The extent to which internet hosting sites can be found liable
for hosting defamatory comments is due to come under scrutiny by
the Supreme Court. This appeal has arisen following the wrongful
identification of a young Irish student as the culprit in a YouTube
video uploaded by an anonymous user, and hosted by YouTube,
Facebook and Google, in which a young man fled a taxi without
paying the fare. The case demonstrates the difficulties faced by an
individual who wishes to be forgotten by the internet. As
recognised by Judge Michael Peart in his High Court ruling, the
"court does not have a magic wand". Once the
"genie is out of the bottle", it becomes
impossible to undo the damage that has been done.
In May 2013, Judge Peart in the High Court, having found that the
student had been defamed, granted an interlocutory injunction
requiring that internet giants Facebook, YouTube and Google
permanently remove the video clip on a worldwide basis. The
internet companies then subsequently obtained a stay on the
interlocutory injunction pending their appeal on that order. They
have also been granted an application for a priority hearing in the
Supreme Court. The interim injunction preventing republication of
the video clip remains in place pending the appeal.
This case raises important questions as to how the Irish courts
will interpret the E-Commerce Directive 2000/31/EC and the
implementing Irish legislation. In particular, it will also be
interesting to see the extent to which the Supreme Court is guided
by the recent Court of Justice of the European Union
(CJEU) judgment against Google Spain, known as the
"right to be forgotten" case. In that case,
the CJEU held that in certain circumstances an individual has
the right to have information about them removed from the results
of an internet search carried out against their name. The appeal
therefore has the potential to mark a move away from the limited
duty currently placed on internet hosting sites where they must
only remove defamatory material when such material has been brought
to their attention, and instead place a more proactive duty on
internet hosting sites.
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