The Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) was introduced in the Seanad (Senate; pictured left) on 7 July 2006, and its passage through the Houses of the Oireachtas (Parliament) can be followed here. The second reading began on 6 December 2006 with a set-piece debate, of rather predictable if occasionally interesting speeches, which rather got lost in the coverage of that day’s Budget; and the committee stage continued on 20 and 28 February 2007 with some conventional skirmishing and the occasional grand-standing set-piece battle. The terms of the Bill were outlined briefly in my previous post, so I’d like in this post and the next to turn to a consideration of some of the comments made on the Bill during the Seanad debates so far.

Senator Joanna Tuffy (Labour) (website | blog) suggested an amendment to the Bill to protect those, such as secretaries, who type letters on behalf of others, so that if the letter turns out to be defamatory, the plaintiff has to sue the author not the secretary (see 186 Seanad Debates cols 288-290 (20 February 2007); html | pdf). There was some fun in the debate, and the amendment was withdrawn, but it seems to me that the defence of innocent publication in s25 of the Bill could cover the secretary here. Section 25 provides:

(1) It shall be a defence (to be known as the “defence of innocent publication”) to a defamation action for the defendant to prove that –
(a) he or she was not the author, editor or publisher of the statement to which the action relates,
(b) he or she took reasonable care in relation to its publication, and
(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.

(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if –
(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,
(b) in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the film or sound recording,
(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.

(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to –
(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.

Although the section is designed to ensure, for example, that a typesetter is not liable for a defamation in, say, a newspaper that he or she has typeset, it seems to me that it can also cover the situation which exercised Senator Tuffy. The secretary is plainly not the the author, editor or publisher of the letter; rather, he or she was responsible only for the printing (typing) of the printed material, and typically will have no responsibility for the content of what is typed or the decision to publish it. If so, then the secretary would be able rely on the defence of innocent publication in s25 if sued for having typed a defamatory letter.

However, whether or not s25 reaches secretaries, ISPs constitute another category of intermediaies in the publication process that it ought also to cover (Michael Deturbide’s piece in 2000 (3) JILT is an accessible discussion of the issues). ISPs are not usually authors, editors or publishers, but are more usually simply the conduits by which others can author, edit and publish. They ought, therefore, to be able to rely on the defence of innocent publication.

Nevertheless, to avoid any doubt, in the UK, s1 of the Defamation Act 1996 expressly so provides. In the US, section 230 of the Communications Decency Act 1996 (47 USC § 230; Cornell LII | Findlaw) goes further. In Ireland, Regulation 16 of the European Communities (Directive 2000/31/EC) Regulations 2003 (SI No 68 or 2003) (doc) implementing the E-Commerce Directive (pdf) already provides a general defence for ISPs. The Report of the Legal Advisory Group on Defamation in 2003 (pdf) [disclosure: I was a member of the Group], on which the Bill is largely based, sought to integrate Regulation 18 into the defence of innocent publication and to ensure that a take-down notice would not operate as a gag. However, this has all disappeared in the version of the Bill introduced in the Seanad, and that is a terrible shame. Of course, the general protection of s25 and Regulation 18 will continue to apply to ISPs, but the inter-relation between the two is now rather left hanging. As with the incomplete definition of periodical in the Bill, this is yet another example of how it fails to address, let alone accommodate, internet publication.

Update (21 March 2007): Section 25 was agreed to in the Seanad without debate: see 186 Seanad Debates cols 792 (6 March 2007) (html | pdf).