4 8 December - January 2017
T
HE DEPARTMENT of Justice and Equality is now
inviting contributions from members of the
public to inform the review of the Defamation
Act 2009 which is seen as an encouragement
to litigation and a hindrance to a free press.
Ireland has developed an unenviable reputation as a
favourable forum for those maligned, internationally, by
the press.
The act is very wide-ranging but here are some of the
biggest issues:
Statements made in good
faith should never be
deemed defamatory.
Strict liability for defamatory statements, regardless of
intention, is not required by the Constitution, and is
against the public interest. Without effective media scru-
tiny of public officials, corruption can occur, inappropriate
favouritism can go unaddressed, contracts/tenders can
be rigged in favour of connected persons etc.
It must be first recognised that there is an asymmetry
of information between state actors and the media/
public. Public sector actors [PSAs] hold key information,
a lot of which is exempt under freedom of information
laws.
Occasionally, the press accumulates the proof neces
-
sary to publish its knowledge of “secret profiteering” by
PSAs. Perhaps, a whistle-blower conveys the relevant
proof, or secret recording of transactions/commentary
provides sufficient evidence to parry off a defamation
suit. However, this probably only happens in one out of
a hundred cases of corruption, or even fewer
occasions.
The media may have some evidence in 9 of the other
99 cases, but this may not meet the standard of proof
beyond the balance of probabilities. Hence, only one
tenth of cases of identifiable corruption will get flagged
up, under a strict liability standard, whereas if a “good-
faith” standard was applied, another 9 out of 100 cases
could also be reported. This would provide a significantly
higher deterrent against corruption by PSAs. Thus the
price, to the public, of a strict liability standard, is not
just the costs of the corruption in those 9 cases not
exposed, it is the costs of all of the remaining 90 (out of
a 100) cases of corruption which are not deterred from
occurring, because the chances of being exposed is so
low (or that cohort of the 90 that would be deterred,
under a freer and more robust reporting regime).
The public, rather than media, pays the price of
oppressive defamation laws. Whereas, media may have
to pay high insurance premiums, for defamation insur
-
ance, if not large enough to self-insure; this cost has to
be borne by all competitors in the market. The cost acts
an entrance barrier to the media market, and helps insu-
late incumbent media operators from competition.
People need to have governors that serve them; this
is the essence of democracy. Laws, and administrative
decisions need to serve the public interest. Without a
free media capable of playing its oversight role, some
PSAs will inevitably pursue corrupt activities and will go
Defang
Defamation Act
Reform the 2009 Act: recognise intention, eliminate
aggravated and punitive damages and juries, cap awards,
compensate oppressed journalists and elevate free speech
by Kieran Fitzpatrick
POLITICS
1
December - January 2017 4 9
undiscovered by the public. Strict liability erodes neces-
sary media oversight. A 2004 report of the UN on Article
19 ICCPR made a similar point in relation to Ireland. Ire
-
land is one of the few countries in the democratic world
that applies such a standard.
The burden of proof should be placed on the plaintiff
and a defendant should be able to successfully plead
that they acted in good faith in making the contested
statement and this, if reasonably credible, should parry
of any claim.
The Criminal Assets Bureau legislation, for example,
sets the strict liability standard aside. Gardai above a
certain rank can form the opinion that a person has
engaged in criminal activity, and confiscate assets from
otherwise innocent persons. The responsibility rests on
the person, whose assets are seized, to prove
their good name (that they are not engaged
in criminal activity) ; the “accused”
person is required to prove that the
assets seized were purchased/
acquired by legitimate means, beyond
the balance of probability.
So, if Gardai can act on the opinion
that a person is engaged in criminal
activity, and a person has no remedy
other than to go to court to get back the
seized assets, why should plaintiffs be
allowed to claim money from journalists if jour-
nalists are acting in good faith?
A de minimis threshold also, needs to be introduced
- Just because a statement is defamatory in a slight way,
should not automatically attach a punishment and thus
an interference in free speech, as such an approach does
not proportionately respect the right to free speech
under article 10 ECHR. – In Annan v Germany ECHR in
2015, the court stated:
56. In cases such as the present one the Court considers
that the outcome of the application should not, in prin-
ciple, vary according to whether it has been lodged with
the Court under Article 10 of the Convention by the
person who has made the statement in dispute or under
Article 8 of the Convention by the person who was the
subject of that statement. Indeed, as a matter of princi
-
ple these rights deserve equal respect.
A UN report on Ireland from 2000 stated:
The Special Rapporteur encourages the preparation of a
new Defamation Bill. He is of the view that the onus of
proof of all elements should be on those claiming to have
been defamed rather than on the defendant and where
truth is an issue, the burden of proof should lie with the
plaintiff. Furthermore, sanctions for defamation should
not be so large as to exert a chilling effect on the freedom
of opinion and expression and the right to seek, receive
and impart information. A range of remedies should also
be available, including apology and/or correction. The
Special Rapporteur reminds that restrictions on the right
to freedom of expression must be limited only to those
permissible under article 19 of the International Covenant
on Civil and Political Rights.
Proportionality
Free speech conflicts with the right to a
good name. However, both are important
constitutional rights. I would argue that free speech is a
more important right, but let’s suppose that they are
equally important rights.
In Annan v Germany ECHR (App No. 3690/10),
26/11/2015, the court stated:
55. When examining whether there is a need for an inter-
ference with freedom of expression in a democratic
society in the interests of the “protection of the reputa-
tion or rights of others”, the Court may be required to
ascertain whether the domestic authorities have struck
a fair balance when protecting two values guaran
-
teed by the Convention which may come into
conflict with each other in certain cases,
namely on the one hand freedom of
expression protected by Article 10, and
on the other the right to respect for pri-
vate life enshrined in Article 8
(see Hachette v. France, 14 June 2007).
The principle of proportionality
(accepted in constitutional law [See:
Heaney v Ireland 1994 or John Gilligan v
Criminal Asset Bureau, 2005] and under ECHR
law should require that where two rights conflict, both
rights need to be accommodated; this means that one
right should not stand so proud that it tramples on the
other. Each right needs to be attenuated to accommo-
date the other.
Section 32 of the 2009 Act says if the intent to defame
is established, punitive damages in addition to special,
general or aggravated damages can be awarded. It
appears therefore, that the civil offence of defamation
carries a potentially greater punishment that many crimi-
nal offences.
In her master's thesis of 1987, Marie McGonagle
argued that penal damages went beyond what the con-
stitution required to protect a person’s good name.
McGonagle and Professor Kevin Boyle prepared a report
for the Dail urging reform of the Defamation Law in 1988.
Paying enormous damages fails to respect free
2
The public, rather
than media,
pays the price
of oppressive
defamation laws
Denis O'Brien