Trends in Reputation Management claims in the Irish Courts

RDJ recently acted for renowned international Qatari businessperson, Wissam Al Mana, in achieving a significant settlement arising out of High Court proceedings initiated in February 2020. The proceedings sought an injunction against Meta Platforms Ireland to prevent the future misuse of Mr Al Mana’s image in advertisements, particularly those linking him to financial products or trading services. The action also sought damages for defamation, malicious falsehood, data rights infringement, personality rights appropriation, and passing off.

As a result of the proceedings, Meta issued an apology, which was read aloud in Court by Counsel for Meta, and there was a confidential settlement in favour of Mr Al Mana. Meta committed in their apology to the implementation of robust measures to prevent and tackle such incidents in future and recognised Mr Al Mana’s firm stance on never permitting his name or image to be used in future adverts.

Cases on the rise…

This case brought by Mr Al Mana is one of an ever-increasing number of actions by plaintiffs against large social media platforms in recent years. In reality, it should not come as any surprise that these cases are landing in the Irish jurisdiction with the likes of Meta, Google and X Corp. (formerly Twitter) basing their European headquarters in Dublin. The number of High Court cases issued against the aforementioned companies over the last four years (2020 – 2023 incl.) has almost doubled when compared to the same period four years previously (2016 – 2019). The types of cases are also evolving. RDJ has also recently acted against a social media platform in relation to a client’s account that was suspended. It was alleged that the platform failed to reinstate the account in breach of its own policies. Such breaches can have a detrimental effect on the business of commercial users of social media.

It is believed that a sizeable portion of the claims against these tech giants involve an element of a reputation management/defamation. Pending legislative reform, Ireland is seen as a pro-plaintiff jurisdiction in which to litigate reputational issues and this has only been heightened by reforms in neighbouring England and Wales. It is not uncommon for international disputes on reputation management/defamation to be fought in Ireland. Following Brexit, Ireland is the only English-speaking and Common Law jurisdiction in the EU in which litigants can take a case and many now see Ireland as a “global hub” for reputation management/defamation claims.

According to the latest figures from the Courts Service, the number of defamation claims taken in Ireland jumped from 230 in 2021 to 386 in 2022 (both Circuit Court and High Court). It is thought that social media is acting as a catalyst for the increase in defamation claims. In traditional media, there is usually a system of checks in place with a view to avoiding legal difficulties. Social media on the other hand allows people to publish remarks with little to no filtering occurring. While the social media companies have been parties to many defamation suits, we are yet to see a High Court jury decide upon a case involving any such company. These companies tend to rely on the principle/defence of ‘Innocent Publication’ in their position as ‘internet service providers’ (ISPs) and not ‘publishers’. ‘Innocent Publication’ applies where a party is not the author, editor or publisher of a statement or publication, but contributes to the distribution of the statement in some way.

Social media platforms have also relied on the ‘Hosting Defence’ pursuant to Article 14 of the eCommerce Directive. It stated that providers which host information are not liable for the information stored on their systems by their users so long as they do not have actual knowledge of illegal activity and once they obtain knowledge, they act expeditiously to remove the infringing information.

The newly implemented EU Regulation, the Digital Services Act (“DSA”), sets out a range of new obligations for online services with the aim of increasing the safety and transparency of online environments. There is a new “Hosting Defence” under Article 6 of the DSA, which replaces the old “Hosting Defence”, although the wording is very similar, and it is unlikely to fundamentally change the way the Hosting Defence has operated under the eCommerce Directive.

It seems that ISPs will continue to say that it is not always clear to the host platform if the posting party has a legal defence available to them, and it is therefore difficult for the ISP to establish if the material amounts to illegal content. With billions of users every day, it would be a tall order to hold the social media companies accountable for every defamatory statement posted on their platform by a private individual.

Unmasking the anonymous poster: The role of “Norwich Pharmacal Orders”

It is often the case that Plaintiffs sue social media companies for the purpose of seeking an order compelling the removal of unlawful material or to establish the identity of a publisher of the material. It is rare that a Plaintiff would only seek damages in such a case. A difficult hurdle facing an injured party is simply identifying who posted the harmful material in the first place. The Courts have on occasion made the necessary Norwich Pharmacal Order (NPO) against social media companies. An NPO is a type of court order which compels a defendant to provide information concerning the identity of an anonymous third party.

In Walsh v Twitter International Company (High Court, 2 October 2015), the Plaintiff had appeared on RTE’s Prime Time and was subsequently a victim of defamation on social media. The Court in that instance granted an NPO and Twitter were directed to supply the email address of the anonymous Twitter user to the Plaintiff. An Order was also granted in Muwema v Facebook Ireland Ltd (No. 2) IEHC 69. In Muwema, a Ugandan lawyer took a case against Facebook for defamatory comments posted anonymously on their platform. The Order was successfully challenged however on the admission of new evidence which demonstrated a high probability that the anonymous poster’s life would be in danger if their identity were revealed.

Given the ever-increasing number of cases taken against ‘Big Tech’ in Ireland, it is expected that the number of NPOs sought will only go upwards. The ability for the Court to order the identification of wrong doers is a far-reaching power and the extent of this power was recently clarified in the Court of Appeal decision in Blythe v. The Commissioner of An Garda Síochána [2023] IECA 255. The Court set out that the previous Irish standard of requiring “very clear proof” of wrongdoing is overly burdensome on the Plaintiff, while the Court would not go so far as to permit the “good arguable case” standard advanced in England and Wales. The Court held that the appropriate test in Ireland is whether the applicant has shown they have a “strong case” against the alleged wrongdoer and the Court must be satisfied that (i) the information sought is likely to be in the possession of the respondent and necessary to bring proceedings or pursue another remedy ; and (ii) the applicant has no other channel available to them to obtain the information sought under the Order. The Court also noted that the Orders should only be granted for the purpose of bringing a claim and not to prove the facts of the claim.

As it stands, only the High Court has jurisdiction to grant NPOs in Ireland. However, the General Scheme of the Defamation (Amendment) Bill proposes allowing both the High Court and going forward, the Circuit Court, the power to grant orders identifying anonymous parties involved in defamation claims. This change to the law will make NPOs far more accessible to litigants and thus increase access to justice for those suffering reputational damage. The Defamation (Amendment) Bill has been listed as priority legislation and is expected to be enacted this year.

While an increase in NPOs is expected in light of the proposed reform, it is unlikely that we will see a tsunami of such applications in the courts any time soon. There are still significant costs associated with bringing such an application and the relief will only be granted where the Court believes it to be absolutely necessary.

Fraudulent Advertisements

A continuing trend is the use of well-known public figures’ likenesses in fraudulent advertisements. Much like the case taken by Mr Al Mana, broadcaster Miriam O’Callaghan reached an out of court settlement in 2022 with Meta Platforms Ireland. The settlement came after a lengthy legal battle over fake ads using the name and image of Ms O’Callaghan, which appeared on Facebook and Instagram without her permission having been posted by “malicious third parties.” Following the action, Meta committed to the introduction of a tool to report misleading advertising to a specialist team within Facebook for review. In her case, Ms O’Callaghan sought damages for malicious falsehood, unlawful appropriation of personality, various breaches of her constitutional rights and defamation as well as a permanent injunction restraining the publication of the adverts.

Last year a significant public figure was again the victim of scam advertisements when Tánaiste Micheal Martin appeared in advertisements on legitimate websites linked to “pseudo-newspaper articles” connecting him to a cryptocurrency scam. In December, the Court granted Mr Martin permission to bring proceedings against Google Ireland Ltd and Google LLC. Again, a Norwich Pharmacal Order was sought with the Court ordering Google to provide Mr Martin with any and all names, email addresses and phone numbers related to the account. Further to this, Google were also required to provide details of any financial accounts or systems used to pay for the advertisements as well as the IP addresses from which the accounts were accessed to enable the publication of the adverts.

AI: A new frontier in the Wild West?

A recent defamation claim brought by RTE’s Dave Fanning has been described by his lawyer as “the new frontier of libel law.” The claim comes following the publication on Microsoft News (MSN) of Mr Fanning’s image alongside an article regarding an unnamed broadcaster’s trial for sexual offences with the headline “[p]rominent Irish broadcaster faces trial over alleged sexual misconduct”. Mr Fanning had no connection with the trial whatsoever. It is thought that the news aggregator used artificial intelligence (AI) to mistakenly link the article with the photo of Mr Fanning. In January of this year, the proceedings were before the High Court in an application to serve proceedings outside Ireland on BNN. BNN is a Hong Kong based organisation who Mr Fanning’s legal team allege supplied the article to Microsoft News. The Court heard that proceedings have also issued against Microsoft Operations Ireland Ltd.

The case is one of the first crossovers in this jurisdiction of AI and defamation law and will serve as a signpost for what is to come. While the benefits of AI are constantly touted, these proceedings highlight the very real risks associated with an over reliance on new software programmes and emphasise the need for legal frameworks to keep pace with ever evolving technologies. The Irish High Court will once again have to grapple with a legal examination of the interaction between large multinationals, defamation and online publication.