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

Date01 January 2015
AuthorHugh J. McCarthy
Is The Writing on the Wall for Online
Service Providers?
Liability For Hosting Defamatory User–Generated
Content Under European and Irish Law
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
pace-with-technological-change/[Accessed 15 February 2015]
02[07] McCarthy.indd 16 03/06/2015 15:12
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
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]
02[07] McCarthy.indd 17 03/06/2015 15:12
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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