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The takedown of a video where the complainant is not present.

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  • 29-01-2012 8:39am
    #1
    Amalgam
    Registered Users Posts: 6,026 ✭✭✭


    There is a case involving a video hosting site and a particular video, currently moving about the courts in mysterious ways..

    I have a question. If a video does not contain a person in it, that person is not present, how does that video 'concern' the person wishing it to be taken down.

    The courts clarify the innocence of the individual who has issues with the video being online. Why then, should that person have any say if the video remains online, or not.

    It seems the risk of defamatory comments or 'association' is the driving reason here, but there's a risk of defamatory comments just about anywhere, on a video hosting site.

    If punitive action is taken against the video hosting site, does this not set a dangerous precedent?

    Can someone spell it out to me, in legalese, or otherwise?

    EDIT: When I say stay online, that the video should be posted without 'tags' or wording that might cause association in the mind of the viewer. That the clip would be visible, 'as is'.
    Tagged:


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    #2
    MagicSean
    Closed Accounts Posts: 9,897 ✭✭✭MagicSean


    This is the same question I've been wondering for weeks. How can you have something removed that you have no association to? I would consider that decision worse than any kind of SOPA legislation.


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    #3
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    My little understanding of the case is, a video went up online, a person was named as being in the video in comments on the video, that person was not in fact in the video, so that person sought injunctions to stop that defamation. I assume in the arguments in courts it was stated that damages would not be an adequate remedy as the information would be available all over the world.

    In relation to the other injunction, it did what was intended, it delayed the printing of the story in Irish papers until the said papers had the correct information to say the guy was not in the video.


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    #4
    MagicSean
    Closed Accounts Posts: 9,897 ✭✭✭MagicSean


    ResearchWill wrote: »
    My little understanding of the case is, a video went up online, a person was named as being in the video in comments on the video, that person was not in fact in the video, so that person sought injunctions to stop that defamation. I assume in the arguments in courts it was stated that damages would not be an adequate remedy as the information would be available all over the world.

    In relation to the other injunction, it did what was intended, it delayed the printing of the story in Irish papers until the said papers had the correct information to say the guy was not in the video.

    Stopping the defamation would only have required his name being removed. As he was not actually in the video it was not defamatory or in any way related to him so I cannot see how he had any right to seek that it be removed.


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    #5
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    MagicSean wrote: »
    Stopping the defamation would only have required his name being removed. As he was not actually in the video it was not defamatory or in any way related to him so I cannot see how he had any right to seek that it be removed.

    I have checked the courts website, while the case is listed, there is no judgement up yet, so other than the reporting of the case we do not really know what reliefs he sought. I have experience of media reporting of cases which was way off the mark.

    If he did seek the removal of the video by injunction, the only way I can see that he could justify that, is that his name had by then become associated with the video, and if it appeared then his name would appear agin.

    I will say this cases shows the Huge risk anyone takes in High Court injunctions, I have not heard if costs have been decided yet, but if they go against Him as there was 6 defendants if I am not mistaken, he will be in the receiving end of costs bills into the hundreds of thousands.

    My own way to have done it, would have been to send to the papers and the Internet companies, proof, that it was not me, and then sue for defamation, super injunctions are way too risky, and in reality just drag the story out longer.


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    #6
    benway
    Registered Users Posts: 1,061 ✭✭✭benway


    I think that he got an interim on a Wednesday taking it down, followed by a request for a UK style super injunction on the Saturday, which was refused - think the Courts would be very reluctant to grant such an order, with the constitutional imperative that justice be administered in public save in the most exceptional circumstances.

    By the look of things, the interim is still in place:

    http://www.rte.ie/news/2012/0127/mckeoghe.html

    There's an innuendo argument re the video, a la Sinclair -v- Gogarty - although it's not actually him, extraneous information, in the form of the comments and press coverage, may lead to his being wrongly identified as a fare skipper on the basis of the video.

    The standard is less onerous at the interim stage, though, so it's by no means certain that he'll have any joy with the interlocutory application, notwithstanding the fact that there's an interim in place.

    Interesting that Peart is taking the lead on this - definitely one of the more clued in judges in the High Court.


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    #7
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    benway wrote: »
    I think that he got an interim on a Wednesday taking it down, followed by a request for a UK style super injunction on the Saturday, which was refused - think the Courts would be very reluctant to grant such an order, with the constitutional imperative that justice be administered in public save in the most exceptional circumstances.

    By the look of things, the interim is still in place:

    http://www.rte.ie/news/2012/0127/mckeoghe.html

    There's an innuendo argument re the video, a la Sinclair -v- Gogarty - although it's not actually him, extraneous information, in the form of the comments and press coverage, may lead to his being wrongly identified as a fare skipper on the basis of the video.

    The standard is less onerous at the interim stage, though, so it's by no means certain that he'll have any joy with the interlocutory application, notwithstanding the fact that there's an interim in place.

    Interesting that Peart is taking the lead on this - definitely one of the more clued in judges in the High Court.


    Peart is an excelent judge, he takes the JR list and by default most interim injunctions would go through his list. I just checked the Courts website, The last listing for the case was indeed the 27th, not been updated yet. If the RTE report is accurate Peart is saying its all sorted now why are we still going on with it.

    I am guessing here, that all the other defendants have agreed no costs, maybe Facebook, wants to fight that issue, so the plaintiff has no option but to plough on.


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    #8
    benway
    Registered Users Posts: 1,061 ✭✭✭benway


    Laffoy as lead Chancery judge would normally deal with interims, no?

    I'm only surmising here, but it seems that the super injunction was sought against the media defendants and the case against the "John Doe" defendants and - which was dealt with last Friday.

    But there's also another extant motion, returnable for the 10th of February, even if it is marked as being in for costs only. Guess that's the injunctive one as against facebook and youtube. And, of course, there could well be an attachment and commital motion against facebook and google in the offing. :rolleyes:

    Maybe I'm completely wrong and an interlocutory injunction has already been granted ... but I'd be very surprised if that were the case, especially given Cogley -v- RTÉ.


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    #9
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    benway wrote: »
    Laffoy as lead Chancery judge would normally deal with interims, no?

    I'm only surmising here, but it seems that the super injunction was sought against the media defendants and the case against the "John Doe" defendants and - which was dealt with last Friday.

    But there's also another extant motion, returnable for the 10th of February, even if it is marked as being in for costs only. Guess that's the injunctive one as against facebook and youtube. And, of course, there could well be an attachment and commital motion against facebook and google in the offing. :rolleyes:

    Maybe I'm completely wrong and an interlocutory injunction has already been granted ... but I'd be very surprised if that were the case, especially given Cogley -v- RTÉ.

    The type of case would dictate the judge for injunction, deportation the asylum list, commercial matters chancery, and I assume this type in the JR list, I really am only guessing. Any injunction I have been involved in has been in the Asylum or JR list.

    I believe that the interloctory/interim injunction was granted, but it is usual to have that injunction especially on an ex parte basis to be to the return date. It can also of course be to the trial of the action. I can't wait to see Peart's judgement from last week if it was a written one.


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    #10
    benway
    Registered Users Posts: 1,061 ✭✭✭benway


    Judgment's down as having been delivered on the 22nd, would imagine it'll be written, should be up within the next week or two.

    One thing I'll be watching out for is whether it's going to explicitly open the door to superinjunctions in exceptional circumstances, even if this case wasn't one of them. Doubtful, although I guess the jurisprudence is already there to ground that kind of order if the circumstances warrant.

    Think it definitely would have gone to Laffoy in the normal run of things, why I say is that I have a hunch that she's gonna step down soon, possibly next month even, with Murphy taking her place and Peart taking over from Murphy in Chancery 5. She would be a huge loss, one of the very best ... not that I have any reasonable basis for saying this apart from my own guesswork.

    ***

    Just checked Section 33 of the 2009 Act there, seems to have pretty much codified the standard per Sinclair, Cogley, Reynolds -v- Malocco, but using a "no reasonable defence" wording rather than "clearest of cases" per the authorities.
    33.—(1) The High Court, or where a defamation action has been brought, the court in which it was brought, may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion—
    (a) the statement is defamatory, and
    (b) the defendant has no defence to the action that is reasonably likely to succeed.

    (2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order provided that such reporting does not include the publication of the statement to which the order relates.

    (3) In this section “order” means—
    (a) an interim order,
    (b) an interlocutory order, or
    (c) a permanent order
    Would have thought under the circumstances that Google and Facebook would easily have been able to raise some defence that might reasonably have succeeded, but there you go. Curiouser and curiouser.


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