The Irish High Court Orders an “Imaginative Remedy” for an Innocent Plaintiff Defamed on YouTube and Facebook

In McKeogh v Facebook Ireland Limited et al, Record No. 2012/254P, High Court, Ireland, the Irish High Court had to decide whether an innocent person who is defamed on social media can get the intermediaries, YouTube and Facebook, to assist with removing the defamatory materials that appeared on their websites. This was an “unusual case” for the Court because the parties failed to agree on whether it is possible to remove the defamatory materials and the Court could not order a mandatory injunction to remove the content without knowing the precise steps that would be required to do so. Thus, the Court was “imaginative in trying to fashion an appropriate remedy for the plaintiff” and ordered the experts of the parties to meet to devise a solution that can be incorporated into a mandatory injunction. This case originated when someone wrongly identified a young student as the person seen on a video posted on YouTube exiting a taxi in Dublin without paying the fare. The taxi driver posted the video clip on YouTube in an effort to seek help in identifying the young man in question. One person wrongly named the plaintiff as the culprit and thereafter, “a miscellany of the vilest, crude, obscene and generally obnoxious comments about him appeared on both YouTube and on Facebook.” The plaintiff brought an application for mandatory injunctive relief to take down, permanently and on a worldwide basis, all material defamatory of the plaintiff arising from the posting of the video clip in question. Google and Facebook maintain that their sites contain an effective self-delete facility by which persons such as the plaintiff who object to certain material posted about them, including defamatory materials, can themselves have it taken down and removed forever. However, the plaintiff argued that the self-delete facility is limited in scope and is not effective in a total removal on a worldwide basis. Accordingly, the plaintiff sought assistance from YouTube and Facebook but was met with resistance. The Court notes it is understandable that “the defendants might not wish to open a floodgate whereby much time and personnel might be required if they were to enter into direct contact with persons who might wish to have nasty stuff taken down and would wish to rely on the self-delete mechanisms which they feel are adequate for the purposes”. But given the innocence of the plaintiff and the prejudice caused by such defamation, the court agreed that the plaintiff has raised a fair issue to be tried and the balance lay in favour of granting a mandatory injunction. The Court left a number of issues to be heard at the full hearing, such as whether or not Google and Facebook come within the qualified exemption of limited liability provided by the E-Commerce Directive 2000/31 (transposed to Irish law by the European Communities). However, the Court concluded that a payment of damages cannot be an adequate remedy as long as there is any possibility that all offending material can be removed from the internet. But the precise terms required for the defendants to fully comply with the mandatory order were not available to the Court. Thus, the Court ordered experts of the plaintiff and the defendants to meet and produce a “report that would set forth what steps are to be taken to achieve the total takedown which the plaintiff requires or at least what steps are possible to achieve that objective as far as reasonably possible.” In the upcoming weeks, it will be interesting to see what the outcome of this report will be and whether it will assist the Court to order a mandatory injunction on the intermediaries to remove the defamatory content. Summary by: Sumaiya Sharmeen