Current legislation in Ireland says that website operators are liable for all content that is posted on their site, as they are considered to be the "publisher" of the site. The Digital Rights Ireland website, which contains a useful, easy-to-understand guide to libel laws in Ireland, puts it this way: "If you run a site which accepts submissions from authors, by accepting a submission and posting it, you have assumed the position of editor or publisher, and have therefore assumed liability for that posting."
Terms and conditions
So what can firms do to ensure they do not inadvertently publish defamatory content on their site, leaving themselves open to the legal ramifications of that situation? Robert McDonagh, solicitor with Mason Hayes+Curran, suggests three key tips for firms who have a discussion forum on their site or are planning to launch one in the future:
- Draft terms and conditions governing use of the site.
- Engage in monitoring of the forum.
- React quickly to any complaints about content.
To begin with, website owners should have site terms and conditions to control the use of the site, clearly indicating what type of content may be posted and what is unacceptable. McDonagh advises firms to get an expert to draft the terms and conditions, and to make sure they specifically focus on issues such as online blogs and online bulletin boards.
Michele Neylon, managing director of hosting and co-location firm Blacknight Solutions, is also a proponent of establishing clear conditions of website usage. "If you lay down clear guidelines and rules about what is and isn't acceptable, then you can avoid more severe issues further down the line," he says.
Everything in moderation?
In addition, if firms are facilitating the publication of third-party content on their sites, they would be well advised to scrutinise the subject matter that's being published. This will work to reduce the possibility that libellous content is published on the site, but it is vital, according to McDonagh, that monitoring be done on a regular basis to maintain consistency.
Digital Rights Ireland suggests that if firms cannot regularly monitor their blog or any other third-party content, "it may be best not have a comments facility at all." However, the organisation did say that this decision would depend on how controversial the subject matter of a firm's discussion board or blog is.
While moderating content can certainly help to avoid potential complaints, many internet users equate any level of moderation with censorship, according to Neylon, who says that "self-moderation should be the ideal goal."
Kevin O'Farrell, CEO of web firm ClicShare, explains that service providers and "publishers" must often "walk a fine line between taking too strong an action, removing anything that may be in the least bit unsafe... or taking too little action in the interests of free speech and leaving themselves legally exposed."
A combination of clearly defined terms and conditions and reasonable monitoring by a dedicated staff member could be the solution, according to McDonagh.
Fast action
If, for some reason, unacceptable content does make its way onto your website, there are two common defences. One defence is that the firm was not aware of the offending material. However, this would be hard to prove if regular monitoring was taking place, according to McDonagh.
The other defence is to take immediate action to rectify the situation. In this instance, McDonagh says, website owners generally remove the offending material as it is the simplest course of action. "If you have been notified that there is some defamatory content on your site, we would encourage firms to act in a reasonable manner and take the content down," he says.
Although new defamation legislation is reportedly pending before Cabinet, it is not yet clear when it will come into play, or whether it will change existing laws. O'Farrell believes that the new defamation act mirrors the existing principles "and should lead to greater clarity. However, it's the details of the law and how it is interpreted and applied which is of importance to website owners. We will have to wait and see."
This may all seem a bit daunting to firms who are considering implementing a blog or discussion forum on their site, but McDonagh assures companies that it shouldn't be. "Companies shouldn't be put off by the legal issues surrounding third-party content," he advises. "If they put the proper procedures in place from the beginning and use common sense, then they should be okay."
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