Karyn Harty, the lady lawyer who sent out press releases earlier this month, has a guest article in today’s Irish Times. It seems to be a little more carefully worded in relation to the difference between an ISP and a host, but some of it still puzzles me.
Unlike their US counterparts, Irish ISPs do not enjoy any immunity under Irish law at present and generally take a constructive approach if pressed, although they will often seek to deny liability initially.
Where material that has been posted is plainly defamatory it is usually possible either to persuade them to close down the website or remove the offending content.
The Defamation Bill is expected to leave scope for companies like ISPs to be held liable for defamation, but there needs to be a serious debate about the extent to which we should make it harder for someone defamed on the internet to remove offensive material or close down websites.
For most people affected by internet libel, the priority is action rather than compensation. The stick that forces ISPs to act as the law currently stands is the potential for litigation. If that is diluted, people defamed on the internet may be left much worse off.
I have to ask again, in what way can an Irish ISP be forced to remove content from a foreign host? Perhaps what she is getting at is that the ISP could be forced to disclose the IP address of a customer that has been checked against the logs of a host and found that they correlate. In this way the identity of a person could be discovered.
She notes earlier:
Of course, in the huge, complex world of the web, tracing the writer of a defamatory comment is a lot more difficult than finding an article in a newspaper.
However, it is possible to trace offending bloggers with a bit of perseverance and lawyers often find that a formal complaint to the website host or internet service provider (ISP) and to the administrator of the website will lead to the removal of the offending material, without the need for litigation.
She seems to suggest that this is obviouslya good thing. Good, perhaps, for a person who feels wronged, but not good for freedom of speech. It simply means that the material was contested and the host folded at the first sign of a legal battle. It does not necessarily mean the material was libelous. I guess it’s a good thing for lawyers too, those letters do cost money.
As Dick noted, “McCann FitzGerald are flagging themselves as the go-to guys on internet libel. If someone does feel they’ve been libelled by a blogger, here’s a firm advertising itself as knowing what they’re talking about.”