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Ruling tackles novel issue of live stream defamation

A recent case concerning the novel issue of defamation via the live streaming of a church ceremony was considered by the Circuit Court in Tullamore, writes Michael O'Doherty BL.

The community church in question, Cornerstone Slieve Bloom church, held a baptism ceremony for adults in May 2023.

Estranged

During this ceremony, a 15-year-old girl made comments about her father (from whom she was estranged), which the father claimed were defamatory of him.

The statements were published not just to the 80 or so members of the church present on the day, but were also streamed live via the church’s Facebook page.

The father issued defamation proceedings against the church, but not his daughter.

Judge Meehan had to consider various novel issues:

• Should the church be considered ‘publishers’ of the statements which were made by the daughter, even though they had no prior notice of what she intended to say,
• If they were, should they be considered primary publishers – akin to a newspaper or radio broadcaster – or secondary publishers who could avail of the defence of innocent publication,
• Was the defence of qualified privilege open to the church in relation to either mode of publication,

• Should the decision of the plaintiff not to sue his daughter – the author of the statements – have a bearing on the court's decision?

The court had little hesitation in holding that the statements were defamatory, and that the plaintiff – though he wasn't named in the statements – could be identified.

The more complex issues it had to decide, however, revolved around the church’s role in the publication of the material.

Primary publisher

Counsel for the plaintiff submitted that they should be considered to be a primary publisher, akin to a television or radio station broadcasting an interview with a guest, and for whom liability for any defamatory comments made by the guest would be imposed regardless of whether they had any prior knowledge of what the guest might say.

Counsel for the defendant, on the other hand, submitted that if it were to be considered a publisher of the material, it must be in the form of a ‘secondary’ publisher, akin to a social media platform which would only be held liable for the material if they failed to remove it after being put on notice of its existence.

Counsel for the defendant also relied heavily on the submission that, regardless of what form of publisher it may be, the church could avail of the defence of qualified privilege in respect of the statements.

On the publication issue, the court was asked to consider the famous British case of Byrne v Deane from 1937, much-cited in relation to the liability of ‘intermediary’ publishers of defamatory material.

Judge Meehan held that the church was a secondary publisher in respect of the 80 or so people present in the church, but was the primary publisher in respect of the publication via Facebook.

The court held that it did not need to consider the issue of innocent publication in respect of publication to the physical congregation, however, as it held that the church could avail of the defence of qualified privilege to that audience.

In relation to the publication via Facebook, however, the court held that as primary publisher, the defence of innocent publication was not open to it and, more importantly, they could not avail of the defence of qualified privilege for that mode of publication either.

Judge Meehan agreed with submissions made on behalf of the plaintiff that many of the ‘followers’ of the church’s Facebook page did not appear to be members of the church, and as there were no privacy restrictions on the Facebook page to control who could access the broadcast, it could not be safely deduced that anyone watching the ceremony via Facebook would have had an interest or duty in receiving the information imparted by the teenage girl.  

This was held to be fatal to the plea of qualified privilege in respect of the online publication.

Defamatory publication

After finding the church liable for the defamatory publication, the court set the headline award of damages for the publication at €30,000.

It then apportioned the degree of damage caused by the physical publication in the church as against the online publication via Facebook on a 40:60 basis, reducing the award to €18,000.

This was further reduced when the court held that a further 20% should be discounted due to the author of the statements being a concurrent wrongdoer, but not having been joined to proceedings by the plaintiff.

This resulted in a final award to the plaintiff being made in the sum of €14,400.