Media Law Update - June 2015

1. Denis O’Brien v RTÉ: a perfect storm of privacy, press freedom and parliamentary privilege

The contentious May 2015 High Court decision of O’Brien v RTÉ gave the Courts an opportunity to clarify how the competing interests of freedom of expression and privacy may be balanced and determine what constitutes a public interest issue.

The Case

The case concerned the well known businessman Denis O’Brien and IBRC seeking an injunction to prevent RTÉ from broadcasting a news report concerning his personal banking affairs with the State-owned IRBC. RTÉ’s proposed report was partially
based on a letter written by Mr O’Brien to an IBRC liquidator, in which Mr O’Brien asked for more time to repay his loans which had expired. The letter also contained details of his indebtedness to IBRC and the timeline for repayment. RTÉ has emphasised that no allegation of wrongdoing of any kind was alleged against Mr O’Brien.

Lawyers for O’Brien argued that the proposed report related to his private finances which were protected by confidentiality and that the disclosure would damage his commercial interests by dissuading other financial institutions from dealing with him. RTÉ argued the report was a public interest issue due to Mr O’Brien’s prominence and IBRC’s State-ownership. Furthermore, RTÉ argued that the right to privacy over what they considered business-only affairs was not authoritative enough to trump freedom of expression.

The Decision

After a three day trial, Mr Justice Binchy granted the injunction sought. Mr Justice Binchy agreed there was no doubt that the corporate governance of IBRC was a matter of public interest but continued: “That of itself does not entitle the public to know every detail of the affairs or operation of IBRC, and certainly not confidential information concerning its
customers.” He limited the public’s right to knowing that IBRC is properly governed and operated and also to knowing whether any of its shortcomings are borne by the taxpayer. He held that RTÉ had presented no substantive evidence which demonstrated a failure of IBRC’s corporate governance.

Aftermath of the Decision

Following the granting of the injunction, some contents of the report were revealed in Dáil Éireann. The media, in the main, did not report the Dáil speeches due to a concern that the reporting of same was covered by Mr Justice Binchy’s injunction. In response Mr Justice Binchy clarified that utterances in the Houses of the Oireachtas are covered by Parliamentary Privilege and can be published.

As a result of the Dáil utterances, RTÉ brought an application to discharge the injunction on the basis that its proposed details were now already in the public domain. Mr Justice Binchy ordered a partial restraint on the injunction limited to information which was disclosed in the Dáil. However, he upheld the injunction in regard to information deriving from legally privileged information which had not been included in Dáil speeches.

Separately, Mr O’Brien has initiated proceedings against the Oireachtas and State arising from the Dáil utterances. It is believed that Mr O’Brien will argue that the effect of the speeches was to decide in whole or in part the case against RTÉ which amounts to an interference with the operation of the courts and breaches Mr O’Brien’s rights under the
Constitution and European Convention on Human Rights.

Comment

Freedom of the press has tended to trump the right to privacy in this jurisdiction. However, O’Brien v RTÉ demonstrates that a high evidentiary threshold must be reached in order for the right to privacy to be trumped by an issue of public importance. The failure of RTÉ to supply substantive evidence that Mr. O’Brien’s agreement with IRBC demonstrated a failure of IBRC’s corporate governance allowed Mr O’Brien to rely on his right to confidentiality.

The aftermath of the decision established the interesting loophole provided by parliamentary privilege. As it stands Dáil Privilege is effectively sacrosanct and it is not for the media to concern itself with whether a TD might be abusing that privilege. We await the determination of the court on how this loophole will be considered in relation to Mr
O’Brien’s other rights. This case is unlikely, however, to lead to a plethora of privacy cases before the Courts. Recent experience here and in the UK has demonstrated that even where a Court might uphold the right to privacy it is very difficult in this era of online communication and social media for the Courts to enforce the right to privacy, even
leaving aside the whole issue of parliamentary privilege. Matters can now enter the public domain in seconds and once they do such information is generally no longer regarded as private. It can also often be counterproductive to seek to enforce one’s right to privacy as the Court’s reach only extends so far and attempts to protect privacy through the Courts can often draw unwanted publicity from elements who have no regard for the rule of law and who are also often largely untraceable.

2. Liability for User Generated Content: Has the ECHR undermined the “Hosting Defence”?

The European Court of Human Rights (ECHR) ruled in June 2015 that the Estonian news site Delfi may be held responsible for anonymous and allegedly defamatory comments published on its website by its readers.

Facts and Decision

Certain comments had been posted on the Delfi website which remained on the website for approximately six weeks and which were removed immediately after a complaint from the person who claimed to have been defamed (referred to as “L” in the ECHR decision). Delfi were sued by L and were found liable by the Estonian Courts. The ECHR held that this decision was compatible with the European Convention on Human Rights. The decision has caused some concern in the media who thought they could rely on the “Hosting Defence” in the E-Commerce Directive. This Defence provides that an Internet Service Provider (ISP) has a defence to a defamation claim if it does not have “actual knowledge” of the defamatory comments published on its website by website users, but on becoming aware of them acts “expeditiously” to remove those comments. In this case Delfi had acted expeditiously once it received a complaint.

Comment

While of obvious concern, this decision will probably not require the media and ISPs to fundamentally alter the manner in which they manage their UGC. The Delfi case is a finding by the ECHR that the decision of the Estonian Courts, in finding Delfi liable, is compatible with the protection of Freedom of Expression in the European Convention
on Human Rights. It does not change the law in Ireland. The decision may however be taken into account by Irish Courts in how they interpret the Irish legislation that implements the relevant EU Directive.

Most media outlets / ISPs which publish UGC will have certain safeguards in place having regard to the law and also the practicalities in publishing UGC, namely:

1. User terms & conditions which set out content that is prohibited.

2. Some filter to ensure certain offensive terms cannot be posted.

3. Some moderation of content to ensure that the integrity of their websites are maintained and are not hijacked by users posting content which is offensive, defamatory or incompatible with the content of their websites.

4. A system whereby UGC that offends no. 3 above is removed promptly even if no complaint is made.

This did not protect Delfi but one has to look at the particular facts of the Delfi case and why it might be differentiated from UGC on other websites:

a. There was a “known public concern” about the UGC posted on Delfi’s website.
b. UGC appears to have been a very large part of Delfi’s commercial operations.
c. It was one of the biggest internet portals in Estonia.
d. The UGC in question consisted of “hate speech” and “speech inciting violence”.
e. The UGC remained on the website for six weeks.
f. The person who sued Delfi was only awarded €320 by the Estonian Courts.

We were already aware from an earlier decision of the ECHR in the Delfi case, that where an article is posted that one believes will generate defamatory and/or offensive comment this gives rise to a greater onus to monitor. The issue remains that where any sort of monitoring is undertaken there is a risk that the Irish courts will find that ISPs who undertake monitoring of UGC cannot rely on what is a “hosting” defence because by moderating one is going beyond mere hosting. However the Delfi decision indicates that proportionality should be applied so that an Irish Court should have to take into account the economics of moderating, the commerciality and/or reputational issues in not
moderating at all and the fact that any claimant in an Irish Court would receive a much higher award than that given by the Estonian Courts.

In terms of what level of moderation might strike the requisite balance between running the risk of losing one’s “host” status and satisfying the criteria from the Delfi decision, this is currently impossible to say with any clarity. As things stand it would appear to be in order to err on the side of preserving ones host status i.e. less frequent moderation
save for high risk content as mentioned above, given that the Delfi case should be regarded as an exceptional set of circumstances.

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