Defamation Law in Ireland-What You Should Know

defamation law

Everyone is entitled to their good name and reputation. Our constitution, Bunreacht na hEireann, recognises this in article 40.3.2. And our statute books recognises this right, too.

For defamation is now a statutory tort-that is a civil wrong. It is defined in section 6, Defamation Act, 2009 as

2) The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “ defamation ” shall be construed accordingly.

It is worth noting that defamation is now actionable per se, even in circumstances where there is no proof of special damage. Section 12 of the act also allows a body corporate to bring a defamation action.

Defamatory statement

A defamatory statement is defined in section 2, Defamation Act, 2009 as

“ defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly;

 

This statement can be written or oral, therefore a false, oral accusation in a shop of, for example shoplifting or failing to pay for goods, can be defamatory.

Publication can also take place in the traditional written media such as newspapers and magazines but an increasing number of defamation actions are arising from social media websites such as Twitter, Facebook, etc.

We have all seen a raft of debates and exchanges on social media sites which have become extremely heated, often culminating in defamatory statements being published for the whole world to see.

Early in 2017 a Donegal couple were awarded €30,000 in a defamation action they brought against their neighbour arising from false, defamatory postings made by the neighbour on Facebook. The neighbour had admitted the wrongdoing and apologised to the couple.

Statute of Limitations

Section 38 of the act provides that you must bring your defamation action within one year, although this can be extended to two years in exceptional circumstances.

At its simplest defamation will occur where a defamatory statement is made to a third party.

A defamation action is

“defamation action” means—

(a) an action for damages for defamation, or

(b) an application for a declaratory order,

whether or not a claim for other relief under this Act is made

 

Section 8 of the act obliges the parties to a defamation action to swear a verifying affidavit, similar to an affidavit of verification in a personal injuries action, swearing as to the truth of pleadings and assertions or allegations of facts.

Defences to a defamation action

There are statutory defences to a defamation action as follows:

Section 22 provides a statutory offer to make amends and the effect of the offer to make amends is set out in section 23.

Section 24 provides for a statutory apology scheme which will mitigate a defendant’s damage. Such an apology is not an admission of liability and evidence of the apology is not admissible in any civil action as evidence of liability of the defendant.

Remedies for defamation

Section 28 of the Defamation Act, 2009 provides for a declaratory order from the Circuit Court. This order will state that the statement was defamatory of the applicant.

Damages are also a remedy, as set out in section 31 of the act and a correction order can be made by the Courts, pursuant to section 30, and a prohibitory order pursuant to section 33. Section 32 allows a Court to order the defendant to pay aggravated and punitive damages where (b) the defendant conducted his or her defence in a manner that aggravated the injury caused to the plaintiff’s reputation by the defamatory statement.

Section 29 allows a defendant to pay a sum of money into Court in satisfaction of the defamation action.

Constitutional right to good name

Article 40.3.2 of Bunreacht na hEireann states:

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

A defamation action will also include a claim damages for breach of the Plaintiff’s constitutional right to maintain his/her good name.

Defamation proceedings

Defamation proceedings are commenced in the High Court by way of a Plenary Summons and Statement of Claim.

What to do if you think you have been defamed

If you think you have been defamed you should consider getting professional advice. It is easy, in the heat of an argument online, to form the view that you have been defamed but whether you have or not is something you should get professional advice on.

Your good name and reputation is a fundamental personal right recognised in the Irish Constitution and any defamatory remarks that go unchallenged may lead to significant damage to you in both a personal and business capacity.

Depending on the context of the defamatory remarks you may also have other causes of action against anyone who makes such remarks against you, for example breach of contract, negligence, breach of duty.

The High Court Affidavit of Verification In Personal Injury and Defamation Actions

affidavit of verification

An affidavit of verification is required in the High Court to verify assertions or facts alleged in personal injury actions and defamation proceedings. It is to verify a pleading or replies to a request for further information and is required pursuant to section 14 of the Civil Liability and Courts Act, 2004 in personal injury actions, and pursuant to section 8 of Defamation Act, 2009.

A copy is served on the party who is being served with the pleading or replies to further information.

(4) An affidavit under this section shall be lodged in court not later than—

(a) 21 days after the service of the pleading concerned or such longer period as the court may direct or the parties may agree, or

(b) in the case of a requirement to which subsection (8)(b) applies, 7 days before the date fixed for the trial of the personal injuries action concerned. (Section 14 Civil Liability and Courts Act 2004).

The form it should take is as follows:

AFFIDAVIT OF VERIFICATION

O. 1A, r. 10

THE HIGH COURT

20…. No……
Between A.B., …………….. Plaintiff,

and C.D., …………. Defendant.

I, AB, ……………….. of …………………. , the (plaintiff, defendant or state other capacity or authority) in the above-entitled proceedings, aged eighteen years and upwards MAKE OATH and say as follows:

1. I beg to refer to the contents of the (personal injuries summons, defence, reply, further information etc. – as the case may be) delivered herein on behalf of the (plaintiff/ defendant) on the ….. day of ………….. 20 …. *[upon which this affidavit is endorsed] *[and upon a true copy of which marked “A” I have signed my name prior to the swearing hereof].

2. The assertions, allegations and information contained in the said (personal injuries summons, etc.) which are within my own knowledge are true. I honestly believe that the assertions, allegations and information contained in the said (personal injuries summons, etc.) which are not within my own knowledge are true.

3. I am aware that it is an offence to make a statement in this affidavit that is false or misleading in any material respect and that I know to be false or misleading.

SWORN etc

It is an offence to make a statement in an affidavit that is false or misleading and you can be fined up to €100,000 and/or imprisoned for up to 10 years, pursuant to section 29 of the Civil Liability and Courts Act, 2004.

Defamation Law in Ireland-the Facts You Should Know

defamation law ireland

In 2010 Donal Kinsella, a businessman, was awarded €10 m in the High Court in a defamation action against his employer. Kenmare Resources.

We all have a constitutional right to our good name, and protection against defamatory statements being published about us.

The principal piece of legislation in Ireland dealing with defamation is the Defamation Act, 2009.

This act defines a defamatory statement as follows:

“defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly;

Statement includes

  1. Made orally or in writing
  2. visual images, sounds, gestures and any other method of signifying meaning
  3. a statement—

    (i) broadcast on the radio or television, or

    (ii) published on the internet, and
  4. an electronic communication

What is defamation?

Section 6 of the Defamation Act, 2009 sets out the tort of defamation, and it replaces the torts of slander and libel:

6.— (1) The tort of libel and the tort of slander—

(a) shall cease to be so described, and

(b) shall, instead, be collectively described, and are referred to in this Act, as the “ tort of defamation ”.

(2) The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “ defamation ” shall be construed accordingly.

(3) A defamatory statement concerns a person if it could reasonably be understood as referring to him or her.

(4) There shall be no publication for the purposes of the tort of defamation if the defamatory statement concerned is published to the person to whom it relates and to a person other than the person to whom it relates in circumstances where—

(a) it was not intended that the statement would be published to the second-mentioned person, and

(b) it was not reasonably foreseeable that publication of the statement to the first-mentioned person would result in its being published to the second-mentioned person.

(5) The tort of defamation is actionable without proof of special damage.

You will see from the above that in order to win a case for defamation you will need to prove:

  1. The publication of a defamatory statement
  2. The statement is about you, or you can be identified from it
  3. It must be published to a third person, not just to the person to whom it relates (you).

Section 12 provides for defamation of a company, not just a natural person:

12.— The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.

Defences to defamation actions

Part 3 of the Defamation Act, 2009 sets out certain statutory defences:

Remedies for defamation

The remedies are set out in part 4 of the Defamation Act, 2009 and include

  1. A declaratory order
  2. Damages
  3. Correction order
  4. Lodgment of money in settlement of action
  5. An order prohibiting publication of the defamatory statement.

A defamation action cannot be brought after a period of one year from when the cause of action arose, or, only if the Court allows in the interests of justice, two years.

This action cannot be brought in the District Court, though.

Conclusion

Nowadays the opportunity for publication of defamatory remarks has increased exponentially, thanks to social media platforms such as Twitter, Facebook, LinkedIn etc. When discussions online get heated or topics, such as water charges or pylon erection, raise passions it is easy to trade insults and make statements that could prove very expensive.

Just as traditional media such as newspapers, magazines, tv, radio needed to be careful about what was published individuals nowadays can be virtual publishers and get into deep trouble.

Making defamatory remarks on Facebook or Twitter or YouTube is just the same as a newspaper or magazine publishing defamatory material.

And the Defamation Act, 2009 makes it clear as a bell how such causes of action can be pursued, the defences, and the remedies for the injured party.

Time Limits in Civil Litigation and the Statute of Limitations

time-limit-civil-litigation

The time limits within which you can bring a civil action in Ireland are set out in the Statute of Limitations, 1957, as amended by the Statute of Limitations (Amendment) Acts, 1991 and 2000.

However, other limitation periods are set out in the Civil Liability Act, 1961, the Liability for Defective Products Act 1991 and the Civil Liability and Courts Act 2004.

If an action is not commenced within the limitation period, it will become statute barred and the defendant will have a good defence to the claim.

In general, when calculating the time period, it commences on the date that the cause of action occurred. However, there are exceptions eg if the plaintiff is under a disability, where the defendant is deceased, where claims have to be submitted to the Injuries Board in the first instance and in certain personal injury actions where the plaintiff only discovers at a later date that they have a cause of action.

Actions in Tort

A tort is a civil wrong. Generally, the limitation period for bringing such an action is 6 years.

However some torts such as negligence, nuisance or breach of duty and involving personal injury or an action for slander have different limitation periods.

Actions for Personal Injury Based on Negligence, Nuisance or Breach of Duty

Actions in this category must be brought within 2 years of

a)      The date on which the cause of action accrued or

b)      The date on which the Plaintiff first had knowledge of the injury, that the injury was significant, and the identity of the defendant.

When the plaintiff had the requisite knowledge as defined in section 2 of the Statue of Limitations (Amendment) Act 1991:

2.(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person’s date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person’s date of knowledge are references to the date on which he first had knowledge of the following facts:
(a) that the person alleged to have been injured had been injured,
(b) that the injury in question was significant,
(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,
(d) the identity of the defendant, and
(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section, a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him, or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
(3) Notwithstanding subsection (2) of this section—
(a) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and
(b) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.

Fatal Injury Actions

Actions for fatal injury claims must be brought within 2 years of the date of death.

Assault

An action for trespass to the person or assault and battery must be brought within 6 years of the accrual of the cause of action.

Defamation

An action for defamation (including libel and slander) can be brought within one year as set out in the Defamation Act, 2009. There is a possibility of having this extended to two years on application to Court.

Contract

Actions founded on contract or quasi-contract must be brought within 6 years of the breach of contract

1.1 Debts

Actions for the recovery of debts (liquidated sums) are based on contract and actions can be brought within 6 years of when the sum became due.

However, this can be changed if the debtor acknowledges the debt after it becomes due or he makes a part payment. The right of action in these circumstances will be deemed to have accrued on the date of acknowledgement of the debt or on the date of part payment.

This applies regardless of whether the statutory period has expired or not.

1.2 Defective Motor Vehicles

Claims for defective motor vehicles must be brought within 2 years of the date on which the cause of action accrued.

Defective Products

Actions for defective products must be brought within 3 years of either

a)      The date of accrual of the cause of action or

b)      The date on which you had knowledge of the defect, damage, and producer of the product.

Recovery of Land

Actions for the recovery of land must be brought within 12 years from the accrual of the right of action.

Actions against the Estate of a Deceased Person

These must be brought within 2 years of the death of the deceased person unless the proceedings were commenced within the relevant statutory period and were pending at the date of death.

When does time begin to run?

The limitation period begins to run from the date of accrual of the cause of action.

Extension of the Limitation Period

Calculating the limitation period can be altered in certain limited circumstances eg

  • Fraud of the defendant-time begins to run when the fraud is discovered or when it could have been discovered with reasonable diligence
  • Mistake
  • Where the plaintiff is under a disability.

A person is under a disability according to the Statute of Limitations, 1957 when they are

1)      A minor

2)      A person of unsound mind

3)      A convict subject to the Forfeiture Act, 1870.

This definition was expanded by the Statute of Limitations (Amendment) Act 2000 to cover victims of sexual abuse.

A person under a disability can bring an action within the prescribed period of ceasing to be under the disability.

Personal Injury Assessment Board Act, 2003

A claim for personal injuries or a fatal injuries claim needs to be first made to the Injuries Board.

Once an application is acknowledged by the Injuries Board the limitation period stops running; but it recommences six months from the date of a letter of authorisation from the Injuries Board.

When Does Time Stop Running?

Time stops running when legal proceedings have been instituted.

This will depend on which Court you commence proceedings in.

District Court: when a Civil Summons has been sent by post to the Defendant or sent to a Summons Server

Circuit Court: when a Civil Bill or Personal Injuries Summons is issued

High Court: when the summons is issued out of the central office of the High Court.

If you think that you have a cause of action for a wrong done to you, it is essential that you see a solicitor as soon as possible so that any action taken is not ‘statute barred’ and is taken within the time prescribed under the law.

Dismissal for delay or want of prosecution

A court can dismiss proceedings if they are not resolved withing a reasonable time. The Master of the High Court can make an order to dismiss an action with costs for want of prosecution. This can also occur if there has not been a proceeding for 2 years since the last proceeding or where the plaintiff fails to attend for trial.

The Courts can also dismiss a claim for delay or want of prosecution where the interests of justice require it.

Defence of Statute Barred

It’s worth noting that a plaintiff reserves the right to bring legal proceedings even if they are statute barred and out of time. The defendant must plead the statute of Limitations as a defence in these circumstances, or the Court cannot consider whether the case is out of time or not.

It can also occur that the Defendant can be estopped from pleading the statute of Limitations if the defendant or his agent lead the plaintiff, through conduct or words, to believe it would not be pleaded.

Information Technology Law, Electronic Commerce, Illegal Use of the Internet & Acceptable Usage Policies for Internet and Email-the Essentials

information-technology-law

Information technology law covers a very diverse range of topics for businesses and consumers alike in Ireland.

It ranges from data protection to electronic commerce to illegal use of the internet to acceptable usage policies for employees’ use of the internet and email in the workplace.

This article attempts to provide an overview of these areas but do bear in mind that it can only be a brief overview.

However, whether you are a business or consumer or employee hopefully it will point up areas of potential breach of rights and/or obligations so that you can avoid them or seek redress where appropriate.

Electronic Commerce

The Electronic Commerce Regulations 2003

These regulations implement an EU directive which covers the whole area of electronic commerce and the provision of services and goods online.

A key feature is that once a provider of these goods or services is established in a member state of the EU he is entitled to provide his goods/services into any other member state. Nevertheless in Ireland our common law rules regarding the formation of contracts will continue to apply.

Country of origin principle

This states that providers of goods/services will only have to comply with the rules of the country in which those service providers are established.

Information before contract

One of the principle effects of the Regulations is the list of information which must be provided by businesses operating online. This list includes

  • The name of the business
  • The address where established
  • Details of the business including email
  • Details of how people can elect not to receive unsolicited commercial communications
  • The trade register applicable to the business, if the business is registered on a trade register
  • Any supervisory/regulatory authority governing the industry
  • Vat no. of business
  • Prices must be shown clearly and unambiguously

Internet law has a huge impact on internet marketing and the various laws surrounding how we communicate by email and other electronic forms in our marketing efforts.

Rules re emails/direct marketing

All commercial communication should be clearly identified as such

  1. The sender should be clearly identified
  2. Details about how the recipient can register their choice re unsolicited communication should be provided
  3. Promotional offers should be clearly identifiable as such
  4. Competitions and/or games should have their rules of participation clearly accessible

Internet law also requires that other information and the steps taken to communicate are done within certain boundaries….

Other information required re electronic contracts

  • The steps needed to be taken to conclude the contract
  • The means for correcting input errors before placing the order
  • Whether the concluded contract will be filed by the service provider
  • However this does not apply when the contracts are concluded exclusively by email.

Procedures to be followed when contracting online with consumers

When the order is placed by the consumer the supplier should acknowledge it’s receipt without delay by electronic means.

The order and acknowledgment are deemed to have been received when the party to whom it is addressed is able to access it. It is not a defence to refuse to open email when you know it contains acceptance of an offer for example.

European Communities (distance contracts) 2001

This is of enormous significance for any business which provides goods/services by means of distance communication which includes selling on the internet, digital tv, mail order, telephone, tv, radio and newspapers and magazines.

This legislation provides most significantly for a cooling off period allowing the consumer the opportunity to cancel the contract.

These regulations do not apply to

  • Auctions
  • Vending machines
  • Contracts in connection with property.

The distance communication must be the only method of communication with the consumer for these regulations to apply-if a face to face meeting was involved then the regulations do not apply.

A contract will not be enforceable against the consumer unless all of the information outlined above in the Electronic Commerce Regulations 2003 is provided.

In addition details must be provided to the consumer of

  • The main characteristics of the goods/services
  • Price
  • Delivery costs if any
  • Arrangements for payment, delivery
  • The right of cancellation
  • The period for which the price remains valid.

A distance contract will not be enforceable against a consumer unless the consumer has been provided with a written confirmation of the information outlined above.

Written confirmation must be provided during the performance of the contract.

Cooling off period

The consumer has a right to a cooling off period of 7 days during which he can cancel without giving a reason.

If the confirmation obligations have not been complied with then the cooling off period is extended by up to 3 months.

However the consumer’s right to cancel does not apply..

  • For services if performance has already commenced with the consumer’s agreement
  • Goods/services which are subject to change in the financial market
  • For perishable or customised goods
  • For newpapers, magazines and periodicals
  • For audio or video recordings or computer software which was unsealed

If the consumer exercises his right to cancel during the cooling off period then he is entitled to a reimbursement even if the condition of the product is perfect. This is unique in consumer legislation.

The supplier must execute performance of the contract within 30 days and inertia selling is prohibited.

Inertia selling is a demand for an unsolicited product or service.

A person who fails to comply with these regulations will be guilty of an offence and can be fined up to €3,000

These regulations are obviously of enormous importance to internet sellers and must also be read in conjunction with other consumer protection legislation which is covered in this website including sale of goods and supply of services legislation, misleading advertising legislation, unfair contracts and defective products legislation.

Liability of Internet Service Providers

Internet law also lays down rules in respect of internet service providers.

An ISP is not liable for the information it transmits where it is merely acting as a conduit for such information (But the ISP must be passive in this regard)

ISPs are also excluded from liability regarding hosting of websites when the information is provided by third parties. However the ISP will not be excluded from liability when they know that the information being hosted concerns unlawful activities.

ISPs are also exempt from being sued re breach of copyright where they cache information which is copyrighted.

Defamation

The Electronic Commerce Act 2000 makes it clear that the normal rules of defamation apply to information transmitted online and published on websites. However they may have a defence if they are unaware that the material published is defamatory; once on notice of the defamation though they will have no defence.

For this reason it is prudent for website owners to utilise well drafted limitation and exclusion of liability clauses and incorporate them into their standard terms and conditions.

Child pornography

The main act dealing with this issue is The Child Trafficking and Pornography Act, 1998 (amended in 2004).

This act is very broad and wide ranging and even covers ‘depictions of children’ with no need to prove that the images are actually children.

For this reason website owners must make provisions in their terms and conditions to ensure that contributors to blogs, chat rooms etc are aware of this and should be forced to scroll down through the terms and conditions and signal acceptance before being allowed to post comments, material etc.

Illegal use of the internet

1) Hacking-difficult to prosecute but The Criminal Damage Act 1991 makes provision for this.

2) The Criminal Damage Act 1991 covers damage to property and property includes data; damage can include altering, corrupting and erasing data.

3) It also covers the offence of threatening to damage property so even an unsuccessful hacker can be charged under this section.

4) Another section covers the situation where a person has in their possession the means to hack-again they may be charged under this section even though they have caused no damage to data.

5) The act also includes an offence of unauthorised access and this offence relates only to computer crime.

The act also provides very extensive powers to search and arrest under this legislation.

The Criminal Justice (Theft and Fraud Offences) Act 2001 can also be used to prosecute as it provides that it is an offence to use a computer to make a gain or cause a loss to another. This is an example of our ordinary legislation being amended to accommodate the reality of internet law in the 20th century.

Harvesting

This is the operation of collecting email addresses for the purposes of spamming. This clearly is in breach of the Data Protection act 1988 and 2003.

If the data harvested is not personal data it is conceivable that the harvesting may be an offence under the Criminal Damage Act, 1991.

Other offences which may occur include Framing, trade mark infringements when using meta tags, linking to other sites which may breach copyright of the site to which you link. If in doubt consult your solicitor.

Electronic Commerce Act, 2000

This law will not apply to the sale of land or wills which must still be evidenced in writing. This act makes a distinction between electronic signatures and advanced electronic signatures.

This act also recognises that electronic communications, signatures and contracts cannot be denied legal effect simply because they are in this form. However the parties must consent to the information being provided in electronic form for it to have full legal recognition.

Electronic signature

This can include your name typed at the end of an email or a scanned version of a handwritten signature. Generally this type of signature has the same effect as a hand written signature.

Advanced electronic signature

This is uniquely linked to the signatory, created by means under the sole control of the signatory and linked to the data in such a way that any subsequent change of the data is detectable.

Managing employess access to email and internet

Internet law also plays a role in how we manage our employee’s access to internet and email. And there is a tension between internet law and a person’s human rights, it has been held in the UK.

Employment law

You as an employer can face difficulties when it comes to the use of the internet and email by your employees. A range of problems can arise such as

1) employees abusing companies email for personal gain
2) emailing confidential information out of the organisation
3) employees viewing unsuitable content and making unauthorised use of the company’s computer system.

You as an employer can face a tough balancing act between allowing employees reasonable access to email and internet and inappropriate use. emails sent by employees can often cause offence and possibly result in legal action against you by the recipient or offended person.

The commercial reality for you as an employer is that you can not afford to ban employees use completely and it can be useful and efficient to let employees do their personal banking online for example.

The Employment Equality Act defines sexual harassment very widely and because an employer is liable for acts done by it’s employees in the course of their work it can create difficulties for you as an employer and perhaps legal action by an aggrieved party if your employees send emails which sexually harass or bully.

There is also the possibility of a recipient of an email receiving an email that he considers blasphemous.
This too is covered under the Employment Equality legislation and could be considered to be discrimination.

Acceptable Usage Policy

For these reasons you need to have an acceptable usage policy for your employees when it comes to their use of the internet and email.

If you accept that the reality of the situation nowadays is that you will not prevent your employees use of the internet then your Acceptable Usage Policy should cover issues such as to what extent email usage can take place for private purposes…..

  • Can you as an employer access and intercept and review all messages which are sent and received on the computer system?
  • Is internet surfing prohibited?
  • Are outgoing emails on behalf of the company vetted be senior staff?

Because that email could bind your company contractually.

  • Have you a policy for the opening of external emails?….Because they can contain harmful viruses which can threaten your computer system.
  • Have you advised your staff about the possibility of breaching somebody elses copyright by retransmitting or copying their documents or software?
  • Are your employees informed that the downloading of obscene or pornographic material can be a criminal offence?
  • Will your acceptable usage policy set out the procedures and penalties for breach of your policy?
  • If you decide to monitor employees usage is it justifiable and not excessive?

Because if it is over the top you could be held in breach of your employee’s human rights as happened in a 2007 case Copland v United Kingdom.
In this case the European Court of Human Rights held that a college had violated an employee’s human rights by the way in which it monitored her use of the telephone.

It has been held by the courts that phone calls from business premises have rights of privacy.

The important point about your acceptable usage policy is that you have the consent of your employees.

In Ireland the Data protection commissioner is of the view that it is necessary to get the express(in writing) consent of your employees if you wish to monitor their emails.

It is worth remembering that your company’s electronically stored information can be used in evidence in legal proceedings.

And remember that just because you have deleted the files or emails does not actually mean that they do not exist…..Because they can be dragged back up from your computer by computer experts.

You need to accept that without an acceptable usage policy and a prior written warning it is unlikely that you can dismiss an employee for unauthorised usage of your computer.

But a possible exception to this general rule is the use of the computer to download pornography…….especially Child porn.
The Child Trafficking and Pornography Act 1998 contains such severe penalties that if you as an employer are aware that this is happening you should refer the matter to the Gardai.

Conclusion

You should consider drawing up an acceptable usage policy for your employees.

The balancing of your rights as an employer with the employees rights as human beings needs to be carried out by a suitably qualified legal professional.

Related topics that may also concern you include data protection law in Ireland and having an acceptable usage policy for employees’ use of the internet and email .

You might also be interested in

Learn more about small business law in Ireland here.