I attended the presentation by Digital Rights Ireland at TechCamp Ireland recently and while I was impressed by the presenters and what they had to say, I honestly felt a lot of it was scaremongering to get support.
In a one-to-one after the presentation, TJ McIntyre told me that simply by publishing an article, you can lose your house. “It doesn’t matter if the article is defamatory or not – if someone decides to take a case against you, the cost of solicitors and barristers will run into the tens of thousands. Very few bloggers can afford that.” And if you have no house or tangible assets? I asked. Then, the courts can make an arrangement to have the amount deducted from your salary until it is paid off, TJ informed me. They are very flexible like that. He’s just trying to scare-up a few more clients, I thought!
Then, a friend contacted me – we’ll call him John for the sake of this post – but he’s really a reasonably well known blogger in Ireland. John told me he had received a cease and desist letter from a Dublin law firm, regarding some posts he had made earlier this year about a company we’ll call XYZ co. XYZ co. seemingly treated their employees badly, a few court cases were taken, reports were published in the media and questions were even asked in the Dáil (the Irish parliament). In all this, John simply published what was happening (often re-printing articles from the mainstream media) on his blog.
The cease and desist letter was followed by a summons to the Four Courts.
Now John was really worried. On legal advice he pulled any posts pertaining to XYZ co. from his blog. When I asked him on IM what happens next he said:
17:15:00 John: then i send the lawyers a nice letter saying well i am not really interested in entering into legal proceedings regarding this matter, and the “offending” content has been removed. then sit tight and see what their next move is
17:16:46 trftry: And if anyone on the blogosphere notices the posts’ removal and asks where they have gone?
17:17:27 John: well becuase otherwise i will be in the dock, and to be honest without any support from people, I can not afford to be a test case.
17:17:54 trftry: I understand that
17:18:14 trftry: But how will you react to people’s questions when they arise?
17:18:23 John: i will tell them the truth
17:20:11 trftry: On your blog?
17:20:20 John: if asked, yes.
17:22:01 John: there is no other option for me tom. without the free assistance of lawyers, and some method of insurance for myself in teh event of a negative outcome, i would be pretty mad to continue. i would have expected the law to be a little more progressive in the matter, but from what i am being told, it doesn’t seem to be
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17:23:19 John: i would be a very just person, but without support, my hands are tied.
17:24:06 John: of course people will be interested in why the posts are gone. and i will tell them. i owe it to myself and others to give reasons why, but at the end of the day, since the law is stacked _against_ me, i will not win.
17:24:29 John: of course it is wrong, and unjust, and i hate it, but what other options are there for me?
17:24:49 trftry: I have no idea John
Before John took down the posts, I went through them. I felt John had been very careful in his posts to make sure he didn’t defame anyone and yet he had to remove them on threat of legal proceedings and he’s still not confident that that will be the end of it.
The law on defamation in Ireland is stacked against bloggers (against all publishers really but bloggers for the most part don’t have the means at their disposal that mainstream publications would have). I suspect Ireland is not alone in this.
This raises a couple of issues;
- Bloggers are blissfully publishing articles completely unaware of the potential legal consequences and financial implications and
- There are no guidelines for bloggers in this regard – on two fronts i) what constitutes a defamatory post and more importantly ii) what to do in the event you are accused of publishing one.
What can be done? In the immediate term, I think bloggers will have to rigourously self-censor or face the very real risk being brought before the courts (with all the expenses that implies). In the longer term, we need to agitate for a reality check in our laws on libel and defamation. The best way to do this, I imagine, is through supporting the work of Digital Rights Ireland – hopefully, they will have some suggestions for us on this matter in the very near future.
UPDATE:
Digital Rights Ireland have a very useful libel pamphlet on their site with advice for bloggers and web hosts on defamation in blog posts and blog post comments (something we often forget about).
Scary stuff. I have heard snippets the last few months about supposed changes to libel law. Do you know if this is a reality or just talk and if it will have any real impact?
Newspapers and other media are suffering because of the current set up as well so they are pushing for changes.
Yep, scary stuff. I’m going to say it’s still scare mongering to a point though. The average blogger’s posts have no potential to be misinterpreted. If your’e commenting on a legal case or re-posting confidential information (I’m not saying that was the case here … just giving an example) then maybe you could be taken to court about it (whether rightly or wrongly).
Bloggers do have to beware of what they write. The prevailing view seems to be that blogging is just like having a conversation in a pub, only on-line, but that’s simply not the case – it’s open for anyone to read / join and it’s recorded. That’s where the legal problems begin.
A simple list with examples of do’s and don’ts would be nice though, just to be sure!
comments here
I have received three take-down letters in four years of blogging. One came with an impressive but fabricated solicitor’s letter. I have also received a Four Courts summons which I rang around and discovered did not match up against any of the clerks’ dockets. Libel can be a dangerous business. Court appearances can be expensive. But good blogging will put the writer into the crosshairs. There’s plenty of background support for articulate bloggers in Ireland. Cross-communication like this posting is helpful in that regard.
Frightening! I’ve been guilty of blissful ignorance of these issues in the past but am definitely going to start paying more attention now.
Could we possibly make a pledge using Pledgebank.com to buy group insurance if a certain number chip in a certain amount?
“The average blogger’s posts have no potential to be misinterpreted.”
Believe me, if someone wants to shut you up, they’ll misinterpret anything. Anyway, material doesn’t have to be misinterpreted to ground a libel case, it only has to potentially damage a person’s reputation. Whether the material is true or not doesn’t come up until you get to court, by which time you’re several thousand euros worse off in legal costs.
“If your’e commenting on a legal case or re-posting confidential information (I’m not saying that was the case here … just giving an example) then maybe you could be taken to court about it (whether rightly or wrongly). ”
These are concerns too, but are quite seperate from libel. Commenting on a legal case isn’t all that dangerous, unless you suggest that someone was lying in eviedence, prejudice the outcome, or the like. As for reposting confidential information, you almost certainly will get sued, and unless your a whistle-blower type, quite desrvedly.
“Could we possibly make a pledge using Pledgebank.com to buy group insurance if a certain number chip in a certain amount? ”
no. if the case is the one i think it was, then the blogger was way out of line in what he said and what he allowed to be set. i am all too happy to support and defend the innocent, but the guilty need a good slap around the ear.
that is one of the biggest problems with this post. it’s screaming “freedom of speech! freedom of speech!” without saying what was said. there’s enough clues for those with memories, but nothing specific. freedom of speech *must* have limits. otherwise it’s meaningless. stupid blog postings are as damaging to the wish for a relaxation of libel laws as the sort of reporting that accompanied the death of liam lawlor. if we *really* want the libel laws to be relaxed, then we’re *all* going to have to adhere to higher standards.
Well I don’t know enough about the history of this particular case to agree or disagree but what I should have specified was group insurance for protection against what *others* post on your blog (comments) or forum. Sure, you can delete them but maybe not in time to prevent damage.
People feel that they can say anything anonymously on the internet, which is true in some ways, but to do so on your own blog where your details are in plain view for all to see? Mix that in with living in a such a litigation-happy nation and its pretty much obvious what can and will happen.
james – protection against comments? *you* are responsible for the comments on your blog. in almost all the case law on this and related issues that i know, moderating them swiftly is generally considered good enough. failing to moderate them – espcially when you know or ought to have known the offence they could cause – is the problem.
IP, I am not sure you are thinking of the right blogger – the one I am referring largely re-printed articles already in the press and quoted results of research. In any case, “the guilty need a good slap…” the point of my mail was that to get a chance to prove your innocence, you have to spend tens of thousands in legal fees in the high court – you are guilty until and unless you can afford to prove yourself innocent.
As it says in DRI’s libel pamphlet:
so it’s not [name removed] then?
is an interesting coincidence that all the [name removed] posts have been pulled from the [name removed] blog? must get in touch with [name removed] and find out the reason for that one …
IP – I really think you are wide of the mark here and missing the point altogether. While you are running around trying to figure out who is involved you’re missing the fact that as publishers on the web we are all involved.
The post isn’t about an individual case at all, it’s about the law as it applies to what you might post on your blog about another individual or company.
It was clear to me from the original post that the issue being discussed is the potential threat to me if I decide to post about others, particularly if I am critical of them.
It was also clear to me that the person involved in the example that brought this to Tom’s attention did not want to be identified.
Why can’t you respect that?
Given the subject matter being discussed here, I felt it prudent to edit a couple of comments on this site which specifically named companies or linked to discussions where companies were named.
This is not something I do lightly but I really don’t want to be incurring the kind of legal costs a high court case would entail.
If you do wish to take part in this discussion, please keep the discussion in the abstract and don’t refer to companies by name.
Thanks,
Tom.
frank – actually frank, you’re missing the point. using a case in which the blogger was clearly in the wrong is a rather stupid thing to do. in fact, the actual blog posts involved in this case demonstrate clearly the need for protection of those who are defamed, and not greater protection of those doing the defaming. we do not and should not have the right to use blogs to defame people or make unfounded allegations against others. do you really think there should be a law that would allow me to make false claims against you?
tom – i’ll take that to mean that we are talking about the same incident.
Digital Rights Ireland Libel Pamphlet:
and
and
These are the issues being discussed. The case in point only brought these issues to Tom’s attention.
Tom read the posts in question, so did you. Tom feels they were not defamatory, you feel they were. That highlights the problem with bringing a case like this before a jury.
Correction to my previous comment –
“Tom read the posts in question, so did you.”
This was an assumption on my part and should have read:
“Tom read the posts in question, and you believe you read the same posts.”
I don’t actually remember reading anything about the events you mentioned previously and so am not in any position to guess who is involved.
IP,
I am not going to say whether your guess was correct or not – this time I am doing this to protect you.
You said:
This statement potentially opens you up to a libel case being taken against you by the blogger in question (and me too as the host of the libellous comment).
Are you now starting to see the point I am trying to make?
I know what you mean tom, afraid to say I’ve been there before.
Take a look at http://www.peteconnolly.co.uk/blog/archives/000110.html
The whole sordid business was short and nasty, but he backd down in the end, TF. If he hadn’t, I don’t know what I would have done.