Is the Writing on the Wall for Online Service Providers? Liability for Hosting Defamatory User-Generated Content under European and Irish Law

• Date: 01 January 2015
• Author: Hugh J. McCarthy

16

Is The Writing on the Wall for Online

Service Providers?

Liability For Hosting Defamatory User–Generated

Content Under European and Irish Law

HUGH J. MCARTHY

Introduction

The rst generation of the internet predominantly featured static read-

only content. This has long since evolved into “an ether through which

interactivity happens”.1 The term “Web 2.0” was coined in the late 1990s

to reect this reality, but has itself been overtaken in recent years by the

arrival of the third generation of the internet. This so-called “3G” era is

dened by near-ubiquitous internet access combined with heightened levels

of online interaction. Together these factors have brought about a seismic

shift in how information is now generated. In today’s age of user-generated

digital media, it is internet users themselves, and not media outlets, who

generate an increasing volume of material. Known as user-generated

content (“UGC”), this material comprises tweets, blogs, comments, chat-

room messages and a range of other content. What was once the mass

media has now become the media of the masses.

It is against this backdrop that the modern law of defamation operates.

Traditional principles “forged in the era of the public meeting, the pamphlet

and the book” now face challenge in the digital era,2 and many conceptual

questions are still to be resolved. A central element in the tort of defamation

is the publication of a defamatory statement. In the 3G era a particularly

vexed question is whether online service providers, those who operate

websites and provide internet access, can be held liable as publishers of

UGC that they did not create but which is hosted by them. Although the

law has evolved to craft multiple overlapping defences at both common

law and in statute, the precise boundaries of these defences and the scope of

their operation remains uncertain. Courts all across the common law world,

The author is grateful to his father Justin McCarthy for his invaluable contribution to

the editing process and to Ray Ryan B.L. for reviewing an earlier draft of this paper.

1 Darcy DiNucci, “Fragmented Future” (1999) Print 53(4)

2 “Can Defamation Law Keep Pace with technological change?” The Irish Times 21

November 2013 Available at http://www.johnmaherbl.ie/can-defamation-law-keep-

pace-with-technological-change/[Accessed 15 February 2015]

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Is The Writing on the Wall for Online Service Providers? 17

including those in Hong Kong,3 Canada,4 New Zealand5 and most recently

the United States,6 have grappled with the question of defamation liability

for hosting UGC. While the issues may be universal this paper focuses on

European law and its application in Ireland.

At European Union level the existing legal framework governing online

service provider liability is enshrined in the Electronic Commerce Directive

2000.7 The fundamental bargain underlying the ECD is that service

providers who remain passive as to the content of material hosted, obtain

what is termed a “safe-harbour” granting them immunity for hosting illicit

content, including defamatory UGC.8 The ECD regime prescribes rules

whereby service providers obtain immunity for hosting defamatory content

provided they meet certain conditions. To dene the boundaries of this

safe-harbour, within which service providers are insulated from liability,

this paper will examine the relevant European and domestic member state

provisions and review their interpretation by the courts. Insights will also

be gleaned from the legislative models implemented in the UK and the

US respectively, both of which offer a basis for comparison. All the time

service providers must navigate a course between defamation liability on

the one hand, and maximization of advertising revenue on the other. In a

world where their business models increasingly rely on UGC and digital

trafc to generate revenue, the scope of what service providers are capable

of doing without incurring liability has far-reaching legal and commercial

implications.

Part I of this paper sets out the architecture of the EU legal framework

governing service provider immunity from liability. In focusing on the

hosting defence enshrined in Article 14 of the ECD, this analysis draws

on the leading European authorities, Google France v Louis Vuitton9 and

L’Oréal v Ebay,10 to demonstrate a trend toward increased responsibility

on service providers for hosting illicit materials at EU level. In Part II,

the Irish and English regulations transposing Article 14 of the ECD into

national law are examined. The case-law interpreting these provisions is

reviewed and several principles are distilled which particularly illustrate

3 Oriental Press Group Ltd v Fevaworks Solutions Ltd [2013] HKEC 1025

4 Crooks v Newton [2011] SCC 47

5 Murray v Wishart [2014] NZCA 461 (19 September 2014)

6 Jones v Dirty World Entertainment Recordings LLC, No. 13–5946, 2014 WL

2694184, at *10–16 (6th Cir. June 16, 2014) [hereinafter Jones v Dirty World]

7 European Council Directive 2000/31/EC of 8 June 2000 on certain legal aspects

of information society services, in particular Electronic commerce, in the Internal

Market (Directive on ECD commerce) OJ (2004) L178/1 [hereinafter the “ECD”]

8 Rob Frieden, “Internet Packet Snifng and Its Impact on the Network Neutrality

Debate and The Balance of Power Between Intellectual Property Creators and

Consumers” (2008) 18 Fordham Intellectual Property Media & Entertainment Law

Journal 633

9 Joined Cases C–236/08 to C–238/08 Google France v Louis Vuitton OJ C134/2

[hereinafter Google France]

10 Case C–324/09 L’Oréal SA and Others v eBay International AG and Others [2011]

OJ C269, [hereinafter L’Oreal v Ebay]

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18  . c

the approach of the English courts towards the hosting defence under

national law. In the absence of meaningful judicial guidance from the Irish

courts, the English case law represents persuasive authority of the likely

approach to be adopted in this jurisdiction. Part III deals with the recent

English Court of Appeal judgment in Tamiz v Google, which draws on the

well-versed Byrne v Deane principle of “publication by acquiescence” to

impute liability on service providers in the digital age. Under this principle,

a service provider is exposed to secondary liability in circumstances where

it is aware of the publication of defamatory content but fails to remove

it. In Part IV the paper looks in detail at the landmark European Court

of Human Rights judgment in Del AS v Estonia11 where an elevated

standard of responsibility was imposed on an online news portal for

its role in the publication of defamatory UGC. The decision is critically

analysed in light of its apparent incompatibility with the jurisprudence

of the Court of Justice of the European Union (CJEU). Part V presents

alternative legislative models implemented in the UK and US respectively,

which emphasise freedom of expression and thereby offer service providers

enhanced protection from defamation liability. Ultimately, it is shown that

whilst the European courts are leveraging increased pressure on service

providers to combat defamation, due to incongruous judicial approaches

the law is unsettled and the precise boundaries of the statutory defences

remain uncertain, particularly in Ireland. In conclusion, it is submitted that

the prevailing policy approach in other common law jurisdictions is to

recalibrate the law by focusing on the imposition of liability on the actual

authors of defamatory statements, in place of online service providers. It is

argued that Ireland should follow suit.

Part I. European Union Framework

The European Union legal framework governing online intermediary

liability is primarily contained in the ECD.12 The general theme of the ECD

is to provide service providers with immunity from liability for unlawful

activities taking place on their networks so long as they remain passive

and neutral in the transmission and hosting of unlawful material. Recent

European jurisprudence, which is binding on Irish courts, indicates that

service providers who engage more actively with the content they host

and transmit will incur a greater level of responsibility with consequent

liability.13 Although much of the ECD case-law to date concerns the

enforcement of intellectual property (“IP”) rights, the general principles set

down apply equally to the hosts of defamatory content.

11 Del AS v Estonia App no 64569/09 (ECtHR, 10 October 2013) [hereinafter Del]

12 The ECD, supra note 7

13 Google France supra note 9; L’Oreal v Ebay, supra note 10

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