ANALYSIS ... Can we learn from Ganley’s Pyrrhic social media victory?

In the case of the blogger vs Ganley, there is no clear winner, says Caroline O’Doherty

For the blogger who raised Declan Ganley’s ire, the price was a €50 donation to the Poor Clare Sisters and an online apology.

Ganley maintained the success in bringing one of his most animated online critics to heel just once could not be measured in euro. As he tweeted after news of the apology broke: “Sisters may only be able to buy a few sandwiches with proceeds but point needed 2b made in current environment.”

But what point did he make? That you can, if you have a good lawyer, reign in the apparently untamable beast that is social media? Or that you can, even if you have a good lawyer, only force a prolific critic to give you a fleeting 29 words of remorse?

View the outcome either way but the case that came to light this week shows once again how tweets, blogs, forums and all the other online conversation that makes up that social media are becoming a fertile feeding ground for the legal profession.

Defamation solicitor Andrea Martin of medialawyer.ie has seen a gradual rise in the number of queries and complaints about social media and doesn’t see that changing any time soon.

That’s partly because bloggers and tweeters will keep pushing the boundaries of what they can post online and partly because the targets of their criticisms are becoming more aware of their power to call a halt.

“Only a small number of cases hit the headlines,” says Ms Martin. “Most would be sorted out without any publicity. It’s something that can usually be fixed up very quickly — with one letter or an exchange of letters.

“Most reputable websites will have terms and conditions if there are any third party posters, requiring them not to post offensive or abusive remarks, and those that want to maintain their reputation and credibility will generally act quite quickly.”

The speed of action may be directly proportional to the quantity of law cited and in Ms Martin’s arsenal, she carries the Defamation Act 2009 which makes specific reference to internet communication, Section 10 of the Non Fatal Offences Against the Person Act 1997 which covers harassment and, in rare occasions, the Prohibition of Incitement to Hatred Act 1989, which has been used in at least one prosecution here.

“A distinction needs to be made between posts that are rude and offensive and posts that would give rise to rights under the law of defamation. The latter is quite clear — it’s the same as traditional defamation in print or broadcast. The former is less clear but we do have laws. Victims are not without recourse.”

Paul Tweed, the lawyer who represented Ganley, is equally bullish. “You can not bully, abuse or harass people with impunity,” he says. He does qualify that statement with the all-important, “within our own borders” as laws differ around the world.

For example if a website or internet service provider is hosted in the US, it enjoys almost complete immunity from civil action or prosecution arising out a remark posted by a third party.

Domestic law could be strengthened, he says, by requiring internet operators from giants like Google and Facebook down to local forums to disclose the identities of anonymous contributors whose remarks are the subject of complaints.

That’s something he hopes the Oireachtas Committee on Transport and Communication will consider when it holds hearings on abuses in social media later this term.

Andrea Martin too believes there is room for stronger legislation but says it must be balanced against the right to freedom of expression.

“There are huge and very challenging debates going on internationally about the extent to which social media should be regulated and controlled.

“It needs to be looked at from a rights based perspective, not purely from an emotional perspective.”

It is balancing act, Paul Tweed concedes, and one he has to perform every time he takes a case, particularly those involving “maverick” or crusading bloggers who may enjoy the notoriety of being seen to rankle a high-profile individual and revel in having the big guns brandished against them.

“We have to be realistic because we don’t want to give more publicity to the blogger. Everything goes viral very quickly and if they reach the mainstream media, they consider that a success.”

Which leaves the question of, in the case of the blogger versus Ganley, who really won?