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 DÃ¡il (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
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.
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).