Around 6pm last Christmas Eve, as shops closed, friends piled into busy pubs for pints, and commuters departed the city for the suburbs and beyond leaving behind locked, unlit offices, one of Ireland’s best-known defamation lawyers, Paul Tweed, took to Twitter to fire a shot across the bow at UK television presenter Dr Christian Jessen.

“I am putting Dr Christian Jessen on notice in relation to a totally false allegation he has tweeted regarding DUP Leader and former NI First Minister, Arlene Foster. Legal action will also be taken against any persons who have retweeted this highly defamatory allegation,” the tweet said.

For the previous 24 hours or more, rumours had been swirling around the social media site about the private life of Foster (who is now back in the role of First Minister). It appears Jessen, host of Embarrassing Bodies, picked up on the talk and decided to tweet about it – in between posts about anti-vaxxers (people who oppose vaccinating children) and the Christmas joys of Bramble Gin “#lush”.

Jessen’s tweet about Foster was later removed.

Speaking to The Currency, Tweed said this very public warning to Jessen came about because he had no means of getting in touch with the TV presenter privately. Having been contacted by Foster on Christmas Eve, the lawyer said he took to Twitter to shut down the rumours, despite the risk of what is known as the Streisand effect. 

Named after entertainer Barbara Streisand’s unsuccessful efforts to suppress photos of her mansion going public in 2002, the Streisand effect is what happens when you try to censor or kill a story but end up spreading it further by drawing attention to it. Tweed said it was a difficult call whether to go on Twitter. “But if you don’t [do it], it spreads like cancer,” he added.

According to the defamation expert, the Foster matter is not resolved. Early in the week, Tweed told The Currency that the television personality had been put on notice of legal action, but that his side had not yet decided whether the proceedings should be lodged in the High Court in Belfast or Dublin. Belfast would seem to be the obvious choice given Foster and Jessen are both UK residents. 

But at that time Tweed also expected that Twitter would be listed as a defendant – not in respect of Jessen but in relation to several other accounts that could be sued for tweeting about Foster. 

However, by yesterday, the picture had changed. Tweed said Twitter had agreed to suspend the accounts in question, meaning the social media giant was now out of the frame. He confirmed proceedings against Jessen had been lodged in Northern Ireland.

Lawyer Paul Tweed: Photo: Paul Tweed/Twitter

Otherwise, Dublin would have been a contender. Why?

Following the data

Because like the other tech behemoths (with big social media platforms) Google and Facebook, Twitter’s European headquarters are in Dublin, a factor that has been used to determine jurisdiction in many other defamation or “reputation management” claims that have landed in the Irish courts from the four corners of the world – many brought by Tweed. It is a matter of following the data.

Some of these cases have no other links to Ireland. Just last week, proceedings were lodged in the High Court on behalf of Moldovan air cargo company Aerotranscargo against an aviation journalist based in Greece, and Twitter, over tweets about a flight to Libya. 

A potential allure for would-be litigants is that Ireland’s defamation regime is perceived as being plaintiff-friendly with high jury payouts. As far back as 2014, Jessica Biel and Justin Timberlake used the Irish courts to sue UK magazine Heat for defamation, despite the fact circulation numbers in Ireland were much lower than in Britain and Heat’s publisher is the German giant Bauer. 

This jurisdiction hop is often referred to as libel tourism. (Although businessman Denis O’Brien, a frequent flyer in the defamation courts, losing his claim against The Sunday Business Post last year is suspected to have cooled the jets of some onlookers, at least domestically.)

It is hardly coincidental that Ireland’s popularity among foreign libel litigants, like Biel and Timberlake, grew after 2013 when English defamation laws tightened up substantially. Jury trials have been scrapped and plaintiffs now have to show they have suffered serious harm, or are likely to suffer serious harm, as a result of the offending publication.

To date, not one defamation case against a social media tech defendant has gone before a High Court jury.

Add to the mix the rise of social media, where the limits of free speech go way beyond publishing norms – think back to Facebook CEO Mark Zuckerberg’s appearance before a US Senate committee last year where he said the social media site would allow politicians post any claims – even false ones – in their ads.

Then factor in that these same big tech multinationals have based their European operations in Ireland and conditions would appear ripe for defamation to become a substantial growth industry for Irish lawyers.

And to some extent it has. The most recent figures from the Courts Service show that the number of new defamation cases rose by nearly 50 per cent in the five year period between 2014 and 2018.

A growth industry?

Experienced legal practitioners in the field have speculated that social media may have contributed to the surge. Take for example the website of Lavelle Partners, the firm that acted in one of the most significant cases to date in this area of law, the 2016 action Muwema v Facebook, which will be discussed below. Lavelle’s site says: “According to the Court Service in Ireland, the number of defamation cases has risen sharply in recent years, and it is believed that social media may be a significant factor in this increase.  Whereas traditional media typically involves some checks and balances prior to publication, social media allows individuals to place unchecked comments with great ease, at any time. Unfortunately, such comments, if defamatory, can render that individual’s good reputation, which has taken years to earn, seriously damaged.”

Other firms’ websites make similar exploratory claims about the link between rising defamation stats and social media. None is vociferous. Because in truth, the statistics don’t tell the full story. Not even half.

To date, not one defamation case against a social media tech defendant has gone before a High Court jury. And going by the current rather short list of jury cases due to go to trial, that is not about to change any time soon.

This is despite the fact that there were 30 new High Court cases brought between 2016 and 2019 (inclusive) in which Twitter, Google or Facebook featured as defendants (excluding cases that are clearly employment-related or, for example, where contempt of court was at issue). 

The reasons why are fairly simple. 

Twitter, Facebook, YouTube etc. insist that they are platforms, not publishers. They have successfully argued they should be shielded from liability in respect of their content.

Innocent publication

A preliminary High Court ruling in the 2016 Muwema case reinforced this position when Justice Donald Binchy refused to grant a “takedown” order against Facebook on the grounds it was reasonably likely to succeed using the defence of innocent publication under the 2009 Defamation Act. Innocent publication applies when a party is not the author, editor or publisher of disputed material, in respect of an electronic medium.

The case involved a Ugandan lawyer, Muwema, suing Facebook over anonymous blogs allegedly defaming him and his practice. His complaints to Facebook Inc were redirected by the company’s lawyers to Facebook Ireland. 

He was also informed that his requests, for the offending posts to be taken down and for disclosure of the identities of the Facebook users involved, would require a court order. 

On foot of the correspondence, Lavelle solicitors wrote to Facebook Ireland on Muwema’s behalf. Dissatisfied with the response, legal proceedings were issued against the tech firm, seeking damages for defamation and more immediate provisional reliefs such as orders taking down the material and prohibiting further publication.

The judge refused on grounds that pre-trial injunctions of this type could only be granted if the court was satisfied Facebook had “no defence to the action that is reasonably likely to succeed” – which of course it wasn’t.

Muwema also sought a pre-trial Norwich Pharmacal order (an order requiring a third party to reveal information relevant to wrongdoing) against Facebook, directing the tech company to release details that would identify the bloggers behind the allegedly defamatory material – allowing Muwema to sue those directly responsible. 

The court initially agreed to grant the order but at the last minute, Facebook got a leading human rights lawyer from Uganda to file an affidavit in the Irish proceedings, to the effect that the author of the posts, known as TVO, was wanted by police and was likely to suffer torture, cruel and inhumane treatment from security agents if identified. The right of Muwema to bring defamation proceedings was outweighed by the risks to TVO’s bodily integrity.

The court also considered the EU’s e-Commerce Directive, transposed into Irish law, which gives service providers that host defamatory material immunity from liability. 

And maybe with good reason. As one legal source who wished not to be named pointed out, suing big tech firms is purposely difficult. “The e-Commerce regulations are designed that ISPs don’t get hit for every piece of crap put up by every nutcase. Otherwise, it can’t function.” It is worth bearing in mind that Facebook alone has an average of 1.66 billion daily active users.

The immunity granted to ISPs is lost however if they are given notice of defamation and don’t act on it. On legal grounds in Muwema, the judge concluded this did not of itself oblige the court to grant an injunction against Facebook. This would be applied differently in other cases.

Some in legal circles view Muwema as bad law, particularly in respect of the court’s findings on innocent publication. The judge himself said he felt “unease” at some of the conclusions he arrived at. But it remains unchallenged.

“At the end of the day, I’m a businessman. If I’m suing a man of straw, what’s the point?”

Solicitor Peter Boyle

So what is the outlook for would-be litigants whose reputations have been doused and lit online?

“Unclear” according to one of Ireland’s most experienced media lawyers, Simon McAleese – based on the decision in Muwema and a couple of other High Court cases.

“The rise of internet communication and the apparent reluctance of technology companies to take ownership of egregious material for the purpose of removing it inevitably leads to an increase in litigation where they are named as co-defendants,” he said.

He notes that companies like Twitter and Google are often named as co-defendants in a narrow context – either because a plaintiff wants to secure a court order that will compel them to reveal a poster’s identity, or because a person is applying for defamatory material to be taken down.

This is quite different from suing social media giants for damages. As discussed, fixing the big companies with liability as publishers rather than platforms is another matter altogether.

Fighting for a new paradigm

Tweed, however, believes there are several cases in the pipeline that might change the status quo when it comes to establishing responsibility. “We are hoping a legal precedent will be set.” 

RTE broadcaster Miriam O’Callaghan’s defamation action against Facebook and Instagram, over a series of “false” and “malicious” adverts, is “likely to be a lead case”, he says, adding that he recently received High Court discovery on 51 posters, all from Estonia.

He doesn’t expect it to be an easy fight. There is nothing by way of international precedent to rely on, and big tech is known for fighting a hard battle when it comes to defamation. “We’re dealing with companies worth multi-billions, this is not like newspapers. These companies have unlimited funds and there is no incentive to resolve cases or engage,” he said.

The importance of money cannot be overstated. 

Solicitor Peter Boyle runs a boutique practice in Smithfield in Dublin. He says he frequently has difficult conversations with clients who feel they’ve been wronged online, informing them that it’s not worth bringing an action against a blogger or tweeter with no funds to cover damages. He says he sees a lot of mistaken identity cases which can result in ridicule and opprobrium, especially if an embarrassing clip goes viral.

“At the end of the day, I’m a businessman. If I’m suing a man of straw, what’s the point, unless my client has the funds to pay for it? There’s a misconception that if you win, you get your costs,” he said. He is right. Getting costs awarded in your favour is not the same as actually seeing the money arrive in the bank.

But Boyle is glad there are other lawyers with clients that have deeper pockets who may be in a better position to take on the might of the big tech firms. “You need guys like Tweed, more power to him,” he said.