Duty to monitor sites to be debated in court

An important dispute over whether internet hosting sites have immunity from defamation litigation is to be thrashed out before the Supreme Court.

The issue has a significance “well beyond” the case where it is raised — that of student Eoin McKeogh, who sued over a YouTube video clip falsely accusing him of evading a taxi fare, Michael Howard, counsel for Google and YouTube, told the Supreme Court yesterday.

Rossa Fanning, counsel for Facebook, agreed that the case raises important issues concerning interpretation of the E-Commerce Directive 2000/31/EC, and the Irish regulations implementing that directive.

Those issues centre on whether internet hosting sites may be sued over defamatory material posted on them. Other issues concern whether they have a responsibility to monitor their sites for such material.

Both Mr Howard and Mr Fanning yesterday supported an application by Pauline Walley, counsel for Mr McKeogh, for a priority hearing of the appeal brought by their clients against a High Court interlocutory injunction requiring the internet giants to permanently remove the video clip.

Last December, the three appellants secured a stay on that injunction pending the outcome of their appeals. However, interim orders remain in place preventing any republishing of the material.

Ms Walley said Mr McKeogh, a student at Dublin City University, contended that he was significantly prejudiced by the material which had been posted and he is very anxious the matter be decided. At issue was whether the hosting sites should not just take the material down, but also “keep it down”, which the service providers contend amounted to general monitoring of sites, she noted.

Ms Justice Susan Denham noted the appeal raises important issues and made directions concerning the exchange of legal submissions by the parties. Those directions mean the case will come before the court in late July, when the chief justice will assess if it is ready to proceed to hearing.

In May 2013, Mr McKeogh was granted an interlocutory order requiring that steps be taken by Google, Facebook, and YouTube to permanently remove the video. Mr Justice Michael Peart made that order on foot of his earlier finding that the video was defamatory as the student was not the person in it.

The judge gave the internet companies a month for their experts, and experts for Mr McKeoght, to come up with reports on how to remove it permanently on a worldwide basis.

The companies sought a stay on the interlocutory order pending their appeal against that order.

Last December, Mr Justice Peart said he would grant a stay, pending appeal. The interim orders preventing republishing of the clip must remain in place until the appeal is heard, he ordered.

A full hearing of Mr McKeogh’s High Court action for damages and other orders arising from the clips, initiated in January 2012, remains on hold pending the appeals.