Be Careful What You Blog
Forbes magazine last week reported:
“Ireland’s media is currently abuzz over a “confidential” legal settlement against a blogger, who allegedly had to pay almost $140,000 in damages for a libelous post, seen by few, swiftly purged from the site, and readily apologized for. This kind of judicial policing has, said the Forbes journalist, “scared the crap out of people.”
Since then further details emerged at the weekend that the Irish blogger has agreed a €100,000 settlement after libelling Niall Ó Donnchú, a senior civil servant, and his girlfriend Laura Barnes.
It appears that this is the first time in Ireland that defamatory material on a blog has resulted in a pay-out.
Barnes, an American book dealer, made a profit of up to €800,000 in 2005 from selling a cache of James Joyce papers to the state. One year later she began a relationship with Ó Donnchú, an assistant secretary in the Department of Arts, Sports and Tourism.
In December 1, 2006, a blogger posted a comment about the couple and the sale of the Joycean manuscripts.
Following a legal complaint, he took down the blog and in February 2007 he posted an apology:
“I posted a blog entitled “Barnes and Noble” on this website on Friday the 1st December 2006 in which I made a number of remarks about Laura Barnes and Niall O Donnchu, particularly in relation to the sale of Joycean manuscripts. I subsequently discovered that these remarks were inaccurate. I unreservedly apologise to both Laura Barnes and Niall O Donnchu in respect of this post.”
However, the pair subsequently issued separate proceedings.
It is understood that the €100,000 settlement was agreed shortly before the case was due before the High Court. A full defamation trial before a jury can cost €700,000-€800,000 in legal costs for both parties.
The blog, which is still active at http://ardmayle.blogspot.com/, contains observations on the arts, literature and sport. The author is not identified, and the litigants may have got his details through his internet server provider (ISP).
Points of Note
One interesting aspect of this case is the fact that the damages appeared to be quite high given that the blog in question was very low profile, has very few inward links and the writer’s profile has only been viewed 3,000 times since the blog opened – or less than once per day.
The level of damages in defamation normally reflects the extent of publication – i.e. the extent to which the defamatory material was actually read. Consequently (leaving aside other factors such as the gravity of the allegations) damages should be greatly reduced where the audience can be shown to be negligible.
Perhaps this illustrates a more general point highlighting the importance of keeping good server logs.
Unfortunately, in the absence of server logs, it is going to be very difficult to rebut a plaintiff who claims that the material appeared quite high in search engine rankings, may have been read worldwide, etc. Consequently a defendant in that position is likely to be on the back foot, especially where a judge assumes that availability online automatically equals a mass audience.
Have you an Internet Policy, and Email Policy and a Social Media Policy or a Social Networking Policy?
Another interesting aspect of this case is the fact that a blogger could be one of your employees and could be defaming your company, fellow colleagues or your customers in their own personal blog or on Facebook, Twitter, etc..
You should have in place comprehensive internet, email and social media/social networking policies to clarify the rules for your employees and to protect your company. Such a policy would also be critical to defending your company in the event of disciplinary action being taken against the employee as a result of unacceptable or inappropriate online behaviour.
If you would like learn more about this area, please contact us via email