CHATROOM – DEFAMATION?
In March 2009, the Irish High Court ruled for the first time on the meaning of the E-Commerce Directive. The Directive addresses the liability of “Intermediate Service Providers” (ISPs) for information posted on the internet by means of the service provided by ISPs. In other words, the directive sets out the legal framework for entities which provide a forum for people to broadcast their messages on the internet.
In the proceedings before the High Court two well known bookies, Ellen Martin and Seamus Mulvaney, sued The Sporting Exchange Limited (“Betfair”) for allegedly defamatory comments written by registered Betfair clients on the Betfair chatroom. Betfair sought to involve the authors of the comments by joining them to the proceedings.
It was decided that the applicability of the Directive (and the Regulations which transposed the Directive into Irish law) should be decided upon prior to the case coming before a jury. Betfair firstly argued that it was not the publisher of the alleged libels and therefore could not be successfully sued for defamation. In the alternative, Betfair argued that the exemption from liability provided for in the Directive was applicable.
The Directive states that where an “Information Society Service” stores information supplied by recipients of that service then the service provider will not be liable for the information stored at the request of the recipient of the service. However, this exception can only be availed of on condition that:
- the service provider does not have actual knowledge of the illegal information and, where damages are claimed, does not know of any facts or circumstances from which the illegal information is apparent.
or
- the service provider, upon becoming so aware, acts quickly to remove or disable access to the information.
The question for the Court effectively boiled down to whether Betfair’s chatroom was an “Information Society Service”. The Court was satisfied that the provision of a chatroom service is an “information Society Service” and so Betfair enjoyed the benefit of the exemption from liability provided by the Directive.
The decision benefits ISPs generally and the providers of chatrooms specifically. It does not give the ISP “carte blanche” when it comes to potentially defamatory comments posted on its service but it does lend clarity to their responsibilities and will be met with a sigh of relief by chatroom providers across the country.
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