Defamation and internet publication in the Irish Supreme Court

In Coleman v MGN Limited [2012] IESC 20 (15 March 2012) (here and here), Denham J held:

10. The claim is now one of internet publication based on the jurisprudence in the linked cases of eDate Advertising GmbH v. X (C 509/09) and Martinez v. Société MGN Limited (C 161/10) referred to as Martinez. It was submitted that the Daily Mirror is on line every day. Counsel admitted that there was no evidence of such publication or of a person accessing such a site. His submission related to an additional site, and not to UKPressOnline which is an archival site, and which formed the substantial subject of the additional affidavit. Counsel submitted that the Daily Mirror being on line it is presumed that there would be hits on the site. Thus, the case hinges on the issue of publication on the internet. …

12. The case is now one where it is the plaintiff’s case that the defamation was published on the internet. Specifically he referred to the Daily Mirror on line. There was also reference to UKPressOnline, which is an archival website, to which institutions, such as academics, have access if they subscribe, but there is no general access other than to a thumbnail miniature of part of the article and photograph. It was agreed by counsel that the plaintiff could not be recognised on such a miniature, which could not be legibly enlarged. Further, as the plaintiff’s name was not mentioned in the articles in question he could not be identified by a search on that basis. Thus, the case for the plaintiff is now based on a publication of the Daily Mirror on line in 2003. …

14. … there is a need for evidence of publication to establish the tort of defamation. There is no evidence before the Court that the Daily Mirror was published on line in 2003. There is no evidence that the daily edition of the Daily Mirror was on the world wide web in 2003 … [and] there is no evidence of any hits on any such site in this jurisdiction. These are fatal flaws in the plaintiff’s case.

The case is noted here by TJ McIntyre here, where he draws attention to the similar earlier decision in USA Rugby v Calhoun, also noted here. Clare Tsimpourla on Cibus {per} Mentis comments:

And to think Mr Coleman would have won the case had he hired an internet specialist to track down a server, any server, with the snapshot of the said issues on mirror.co.uk. Our footpints are all monitored and stored in databases worldwide, from our first click to our last glimpse. He just needed someone who knew how to take it a step further from Google …

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