Defamation and Injunction: Google and Facebook Must Try Harder

May 16, 2013

Defamation of an Irish student has provided a perfectly formed example of why the fact that the Internet never forgets might not be such a good thing – and a likely candidate to be cited in arguments favouring the right to be forgotten. . It has also proved to be an outstanding example of what the judge in the case calls zemblanity.

In the Irish High Court, Mr Justice Micheal Peart had to deal with a case involving a student from Dublin City University who has faced a barrage of ‘the most vile, crude, obscene and generally obnoxious comments’ from ‘nasty and seemingly idle minds’ after a Dublin taxi driver posted a video clip on YouTube, asking for a fare dodger to be identified.  At the time in question, Eoin McKeogh was in Japan but somebody claimed it was him and the abuse began.

Once he returned from Japan, Eoin McKeogh tried to have the video, the comments and all other defamatory material removed from the Internet, initially using the ‘self-delete’ facilities provided by Google and Facebook. The effectiveness of this procedure was a matter for debate in the case – it seems probable that the taxi driver took down the main content rather than it being removed via the ‘self-delete’ facility. But it is established that not all defamatory material disappeared and the latest application was for mandatory injunctive relief requiring Facebook, Google, YouTube, Yahoo! and Crowdgather to ensure that all defamatory material was taken down permanently on a worldwide basis. As the judge observed, in the absence of co-operation from Google and its associated companies and Facebook, it was an ‘almost impossible task for the amateur’.

On that basis, the order made by Mr Justice Peart required experts for Mr McKeogh to meet with experts for the internet companies on how to go about removing all defamatory material Experts must be nominated within 14 days and the meeting between them must take place within the following 14 days. When reports have been prepared and exchanged, the matter can come back before the court to ‘consider the position which emerges’.  Facebook were also ordered to produce an electronic copy of the fake Facebook profile that was relevant to the dispute.

The latest judgment is of interest partly because of the judge’s thinly disguised despair at the defendants’ refusal to co-operate with the plaintiff as the court requested: ‘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 … Every issue was hotly contested involving a proliferation of affidavits, and a veritable mountain of paper.’

The attempt by the defendants to use the shelter of the E-commerce Directive ‘immunity’ for ISPs was postponed for consideration at trial. The judge seemed sympathetic to the use of data protection legislation to bolster the plaintiff’s position.

The full judgment, which includes consideration of the test for the making of a mandatory injunction, is available here.

In an earlier hearing in the case, available on bailii, the judge opened his judgment as follows:

Who would have thought when in the dark hours of the 13th November 2011 a young man got out of a taxi in Monkstown without paying the fare, that this would result in another young man, the plaintiff, who was thousands of miles away in Japan on that date, would discover on the 29th December 2011 after his return to this country, that not only had video footage of the first man exiting the taxi been posted on YouTube by the taxi driver in an effort to have his identity revealed, but also that thereafter another person, travelling the information superhighway that is the internet under the pseudonym ‘Daithii4U’, would see that footage and wrongly identify the plaintiff as being the person who had left the taxi without paying the fare, thereby defaming him, and that this zemblanity, the very opposite of serendipity, would see the appearance of a phalanx of at least a dozen lawyers before this Court for seven hours throughout yesterday for a debate of weighty issues, such as the right to privacy, the right to freedom of the press to fairly and accurately report court proceedings, and the right to an effective remedy, the combined costs of which might be sufficient to purchase a decent house in any part of the country? Yet that is what has happened.

Those combined costs will shortly be sufficient to buy a mansion.