms being sued for defamation

Cases involving social media defamation are on the increase. We have recently seen the tragic case of the parents of the missing teenager Nóra Quoirin bringing proceedings against an individual with Facebook named as a co-defendant. Although the details of the settlement remain confidential, the matter was settled, and an apology was read out by the lawyers acting for Facebook in Court.

In essence, both organisations and individuals should be very mindful of what they place on social media. You could be considered a publisher pursuant to the Defamation Acts and could find yourself facing defamation proceedings. Individuals should also be careful when sharing or reposting defamatory posts as that can also be seen as a new publication.

Employers and organisations should train their members and indeed anyone they could be deemed responsible for. For example, in 2016, a mother and son settled a defamation case against the HSE for €40,000 where the foster parents of a child placed in care by the HSE put defamatory material on social media regarding the birth mother. It was alleged in that case the HSE were negligent for not providing adequate training to the foster parents on the use of social media or in respect to the entitlement to privacy.

:: Damien Conroy (damien.conroy@aclsolicitors.ie), Partner, Augustus Cullen Law.  

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