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Defamation
Accountability for the Anonymous By Grace Given, SS Law and German, Niamh Robertson, SS Law and German, & Emily Barry, SS Law and German Introduction In late 2019, then Minister for Justice Charlie Flanagan pledged to present proposals for the reform of Ireland’s defamation laws by spring 2020. At present, the main legislation regulating the cybersphere is the Defamation Act 2009. While a 10-year period between Act and reform is a comparatively short period of time, in the context of the dynamic nature of the internet, reform is drastically needed. Online publishing via sites such as Facebook, Instagram, and LinkedIn has never been easier, faster, or more accessible and, as such, the possibility of defamation has never been more likely. Speaking at a symposium on the topic, Minister Flanagan described Ireland’s defamation laws as essentially seeking to balance three different rights - the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice. The intricacies of this balancing act are particularly difficult when it comes to anonymous online defamation. Defamation Act 2009 The tort of defamation as provided for by Section 6 of the 2009 Act, performs an extremely important function in vindicating an individual’s right to their good name and reputation by holding people accountable for false statements that “tend to injure a person’s reputation in the eyes of reasonable members of society.” However, it must also balance this right with the individual’s integral right to freedom of expression. The Act, in Section 6(2), provides for defamation “by any means,” which includes online defamation. This extends to comments and posts on social media platforms, such as Instagram and YouTube, as well as to group messages on WhatsApp or communications by email. The unique nature of defamatory comments made online is that they can instantly become viral, spreading like wildfire and causing severe reputational damage. Online Anonymity Anonymous posting online poses a particular challenge for defamation law. Although it was possible to publish opinions or comments anonymously or under a pseudonym before the advent of the internet, such statements were different in that they were usually published in a magazine or newspaper. Therefore, while the author remained anonymous, it was possible for a claimant to seek damages by turning to the traditional publisher. In other words, victims of defamation had a means by which to vindicate their right to a good name. However, with the rise of online media, and particularly the use of online platforms and intermediaries who often play a passive, rather than active role in the dissemination of users’ opinions, such an option is no longer available for claimants. The issue of anonymous posts online is further complicated by the difficulty of identifying such users. It is rare that, during the publication of online communications, any form of real identity verification will be required; online communications generally rely on the self-identification of users. While this makes it easier for those who wish to post anonymously, it also provides a considerable challenge for those who wish to identify a tortfeasor. Although such a task is possible, it is generally both costly and time consuming. If a user is determined to remain anonymous, it is possible for them to do so through the use of anonymous proxy servers. Using an IP address to establish the identity of a user is only helpful to a certain extent; IP addresses are linked to the source, but where a source (e.g., a computer or a smartphone) is used by numerous people, then it is impossible to know by which person the material was posted. Another obstacle to overcome is whether the Internet Service Provider (ISP) will be willing to share such information, as ISPs are generally under a contractual
