It all began innocently enough: just before Christmas, Sunday Times journalist John Burns wrote a piece lamenting the shortcomings of blogging in Ireland. Leading bloggers naturally begged to differ. A month later, the spat was picked up by Trevor Butterworth writing on Forbes.com, who noted that “it’s hard to think of a free country more suited to blogging than Ireland”. By the same token, it’s at least as hard to think of a country more given to litigation; and the point was illustrated by a story retailed almost en passant in Butterworth’s piece:

As one journalist told me, Ireland’s media is currently abuzz over a “confidential” legal settlement against a blogger, who allegedly had to pay almost $140,000 in damages for a libelous post, seen by few, swiftly purged from the site, and readily apologized for.

This was intriguing. By the end of the week, John Burns in the Sunday Times had the full story:

A blogger has agreed a €100,000 settlement after libelling Niall Ó Donnchú, a senior civil servant, and his girlfriend Laura Barnes. It is the first time in Ireland that defamatory material on a blog has resulted in a pay-out. … In December 1, 2006, a blogger who styles himself as Ardmayle posted a comment about the couple … Following a legal complaint, he took down the blog and in February 2007 he posted an apology which had been supplied by Ó Donnchú’s and Barnes’ lawyer … However, the pair subsequently issued separate proceedings. It is understood that the €100,000 settlement was agreed shortly before the case was due before the High Court.

Indeed, there had been quite a detailed report at the time in the Sunday Independent; and in the last week, many blogs have pored over the story.

There’s nothing new in online defamation; the same basic legal principles apply online as they do offline; the medium may change, but the legal consequences of the message remain the same. But the story does raise some interesting legal issues. Mark Coughlan on TheStory.ie pointed out that, before the storm blew up this week, Ardmayle had been “little known, to say the least”, and he quite rightly queried the actual damage the blog had done to the plaintiff’s reputations. UCD law lecturer TJ McIntyre picked up that point:

The level of damages in defamation reflects the extent of publication – i.e. the extent to which the defamatory material was actually read. This is not (despite the best efforts of plaintiffs’ lawyers) the same as the extent to which it might have been read. Consequently (leaving aside other factors such as the gravity of the allegations) damages should be greatly reduced where the audience can be shown to be negligible. Potential readability worldwide notwithstanding.

For him, therefore, the case highlights the importance of keeping good server logs to counter the all-too-easy assumption that “availability online automatically equals a mass audience”.

Ireland’s libel laws have recently been overhauled by the Defamation Act, 2009, which came into force on 1 January this year. Section 31(4) provides that the court in a defamation action shall have regard to a range of factors in making an award of general damages, including:

(b) the means of publication of the defamatory statement including the enduring nature of those means,
(c) the extent to which the defamatory statement was circulated, … [and]
(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement …

These considerations tend to reinforce TJ’s point about the importance of keeping good server logs. It is hard to tell from the reports whether any of the Act’s defences might have availed the blogger, though the new defence of fair and reasonable publication on a matter of public interest, whilst hobbled, may have done.

The Act is a welcome, but incomplete, reform – incomplete not least because it takes little account of the increasing trend towards online communication. In particular, it does not attempt to achieve inter-operability between its restatement of the traditional defence of innocent publication and the defence provided to intermediary service providers by the implementation of the E-Commerce Directive.

Finally, there are questions of the compatibility of this kind of outcome with the free speech provisions of the Irish Constitution and of the European Convention on Human Rights. There are, in particular, emerging arguments that various European Courts have clearly moved to grant traditional press freedoms not only to traditional media but also to online actors such as bloggers engaged in “the creation of forums for public debate”. This might not have protected Ardmayle’s obscure blog, but if – contrary to the views John Burns expressed in the article at this beginning of this post – the Blog O’Sphere continues to develop as a vibrant forums for public debate, then future bloggers in Ardmayle’s shoes may be able to rely on the Constitution and the Convention. Until then, we will all have to tread softly.

Reposted from Index on Censorship.

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I suppose if I spent ages thinking about it, I could find a spurious thread linking three stories that caught my eye over the last few days, but in truth there is none, except that they update matters which I have already discussed on this blog. (Oh, all right then, they’re all about different aspects of freedom of expression: the first shows that copyright should not prevent academic discussion; the second shows that hecklers should not have a veto; and the third is about broadcasting regulation).

First, I had noted the proclivity of the estate of James Joyce to be vigorous in defence of its copyrights; but it lost a recent case and now has agreed to pay quite substantial costs as a consequence:

Joyce estate settles copyright dispute with US academic

The James Joyce Estate has agreed to pay $240,000 (€164,000) in legal costs incurred by an American academic following a long-running copyright dispute between the two sides. The settlement brings to an end a legal saga that pre-dates the publication in 2003 of a controversial biography of Joyce’s daughter, Lucia, written by Stanford University academic Carol Shloss. …

More: ABA Journal | Chronicle | Law.com | San Francisco Chronicle | Slashdot | Stanford CIS (who represented Shloss) esp here | Stanford University News (a long and informative article).

Second, I have long been of the view that hecklers should not be allowed to veto unpopular views, and none come more unpopular that holocaust-denier David Irving. Now comes news that NUI Galway’s Lit & Deb society have withdrawn their controversial invitation to Irving for security reasons:

David Irving address in NUIG cancelled due to ‘security concerns’

The proposed visit of the controversial historian David Irving to the NUI, Galway Literary & Debating Society has been cancelled. In a statement the Lit & Deb said the cancellation was “due to security concerns and restrictions imposed by the university authorities”. …

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Following on from my comments about email disclaimers, via TJ and OUT-LAW.com here and here, I learn of the decision of the Court of Appeal in England and Wales in Patchett v Swimming Pool & Allied Trades Association Ltd [2009] EWCA Civ 717 (15 July 2009) on the efficacy of website disclaimers. The plaintiffs asserted that they had suffered financial loss by relying on a mistaken statement on the defendants’ website, and the defendants countered that that clause on the site which urged visitors to the site to make further enquiries effectively disclaimed liability. In the Court of Appeal, Lord Clarke MR for the majority (Scott Baker LJ concurring, Smith LJ dissenting) held, at pargarph 39:

… I do not think that it can fairly be held that [the defendants] assumed a legal responsibility to the [plaintiffs] for the accuracy of the statements in the website without the further enquiry which the website itself urged.

And, in the next paragraph, he concluded:

When application was being made for permission to appeal it was suggested that special considerations apply to representations on websites. I do not think that the mere fact that the representations were contained on a website supports the conclusion that a duty of care is owed. As ever, all depends on the circumstances. Some websites are interactive and it may be possible, applying the principles outlined above, to conclude in particular circumstances that a duty is owed. However, I agree with the judge that that is not the case here.

So, website disclaimers can be effective in principle, but – as ever with the law – whether they are in any given situation will turn on the facts of the case. I supposed I’d better see to a disclaimer for this site then.

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The European Legal Network, a professional network of legal experts facilitated by the Freedom Task Force which promotes free software licensing as part of the work of the Free Software Foundation Europe, has just announced the launch of the International Free and Open Source Software Law Review. It is a peer reviewed biannual journal for high-level analysis and debate about Free and Open Source Software legal issues, and it will receive financial and administrative support from the NLNet Foundation, which supports organizations and people that contribute to an open information society. Edited by Andrew Katz and Amanda Brock, its focus includes copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes. Unsurprisingly, it operates a strong Open Access Policy, providing immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge.

Given recent developments relating to Creative Commons licences for Ireland, I was particularly taken by two pieces in the first issue discussing Jacobsen v Katzer and Kamind Associates 535 F.3d 1373 (Fed.Cir.2008) (pdf), in which the Court of Appeals for the Federal Circuit granted a preliminary injunction to enforce the terms of the OSI’s open source Artistic Licence (see JOLT | Lessig | OSI | Stanford CIS; Brian F Fitzgerald and Rami Olwan “The legality of free and open source software licences: the case of Jacobsen v. Katzer” in Mark Perry and Brian F Fitzgerald (eds) Knowledge Policy for the 21st Century (Irwin Law, Canada, forthcoming) (abstract).

Long may the International Free and Open Source Software Law Review prosper!

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If you liked my posts about the gatekeeper responsibilities of search engines, then you’ll have loved last week’s furore over Amazon’s decision to disable search and sales ranking for “adult” material. I followed the controversy via John Naughton’s Memex 1.1 blog, here, here and here (pointing to his column in last weekend’s Observer). It has long been a source of worry that private actors such as Google and Amazon should retain so much personal data as to raise significant privacy concerns. More recently, the range of worry has broadened, with the realisation that such companies can not only manipulate their databases to target advertising at their users, but they can also manipulate them to prevent the users having access to data. Lawyers notoriously understand very little about internet reserach, and so have great difficulty in addressing the kinds of legal and regulatory issues that such manipulation reveal. I have recently blogged about articles by Oren Bracha and Frank Pasquale and by Emily B Laidlaw, arguing that actors such as Amazon and Google should come under common law duties analagous to those that govern public utilities.

More generally, over on Concurring Opinions, a rolling symposium, starting here, is considering Danielle Citron’s seminal article “Cyber Civil Rights” 89 Boston University Law Review 61 (2009). In its details, it’s a million miles from Bracha, Pasquale, and Laidlaw; but in its strategy, it reinforces their way forward. Read the rest of this entry »

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It never rains but it pours. Having recently blogged about about Emily Laidlaw’s article on search engine accountability, I’ve just come across the similarly important article by Oren Bracha and Frank Pasquale on Federal Search Commission? Access, Fairness, and Accountability in the Law of Search 93 Cornell Law Review 1149 (2008) (pdf). They robustly argue that general-purpose search engines are better characterized not as media outlets (contrast Finklestein) but as common carriers (quite a common argument in the online context), that they should therefore come under common law duties that govern public utilities (appropriately adapted), and that – by analogy with the Federal Communications Commission (FCC) – a new regulatory framework (the Federal Search Commission (FSC) of the title) should be established. They conclude:

Search engines, in whatever form they might assume, will continue to be a major part of our informational environment in the foreseeable future. The normative concerns associated with their unique position of power are here to stay. A properly designed regulatory approach may do much to ameliorate these concerns. Courts should not end the debate over the contours of such an approach before it begins.

Hear, hear! However, if online search requires an FSC in the US, then it will require equivalents in other jurisdictions as well. Moreover, given the global reach of the internet, there may be need for some kind of international congruence of such regulation to make it workable. In this respect, the better analogy may not be with the FCC, but – as Daithí is always eager to point out – with two earlier international organisations, the International Telecommunications Union (ITU) established in 1865 and the Universal Postal Union (UPU) established in 1874, both of which are now specialised agencies of the United Nations (UN). Read the rest of this entry »

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I have had occasion to comment on this blog that the Roman poet Juvenal asked Quis custodiet ipsos custodes? (who will watch the watchers?). Emily B Laidlaw, in her fascinating article, Private Power, Public Interest: An Examination of Search Engine Accountability, raises the parallel question of who will keep the keepers? In the vast new information age bequeathed to us by the internet and the world wide web, gatekeepers are those who enable – and control – our access to that information. At present, they are all private entities, and even if they wish to do no evil, there is no reason why they should actually do some good, let alone act in the public interest. Laidlaw’s analysis therefore focuses on the important issue, who will keep the (gate)keepers; here’s the abstract:

As information becomes a critical commodity in modern society, the issue is raised whether the entities that manage access to information, that are tools for public discourse and democracy, should be accountable to the public. The Internet has transformed how we communicate, and search engines have emerged as managers of information, organizing and categorizing content in a coherent, accessible manner thereby shaping the Internet user’s experience. This article examines whether search engines should have public interest obligations. In order to answer this question, this article first examines comparative public interest regulatory structures, and the growing importance of the Internet to public discourse. Then examined is how the algorithmic designs and manual manipulation of rankings by search engines affects the public interest without a sufficient accountability structure. Finally, the values necessary to a public interest framework are suggested.

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From John Naughton’s column in today’s Observer

By reading this, you agree to stop adding useless disclaimers

… consider the curious legalese that is increasingly appended at the foot of emails dispatched from corporate email servers. … A friend sends you an email saying “How about lunch?” and it comes with this implicit threat that if you so much as breathe a word of it to any living being the massed litigators of Messrs Sue, Grabbit and Runne will descend upon you. The practice is now so widespread that most of us have become inured to it. …

The funny thing is that the practice is, at best, legally dubious. “The value of disclaimers is limited,” writes Simon Halberstam (of Sprecher Grier Halberstam) in an article on weblaw.co.uk, “since the courts normally attach more weight to the substantive content of the communication and the circumstances in which it is made than to any disclaimer. Having said that, disclaimers may possibly be helpful if an issue ends up in court in various respects … and, since disclaimers cost (almost) nothing, it is worthwhile to use them.”

But don’t forget that, in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, [1963] UKHL 4 (28 May 1963), the case that established liability in principle for negligent misrepresentation, a disclaimer was effective!

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