Reform of the law of defamation – the defence of innocent publication (Muwema v Facebook part 2)
The decision of Binchy J in Muwema v Facebook Ireland Ltd IEHC 519 (23 August 2016) demonstrates that, on the question of the liability of internet intermediaries for defamatory posts on their platforms, an important part of the answer is provided by application of the defence of innocent publication provided in section 27 of the Defamation Act 2009 (also here).
Binchy J granted a Ugandan lawyer a Norwich Pharmacal order requiring Facebook to identify the holder of a pseudonymous account which, the lawyer alleged, contained posts that were defamatory of him. However, Binchy J declined to grant injunctions requiring Facebook either to remove allegedly defamatory posts from the account or to prevent the material in them from being re-posted, on the grounds that Facebook could rely on the defence of innocent publication in section 27 of the 2009 Act and on the hosting immunity conferred by Regulation 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 (SI No 68 of 2003) (transposing Article 14 of the e-Commerce Directive Directive 2000/31/EC into Irish law).
He came to that conclusion, especially as regards section 27, with some unease, and he doubted very much if that consequence was intended by the Oireachtas (). If his doubts are well founded, then the Oireachtas has it its power to amend the section to come into line with its intentions. In my previous post, I considered the issues in Binchy J’s judgment other than the availability of those defences. In this post, I will first consider the defence of innocent publication in section 27; I will then consider the hosting immunity in Regulation 18; and I will finally consider whether it is necessary to reform either or both of those provisions.
2. Innocent publication Section 33(1) of the 2009 Act (also here) provides that the court may award an injunction if (a) the statement is defamatory, and (b) the defendant has no defence to the action that is reasonably likely to succeed. Binchy J accepted that the statements in the Facebook posts were prima facie defamatory of the plaintiff for the purposes of paragraph (a). However, he held that that the defendant could rely on two defences for the purposes of paragraph (b), and he therefore declined to award the injunctions sought by the plaintiff. The first such defence is the defence of innocent publication in section 27 of the 2009 Act (also here). And it is his treatment of this defence that it is at the heart of this case. Section 27, subsection (1), provides:
It shall be a defence (to be known as the “defence of innocent publication”) to a defamation action for the defendant to prove that—
(a) he or she was not the author, editor or publisher of the statement to which the action relates,
(b) he or she took reasonable care in relation to its publication, and
(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.
These three paragraphs state cumulative conditions. All three must be satisfied if the defence is to be made out. Subsection (2) goes on to provide that a person shall not, for the purposes of the first of these conditions, be considered to be “the author, editor or publisher” of a statement if
(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.
As a matter of interpretation, if the defendant could bring itself within that definition, that would fulfil the first of the three cumulative conditions for the application of the defence of innocent publication, but the other two conditions would still require to be satisfied. It was not difficult for Binchy J to conclude that subsection 2(c) did indeed apply to the defendant (), and he continued ():
On the face of it therefore the defendant has available to it a statutory defence to the proceedings issued against it.
As I read section 27, this simply does not follow. All that fulfilling the terms of section 27(2)(c) did was to establish one of the three conditions for the defence of innocent publication stated in section 27(1), that is to say the condition stated in section 27(1)(a). The conditions stated in section 27(1)(b) and 27(1)(c) still needed to be fulfilled. The plaintiff did seek to put those other conditions in issue, if rather obliquely, by submitting that the defendant could not rely on section 27(1) because it had been made aware by the plaintiff of the defamatory material and had declined to take it down from its platform. However, Binchy J rejected this submission ():
… the criteria for eligibility for the defence are not drawn in this way and at this remove at least it seems likely the defendant is entitled to avail of the defence provided for under section 27(2)(c) of the Act of 2009 and this conclusion by itself has the effect of precluding the plaintiff from obtaining an order under section 33 of the Act of 2009.
It bears repeating that section 27(2)(c) does not provide for a stand-alone defence; it merely provides a means by which the first of the three conditions provided in section 27(1) for establishing the defence of innocent publication may be established. It is therefore exceedingly difficult to justify Binchy J’s treatment of section 27(2)(c) as by itself establishing a defence.
Moreover, the plaintiff’s submission that he had put the defendant on notice and that it had not taken any action could easily have gone to the question of whether they had taken reasonable case, for the purposes of the second condition as stated in section 27(1)(b). And it could at least as easily have gone to the question of what the defendant had “reason to believe” for the purposes of the third condition as stated in section 27(1)(c). It is not easy, therefore, to justify Binchy J’s outright rejection of this submission.
Finally, here, the third condition as stated in section 27(1)(c), is not without difficulty. It turns on the publication of “a statement that would give rise to a cause of action in defamation”. Does the “would” here mean that a cause of action has to be fully established, or can it include a situation where proceedings have simply been commenced, or is it something in between? The usual definition of “cause of action” sheds no light on the issue. A cause of action is “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person” (Letang v Cooper  1 QB 232, 242-243 (Diplock LJ); Roberts v Gill  1 AC 240,  UKSC 22 (19 May 2010)  (Lord Collins); Murphy v O’Toole IEHC 486 (17 October 2014) - (Baker J); see also PR v KC IEHC 126 (11 March 2014)  (Baker J), but note Clarke v O’Gorman IESC 72 (30 July 2014)), and the same question arises: does the existence of the relevant factual situation have to be fully established, or can it include a situation where proceedings have simply been commenced, or is it something in between?
None of this featured in Binchy J’s rather cursory analysis of section 27, which seems simply to have assumed and asserted that the section applied and that the defence was made out. It seems to me that he read section 27(2)(c) as a standalone defence, whereas it simply provides a means of fulfilling the terms of 27(1)(a). Moreover, since the three paragraphs of 27(1) are cumulative, it still needed to be established that the terms of paragraphs (b) and (c) had been fulfilled. This is not necessarily straightforward, though it is more than possible, so Binchy J’s conclusion is still tenable – but because he glossed over the other elements of section 27(1), I think it at least likely that another judgment on section 27 could go the other way (contrast, for example, Petroceltic International plc v Aut O’Mattic A8C Ireland Ltd (High Court, unreported, 20 August 2015, amended 8 September 2015; noted here (pdf) and here (pdf)) (see Irish Independent | Irish Times) where Baker J granted an injunction requiring the defendant to remove allegedly defamatory posts from a blog hosted on its site – however, since there is only the Order and no written judgment , it is unclear the extent to which section 27 featured in the case, if at all).
In the end, I agree with Binchy J that if section 27 does provide Facebook with a defence, then “this conclusion by itself has the effect of precluding the plaintiff from obtaining an order under section 33 of the Act of 2009” (), though it is not clear to me that he had completely established that the terms of section 27 were fully made out.
3. Hosting immunity
Binchy J also held that the defendant would have the benefit of the hosting immunity provided by Regulation 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 (SI No 68 of 2003) (transposing Article 14 of the e-Commerce Directive Directive 2000/31/EC into Irish law), which provides:
(1) An intermediary service provider who provides a relevant service consisting of the storage of information provided by a recipient of the service shall not be liable for the information stored at the request of that recipient if —
(a) the intermediary service provider does not have actual knowledge of the unlawful activity concerned and, as regards claims for damages, is not aware of facts or circumstances from which that unlawful activity is apparent, or
(b) the intermediary service provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
(2) Paragraph (1) shall not apply where the recipient of the service is acting under the authority or the control of the intermediary service provider referred to in that paragraph.
(3) This Regulation shall not affect the power of any court to make an order against an intermediary service provider requiring the provider not to infringe, or to cease to infringe, any legal rights.
This provides for a notice-and-takedown procedure similar to the one the plaintiff sought to interpret into section 27. Subsection (1)(a) provides an immunity from damages for an intermediary service provider (ISP) which hosts defamatory data, for so long as the ISP has no notice of the defamation, and subsection 1(b) provides that the immunity is lost if the ISP has notice of the defamation but does not take it down. Subsection (3) clarifies that this immunity does not prevent a court from granting an injunction against the ISP, if one were otherwise available.
The leading case on Regulation 18 as a matter of Irish law is Mulvaney v The Sporting Exchange Ltd trading as Betfair  1 IR 85,  IEHC 133 (18 March 2009). Clarke J held, as a preliminary matter, that the defendant counted as an ISP for the purposes of the Regulation, and that the conditions concerning knowledge and expeditious action set out in paragraphs (a) and (b) of Regulation 18(1) would be determined at trial. It is even clearer that Facebook here is an ISP for the purposes of Regulation 18(1)(a).
As regards the level of knowledge or awareness required by paragraph (c) to lose the immunity, the defendant submitted that it did “not know” whether or not the impugned blogposts were indeed defamatory and unlawful, and that “it is therefore entitled to the benefit of the protection afforded by Regulation 18” (). This is an extremely wide submission. The Regulation speaks of the defendant either having “actual knowledge” of the defamation, or being “aware of facts or circumstances” from which the defamation “is apparent”. It is clear that the defendants were arguing that they did not have actual knowledge of the defamation of the plaintiff, but it seems that they were also arguing that they were not aware of facts or circumstances from which the defamation was apparent. In other words, they were arguing that the mere assertion by the plaintiff that the posts were defamatory was insufficient to provide them with facts or circumstances from which the defamation was apparent. In Case C-324/09L’Oréal v Ebay  ECR I-06011, the Court of Justice of the European Union held (-, emphasis added):
… if the rules set out in Article 14(1)(a) of Directive 2000/31 are not to be rendered redundant, they must be interpreted as covering every situation in which the provider concerned becomes aware, in one way or another, of such facts or circumstances.
The situations thus covered include, in particular, that in which the operator of an online marketplace uncovers, as the result of an investigation undertaken on its own initiative, an illegal activity or illegal information, as well as a situation in which the operator is notified of the existence of such an activity or such information. In the second case, although such a notification admittedly cannot automatically preclude the exemption from liability provided for in Article 14 of Directive 2000/31, given that notifications of allegedly illegal activities or information may turn out to be insufficiently precise or inadequately substantiated, the fact remains that such notification represents, as a general rule, a factor of which the national court must take account when determining, in the light of the information so transmitted to the operator, whether the latter was actually aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality.
The emphasised part of this passage provides some support for the defendant’s submissions in Muwema, though the remainder undercuts it somewhat. In the event, Binchy J did not expressly deal with this issue; but, under the heading “Regulation 18(3) of the e-Commerce Regulations”, he did hold that the defendant had “a reasonable likelihood of success in defending the proceedings on this ground also” (). However, as I read Regulation 18, this simply does not follow. Subsection (1) was irrelevant to the claim in Muwema, because that subsection deals with the circumstances in which the ISP could have an immunity from claims in damages, and the plaintiff’s claim agains the ISP at this stage was not for damages at all but only for an injunction. Indeed, at a later point in his judgment, Binchy J acknowledged this difference ().
However that may be, the main discussion of Regulation 18 centred on subsection (3), which provides that an immunity from damages under subsection (1) does not prevent an award of an injunction against the ISP, if it is otherwise available. The plaintiff sought to make of subsection (3), and in effect to convert it into a right to an injunction in defamation cases, but Binchy J quite rightly would have none of it. In Sony v UPC IEHC 317 (27 March 2015), aff’d IECA 231 (28 July 2016), Cregan J granted, and the Court of Appeal upheld, an injunction against an ISP effectively pursuant to Article 8(3) of Directive 2001/29/EC (which Binchy J described as “the Copyright Directive”). Article 8(3) was implemented in section 40(5A) of the Copyright and Related Rights Act 2000, as inserted by the European Union (Copyright and Related Rights) Regulations 2012 (SI No 59 of 2012). The plaintiff argued that “that Regulation 18(3) of the Regulations is analogous to Article 8(3) of the Copyright Directive and that the decision of Cregan J makes it clear that the Court has the power to grant the kind of relief sought in these proceedings” (). However, Binchy J emphatically rejected this argument ():
This is clearly not so however, because Article 8(3) of the Copyright Directive mandates Members States to ensure injunctive relief is available in cases of infringement of copyright; Regulation 18(3) as already observed (and indeed the corresponding article in the [e-Commerce] Directive, Article 14(3)) merely confirms the continuation of powers otherwise vested in the Court.
Hence, whilst Article 8(3) of the Copyright Directive requires an injunctive remedy, Regulation 18(3) of the e-Commerce Regulations merely permits one, it does not require it. Instead, the question is whether the powers otherwise vested in the Court require an injunction. In the defamation context, those powers are provided by section 33 of the 2009 Act. And we have already seen that the availability of the defence of innocent publication in section 27 meant that no injunction could issue pursuant to section 33. However, whilst Regulation 18(3) of the e-Commerce Regulations did not require an injunction, it cannot be said that the remainder of that Regulation provided the defendant with a defence (notwithstanding Binchy J’s comments to the contrary ).
Binchy J came to the conclusion that the plaintiff was not entitled to an injunction “with some unease” (). As he read Regulation 18 and section 27, in conjunction with section 33, “a person who has been defamed by an internet posting may be left without any remedy at all, unless the author is identified and amenable to the jurisdiction of the Court” (ibid). And he said (ibid):
If my concerns are well founded however, it is a matter of grave concern. Persons whose reputations are seriously damaged by anonymous and untrue internet postings may be left without any legal remedy against the site hosting the publication, even in the most flagrant of cases. … If this is indeed a consequence of section 27 of the Act of 2009, I doubt very much if it is a consequence intended by the Oireachtas.
For the reasons I have set out above, I do not think that Binchy J’s concerns are well-founded. In particular, his analysis of section 27 was incomplete, and his judgment is unlikely to be the last word on it. Moreover, it may be the spur to the Oireachtas to revisit that section. In 2003, the the Legal Advisory Group on Defamation recommended a much more extensive defence of innocent publication than was ultimately enacted in section 27 (see the Report of the Legal Advisory Group on Defamation (2003; pdf) pp26-29, 80-82)). In particular, head 29 of the draft Bill proposed by the Group sought to integrate defence of innocent publication and the operation of the e-Commerce Directive immunities and notice-and-takedown procedures in a way that would have provided a surer analytical route for Binchy J in the case before him. It is unclear to me why section 27 did not ultimately follow this pattern.
The extended provisions in head 29 were modelled, at least in part, on section 1 of the UK’s Defamation Act 1996. And that, in turn, has been supplemented by sections 5 and 13 of the Defamation Act 2013. Similar reforms are currently under discussion in Scotland (see the Scottish Law Reform Commission Discussion Paper on Defamation(March 2016) (pdf) [7.33-7.39]) and Northern Ireland. Other aspects of the Irish 2009 Act are in need of revision (see my previous posts here and here), and a review of its operation is past due. No doubt, if that review ever happens, then section 27 will be addressed, in the light not only of Binchy J’s comments in Muwema but also of reforms elsewhere.
Consider this issue
The process of reform may also reach the operation of the e-Commerce Directive immunities. Certainly, transformation of the generic notice-and-takedown regime in Article 14 (and thus in Regulation 18 of the Irish e-Commerce Regulations) into a more nuanced notice-and-action procedure, whilst long promised by the EU Commission, has not so far materialised. For so long as we have to wait for it, unnecessary uncertainty about the operation of the immunities in general, and about what is sufficient notice for the purposes of Article 14(1)(c) (and thus of Regulation 18(1)(c)) in particular, will persist.
In the conclusion of his judgment in Muwema v Facebook (), Binchy J ventured that
persons whose reputations are seriously damaged by anonymous and untrue internet postings may be left without any legal remedy against the site hosting the publication, even in the most flagrant of cases. … There must be a doubt however about whether an ISP, which disclaims any responsibility for or interest in the material complained about, is entitled to assert in defence of an application such as this, the right to freedom of expression of a party who has chosen to remain anonymous and remains at the time of the hearing of the application unidentified and beyond the jurisdiction of the Court, and who in any event does not have a right to publish defamatory statements.
This seems to me to be driven by three assumption, that a plaintiff should have an interlocutory remedy against an ISP, that its absence is inevitably a bad thing, and that any remedy against the defamer would necessarily be insufficient; but he does not explain why in principle any of these assumptions should be so. He granted the Norwich Pharmacal order to identify the holder of a pseudonymous account, and if a defamation action against anyone so identified is successful, then the court will be able to award a permanent injunction against Facebook pursuant to section 33 (as Facebook would no longer be able to rely on the defence of innocent publication in section 27). Moreover, even if the information disclosed pursuant to the Norwich Pharmacal does not in fact identify the holder of a pseudonymous account, the court can provide protective injunctive relief against persons unknown (Bloomsbury v News Group Newspapers  1 WLR 1633,  EWHC 1205 (Ch) (23 May 2003); Smith v Unknown Defendant EWHC 1775 (QB) (15 July 2016)), and it is sufficient to describe a defendant as a “Person Unknown Responsible for the Operation and Publication” of a particular website (Brett Wilson LLP v Person(s) Unknown  1 All ER 1006,  WLR(D) 173,  4 WLR 69,  EWHC 2628 (QB) (16 September 2015)). If such an order is made, then the court will again be able to award a permanent injunction against Facebook pursuant to section 33 (as Facebook would again not be able to rely on the defence of innocent publication in section 27). Effectively, Binchy J’s reading of section 27 delays a remedy against Facebook, but it doesn’t deny it. Hence, even if his reading of section 27 is right, none of the apocalyptic outcomes he predicts need actually materialise.
As I said in the conclusion of yesterday’s post, Binchy J’s judgment leaves too many questions open, and provides too many unclear answers. This is particularly so in what he had to say about the operation of section 27 of the 2009 Act and of Regulation 18 of the e-Commerce Regulations. In the analysis above, I read those provisions very differently, to say the least. I do not think that we have seen the last judicial discussion of section 27; and, if the Oireachtas were to reform it in the light of developments in neighbouring jurisdictions, so much the better.