Please don’t gamble in the comments section of the blog…….

July 23, 2009

Commercial, Defamation, Gambling

Source: Sunday Business Post write-up: http://www.sbpost.ie/post/pages/p/story.aspx-qqqt=Business+Of+Law-qqqm=nav-qqqid=41591-qqqx=1.asp; Full case report: http://www.bailii.org/ie/cases/IEHC/2009/H133.html

Mulvaney & Others v. Sporting Exchange Ltd (Trading as Betfair) & others [2009] IEHC 133

The two linked cases both concern bookmakers (Seamus Mulvaney and Ellen Martin) who are claiming damages for libellous comments posted by third parties on a forum hosted by Betfair Ltd. Although a number of issues arise in each of the cases, the main focus in this preliminary judgment was on the applicability of European Directive 2000/31/EC (the E-Commerce Directive) which had been transposed into Irish law by the European Communities (Directive 2000/1/EC) Regulations, 2003 (SI 69 of 2003) ahead of a full defamation trial.

This issue is important because while the E-Commerce Directive was designed to remove obstacles to cross-border online services, Article 14 of the Directive can also exempt internet intermediaries from liability for things they host, but did not create. The problem for Betfair is that Article 1(5)(d) of the Directive does not apply to gambling activities. If the court therefore held that the chatroom constituted gambling or betting, then Betfair could not rely on the Directive as a defence.

Ultimately, at [4.15] the court decided that because ‘no significant nexus’ operated between the chatroom forum and the betting sections of the website, no gambling did take place in that area and the Directive did apply.

Given that Betfair could rely on the Directive, the next questions to be answered were whether Betfair was an “intermediary service provider” and if so whether provision of a chatroom comes within the Directive? At [5.14], the Court agreed that it did and held that the use of a chatroom forum by third parties did amount to hosting an ‘information society service’ for the purposes of the Directive. Betfair can therefore rely on the E-Commerce Directive as a defence at the full defamation trial, although whether it will succeed or not will depend on the action that Betfair ultimately took when it became aware of the comments.

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About Kris

Associate Professor in Sports Law, Staffordshire University; British Gymnastics Senior Coach

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