Blurred lines in Publishing Law Creating a New `risk landscape`

By Lesley Caplin

27th September 2021

When I began practising media law 15 years ago, a typical day involved reviewing draft articles for newspapers, liaising with publishers to ensure books went on sale with minimal risk and litigating in the Irish courts for clients who found themselves at the wrong end of a claim. The internet featured minimally, if at all. Today, there are very few files on my (entirely virtual) desk that do not contain an online aspect. It has transformed the media, how we all do business and how people communicate.

But it also brings with it a new risk landscape, and many people are concerned that the general approach to that landscape is slowly but surely eroding freedom of expression.

The Internet has enabled new forms of content generation, as well as extended the reach of traditional publishers to much wider audiences, but it has also resulted in an exponential increase in the transmission of harmful speech and misinformation. The inevitable result? A cry for regulation by private, commercial and legal interests alike.

The difficulty for Internet users, from corporate entities publishing news stories to the individual social media poster and everyone in between, is that regulation is not consistent across the globe. Different jurisdictions deal with the legal issues arising from publication on the Internet against the backdrop of their own, often complex, legal regimes. In Ireland, our written Constitution guarantees the right of all citizens to freely express their convictions and opinions. That right is of course subject to restrictions, but in the balancing act required by any legal challenge to publication, it carries heavy weight.

In the U.S. the First Amendment, which protects freedom of expression and freedom of the press, arguably carries even greater weight. However, in jurisdictions such as Russia and China, serious restrictions on free speech, together with increasing encroachments into privacy through technology, can make disseminating online content difficult or impossible.

National courts, lawmakers and regulators grapple with these contradictions and challenges in different ways and with different goals in mind. The result is often disparity in the law and uncertainty for Internet users.

For example, Australia’s High Court has recently held that media who facilitate third-party comments on social media can be held legally responsible for those comments. The decision does not impose liability on the individual who posted the comments, or the social media platform provider, but on the media organisation that owns and runs the digital page.

The decision stems from a defamation claim brought by Dylan Voller, an Australian youth detainee, against defendant media companies over comments made by Facebook users on news stories posted to Facebook by those companies. Mr. Voller successfully argued that the media organisations which posted the original news stories were liable for third-party comments made in response, notwithstanding that the media organisations did not intend the material to be posted. The decision underscores the risks in facilitating the posting of comments by third-party users on web pages that an organisation controls. It seems that, in Australia at least, that act alone is enough to establish that the relevant organisation is a “publisher” for the purposes of defamation law.

Even the US - often held as the bastion of free speech - is now seeing that relatively clear line begin to blur, with moves to reform section 230, as well as the landmark 1964 Supreme Court decision in New York Times Company v. Sullivan

This does not represent the law in Ireland or in the rest of the European Union, and it is unlikely to do so in the foreseeable future due to the ‘notice and take down’ liability regime under the E-Commerce Directive, as reflected in the Defamation Act, 2009 and the E-Commerce Regulations. In Ireland, Facebook, and probably most traditional media organisations, are liable only if on notice of a complaint in relation to the third-party comments to which they did not appropriately respond.

The U.S. goes further, with section 230 of its Communications Decency Act providing that an “interactive computer service” cannot be treated as the publisher of third-party content. So Facebook would immediately be off the table if Mr. Voller’s issues had arisen in the U.S., and so potentially would the media organisations, given first amendment principles and their legal interpretation in the US. However, even the US - often held as the bastion of free speech - is now seeing that relatively clear line begin to blur, with moves to reform section 230, as well as the landmark 1964 Supreme Court decision in New York Times Company v. Sullivan, which shapes defamation law in the US to this day, coming under fire.

The result of all of this legal disparity is forum shopping, legal potholes for those disseminating content in any form and harmful speech slipping through the cracks. The current global health crisis has only served to magnify these issues - in 2020, disinformation and harmful speech spread across the Internet faster than Covid-19.

States’ legal responses to that wave of harmful content are only beginning to come under the microscope. How individual jurisdictions have fared in tackling such disinformation will become more apparent over the coming months, but we can reasonably predict that any significant shift in approach in the U.S. will impact our Department of Justice’s reform agenda for Ireland’s defamation laws, where heads of a new Defamation Bill are awaited.

Lesley is a media lawyer and Senior Associate with McCann Fitgerald law firm, specialising in media defence. She is an experienced litigator and has been involved in a number of key jury actions in recent years. Lesley advises media and corporate clients on a wide range of issues relating to publication and has particular expertise in digital media, and jurisdiction in respect of on-line content.