Making social networks remediate defamation enabled by their platforms: McKeogh v Facebook

A recent Irish case illustrates the difficulties an innocent person who is defamed on social media can face in trying to get the material removed, particularly where the Internet intermediaries who may have the ability to help refuse to cooperate. In McKeogh v Facebook Ireland Limited et al, Record No. 2012/254P, High Court Ireland, May 16 2013, the Irish High Court came up with a novel solution – require the Internet intermediaries, in this case Google and Facebook, to order their experts to meet with the defamed person’s expert to come up with a solution that can be incorporated into a mandatory injunction.

The case involved an unfortunate young student who was grossly defamed when certain persons wrongly identified him as the man seen on a video posted on YouTube exiting a taxi in Dublin without paying the fare. The taxi driver posted the video clip on YouTube and had asked if anyone could identify the young man in question. One person named the plaintiff as the culprit, and identified him also as being a student at Dublin City University.

Thereafter, in the words of the trial judge, “a miscellany of the most vile, crude, obscene and generally obnoxious comments about him appeared on both YouTube and on Facebook”. The statements went viral.

All manner of nasty and seemingly idle minds got to work on the plaintiff, and as seems to happen with apparent impunity nowadays on social media sites, said whatever thing first came into their vacant, idle and meddlesome heads, by posting statements and comments about the plaintiff, so vile and abusive that I ought not to repeat them here. It must be borne in mind that most of these people do not know the plaintiff and have never met him. Nevertheless they felt free to name and brand him as a criminal.

The plaintiff brought an application for mandatory injunctive relief that all material defamatory of the plaintiff arising from the posting of the video clip be taken down permanently from Google and Facebook sites on a worldwide basis. It applied to the video in question and to all comments, tags, threads and other means by which the material remained accessible and viewable.

One might have thought that Google and Facebook would have done something to help once it became incontrovertibly beyond doubt that the accusations were inaccurate and egregiously defamatory, especially since the postings went viral enabled by use of their networks. The task may not have been an easy one, or even possible, but the social networks refused all help, even after the judge asked Google and Facebook to have their experts try and come up with a solution.

That is no easy task to achieve, but in the absence of cooperation from the Google defendants and Facebook, it would seem to be an almost impossible task for the amateur. The plaintiff has sought assistance from those parties but has been met with resistance. I can understand why they might not wish to open a floodgate whereby much time and personnel might be required if they were to enter into direct contact with persons who might wish to have nasty stuff taken down, and would wish to rely on the self-delete mechanisms which they feel are adequate for the purpose. But in this particular case, and given the particularly obvious innocence of this plaintiff, it has been a surprise to me that those defendants have not assisted the plaintiff more willingly. Perhaps I was naive to expect that a request from the Court that the plaintiffs expert might meet with one or more experts within the defendant’s organisations who must have many such expert technicians in Dublin in order to agree what could be done and what could not be done to assist the plaintiff, would be taken up. It seemed a sensible and practical suggestion in order to avoid a prolongation of this litigation which should in my view never have been necessary. But my suggestion was met with outright refusal. I should add that the plaintiff’s experts have given evidence that in their view the defendants could do things to assist the plaintiff over and above what has been done to date. That evidence has not been contradicted other than on a hearsay basis by lawyers’ affidavits. I would have thought a meeting between willing experts would have assisted in narrowing the differences of opinion between the defendants and the plaintiffs experts. I do not understand what prejudice those defendants would suffer by trying to assist the plaintiff who is after all a customer of their services. But it was not to be. It might have avoided what turned out to be a marathon application for interlocutory relief, extending over I think ten or more hearing days. Every issue was hotly contested, involving a proliferation of affidavits, and a veritable mountain of paper.

Google and Facebook vigorously fought the application. This also perplexed the judge who questioned their refusal to help.

The application was fought over many days, interrupted by at least one vacation period. The hearings generated a great amount of emotional heat and stress in the courtroom. Why that should have been I do not know for a case such as this where I would have thought the obvious defamation of the plaintiff was plain for all to see, and all he seeks is assistance in having the material permanently removed from Google websites and Facebook. If there was ever a case where an application for a mandatory injunction should not be necessary it is this case…

Being an application for interlocutory injunctive relief, the Court had to be satisfied that the plaintiff had raised a fair issue or issues to be tried. The social networks claimed they weren’t liable as publishers of the defamatory materials. They also claimed they were entitled to safe harbors under the European Union e-Commerce Directive which had been transposed into Irish law.

The Court found that the plaintiff had raised a fair question as to whether the defendants could be liable as publishers of the materials on their websites. The court did not explore the issue. However, recent Commonwealth cases have held that internet service providers may be liable for defamation if they fail to take down or disable access to defamatory content once they receive notice that they are hosting such content. See,Google liability for defamation on Blogger.com: Tamiz v Google, Search engines liability for defamation – Trkulja v Google.

The Court also found that the plaintiff had raised a fair question as to whether Google and Facebook came within a safe harbor. The plaintiff argued that the protections are not blanket or absolute protection, and are available only if certain conditions are fulfilled. The defence is available where the ISP is a mere conduit, a cache or a host of third party information, and even then only if as soon as it becomes aware of the illegal or infringing activity it acts expeditiously to remove or disable access. The Court didn’t explore this issue either in any detail. However, Recitals 42 and 44 of the European Union Ecommerce Directive confirms the intention of the Directive to shelter only services of a “mere technical, automatic and passive nature”. See, Google France SARL et al. v. Louis Vuitton Malletier SA et al., Joined Cases C-236/08 to C-238/08, at paras. 112-120; L’Oreal v. eBay, Case C-324/09, at paras. 111-17.

The Court then turned to the question of whether damages would be an adequate remedy for the plaintiff. The Court concluded it would not. Google and Facebook may not have been responsible in the first instance for the publication of the defamatory material. However, their platforms enabled the publication of the defamatory content. As such they ought to render assistance. The plaintiff could not take down the materials himself while the defendants likely had the capability to help. Further, money damages could not remedy the damages the plaintiff would suffer if the materials remained online.

There is no doubt that the offending material was published on various sites owned and controlled by the defendants and that it was seriously defamatory of the plaintiff. It is of course true that it was not these defendants who defamed the plaintiff. Rather it was the individual posters of that material. But that publication is at least enabled by the availability of the defendants’ sites. The defendants have asserted that the plaintiff was in a position to remove the offending material himself by availing of the takedown mechanisms to which I have already referred. Indeed as I have mentioned already, the plaintiff was aware of those mechanisms as he did in fact attempt to effect a takedown as already described. But despite his best efforts he has not been successful in achieving a permanent takedown of the material. The material has been repeated and commented upon by others. The task of trying to effect a total takedown of this material has been a very difficult task for the plaintiff. The plaintiff sought the assistance of these defendants but with limited success. As I have stated already, he has been met with some resistance in his efforts to gain cooperation from these defendants as I have mentioned already.

In my view a payment of damages cannot be an adequate remedy as long as there is any possibility that all offending material can be removed from the internet, whether accessible from this jurisdiction or worldwide. The plaintiff’s expert says that this should be possible. No evidence to the contrary has been adduced by the defendants. Given the technical expertise which must be available within these defendant entities, I would have thought that they must be in a position to assist the plaintiff. They may find it inconvenient to so cooperate. They may even legitimately fear that if they assist this plaintiff in this way, they may be required to assist many other persons who for one reason or another want such assistance, and may not want to open that floodgate. While I can understand such concerns on their part from a commercial point of view, it still remains the case that people have availed of technology which is the property of these defendants in order to seriously defame the plaintiff. They ought in my view render more assistance to him that they appear to be willing to render thus far. In such circumstances, the plaintiff cannot be reasonably expected to accept damages as an adequate remedy.

The Court also considered that the balance of convenience lay in favour of granting a mandatory injunction. Such orders must be clear as to what is expected of the defendants in order to fully comply with the order. The Court did not have enough information to make such an order. To enable it to make one it decided to be “imaginative in trying to fashion an appropriate remedy for the plaintiff”. The Court took the unusual step of ordering the parties’ experts to meet to try and come up with technical means to help the plaintiff.

Before deciding what form any further injunction should take, I propose ordering that the defendants to nominate an expert or experts to meet with the plaintiff’s expert. This is something which I believe these defendants ought to have agreed to when it was suggested by the Court at a much earlier stage of these proceedings. The plaintiff had at an early stage asked that a point of contact be made available with whom contact could be made, but this resulted only in an offer that the plaintiff could make contact with a solicitor. That was unhelpful in my view.

The reason why I consider that such a meeting of experts should take place is that the plaintiff’s expert has given evidence and has expressed his opinion that it is technically possible to achieve what the plaintiff seeks, whereas it appears, though only based on hearsay affidavit evidence from lawyers, that the defendants disagree. A meeting may persuade the defendants ‘ experts that what the plaintiffs expert says is possible is true. On the other hand, it may be that such a meeting will result in the plaintiff s expert in being persuaded that despite his earlier belief, he is in fact incorrect.

This Court, as I have said already, ought not make a mandatory injunction order unless the order makes clear what steps are to be taken in order to comply with the order made. Without such precision, the defendants will not know what they have to do to comply. The proposed meeting should, if feasible, produce a report for the Court upon which each expert can agree. In that event, the report would set forth what steps are to be taken to achieve the total takedown which the plaintiff requires, or at least what steps are possible to achieve that objective as far as reasonably possible.

On the other hand, if the meeting of experts fails to achieve a reasonable measure of agreement, then the defendants’ expert(s) should produce their report to the plaintiff s expert, who, in tum having considered same, could produce a report on that report…

In relation to the meeting of experts I would propose that within 14 days from today, each party will nominate an expert or experts to meet. The meeting should take place no later than 14 days after such nominations are made. In the event that a joint agreed report is possible, such report should be completed within 14 days from the meeting. In the event that no agreed report is forthcoming, the defendants’ report should be provided to the plaintiff no later than 14 days from the meeting, and the plaintiff’s expert’s report provided to the defendants within the same period. The matter would be listed for mention before me at some date thereafter which is convenient to all concerned, so that the Court can consider the position which emerges.

It is not known yet what the experts have come up with. It is worth watching to see what, if any, mandatory injunctive relief is finally ordered or whether the case settles.

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