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Ireland's political and cultural magazine
60 February/March 2024 February/March 2024 61
In the UK, a more robust situation pertains,
and vexatious litigants may only get one bite
of the cherry. A 1981 Act allows the court to
make a ‘civil proceedings order’, preventing a
person from commencing any proceedings
without the court’s permission, indefinitely
“I
will finish by saying that I am proud
of my time as an IRA Volunteer”.
These words by Gerry Kelly MLA,
along with other accounts of his
time in the IRA, helped Malachi
O’Doherty succeed in his application to dismiss
Kelly’s recent defamation case against him.
In two radio interviews, O’Doherty had said
that Gerry Kelly had shot a prison ocer in the
head during an escape from the Maze prison.
Kelly sued O’Doherty for defamation, claiming
that this allegation damaged his reputation.
It was beyond dispute that Kelly had been a
member of the IRA, had been involved in the
prison escape, and had held a gun at the critical
time. Kelly’s own memoir described the incident
in which the prison ocer was shot, in which he
was actively involved, but without actually
naming the shooter.
Kelly had earlier been acquitted of criminal
oences relating to the shooting of the prison
ocer, and argued that this entitled him to be
treated as not having carried it out. However, the
court noted that this did not bring an end to all
determination of liability for the shooting. Civil
actions - including defamation - relied on a
dierent standard of proof.
The question posed by the court was: “Would
Mr Kelly’s reputation have been damaged by Dr
O’Doherty’s allegation, if that allegation had
been false?”.
Ultimately, the court took into account a
number of matters that were in the public domain,
including Kelly’s own unapologetic writings on
his involvement in the shooting, in deciding to
dismiss the action as vexatious or ‘an abuse of
the process of the court’.
In the conclusion to the judgment, the court
made it clear that it considered the action to be a
SLAPP, that is to say ‘Strategic Lawsuit Against
Public Participation’, and awarded costs against
Gerry Kelly accordingly.
The issue of ‘SLAPPs’ has been widely
discussed in light of high defamation awards,
and the suggestion that many media outlets will
settle some dubious cases rather than incur the
expense of letting them to proceed to trial.
Ireland - competing
constitutional rights
The Irish Constitution protects a number of
competing rights that come into focus in
defamation actions, and particularly the issue of
SLAPPs: the right of citizens to a good name; the
right of citizens to freely express their convictions
and opinions; and the right of access to the
courts.
The courts in many cases have also emphasised
that they have an obligation to protect: “the
rights of defendants, the principle of finality of
litigation, the resources of the courts and fair
SLAPP STICK
EU legislation may
prevent vexatious
defamation claims
(SLAPPs)
High defamation awards, and media outlets settling dubious cases
rather than incur the expense of letting them proceed, have propelled
SLAPPs onto the political agenda in Ireland
By Mark Tottenham
procedures” (Bullen v O’Sullivan [2015] IEHC 72)
This means that citizens, particularly including
journalists, must be in a position to discuss
public matters in a robust manner, without undue
concern for litigation. Meanwhile, citizens,
including politicians and other public figures,
must be able to protect their reputation from
unjust attack including malicious falsehoods.
Where these interests collide, the courts must
decide on the resolution.
An example of this was a 1992 article about
Proinsias de Rossa in the Sunday Independent,
which discussed the allegation that the Workers
Party - the party he left to found Democratic Left
- had had connections to the Communist Party of
the Soviet Union. The article included the line:
“Proinsias de Rossa’s political friends in the
Soviet Union were no better than gangsters. The
Communists ran labour camps. They were
anti-Semitic”.
De Rossa sued, successfully. The jury
concluded that he had been alleged to have
personally supported anti-semitism and
Communist oppression, and awarded him
IR£300,000. A majority of the Supreme Court
upheld this substantial award.
THE LAW
60 February/March 2024 February/March 2024 61
The need for strong
defamation laws
It is instructive to watch the nature of political
debate in the USA. For the past decade, it appears
to have been acceptable in mainstream media to
discuss the patently untrue suggestion that
Barrack Obama was born not in the US, but in
Kenya. This carries with it the clear allegation that
his birth certificate is a forgery, that he is not
entitled to US citizenship, and that he was not
entitled to be President.
It is hard to see how a similar situation could
be tolerated in Ireland. Imagine if the view were
canvassed that Leo Varadkar was not entitled to
Irish citizenship therefore not entitled to be
Taoiseach. And imagine that these claims were
aired on national television. Leaving aside the
racist implications of these suggestions, they are
clearly defamatory. It is likely that an Irish court
would grant very substantial damages in
Varadkar’s favour.
Why is the situation in the US so dierent?
Because the protection of free speech in the US
Constitution is given higher weight. In a landmark
1964 case entitled New York Times v. Sullivan, it
was held that public debate was protected by
‘qualified privilege’. This essentially means that,
even if a statement about a public figure is found
to be untrue, the action will only succeed if the
plainti can prove that the defendant acted
maliciously. Malice can be dicult to establish.
While Ireland’s defamation laws may be
considered to stifle debate, it would be hard to
argue that debate would be improved by
importing the US equivalent.
So, on one hand, the media would like to be
protected from the fear that every discussion of
a public issue will carry the risk of a defamation
action. On the other, citizens need to be protected
from false allegations.
In recent times, the concept of a ‘SLAPP’ has
entered the discourse. The idea being that
particularly well-resourced persons (such as
Russian oligarchs) will use the courts of the UK
(in particular) as part of their reputation
management. Not only will they sue the TV station
or newspaper that published the allegations, they
will sue the journalist personally.
The European Union is now preparing
legislation to protect the media against ‘SLAPPS’.
Before looking at these proposals, however, it is
worth examining Ireland’s existing protection
against vexatious defamation actions.
Ireland’s protection against
vexatious defamation actions
The Defamation Act 2009 provides:
“34(2) The court in a defamation action may,
upon the application of the defendant, dismiss
the action if it is satisfied that the statement in
respect of which the action was brought is not
reasonably capable of being found to have a
defamatory meaning”.
While this is strongly worded, in practice is it
likely to be toothless. Even a suggestion that a
government minister is not very good at his or her
job might be said to be ‘reasonably capable of
being found to have a defamatory meaning’, and
such suggestions are made regularly.
More importantly, however, there is extensive
case law establishing that the courts may
summarily dismiss an action if it is vexatious or if
it is ‘bound to fail’.
Such applications are regularly brought. While
the courts always express reluctance to dismiss
a case that may have some prospect of success,
they are generally prepared to dismiss clear cut
cases.
However, an application to dismiss a High
Court action may itself incur substantial costs.
There is likely to be an exchange of several
adavits. The defendant may feel that it is
advisable to retain a senior counsel. And the
hearing itself may take more than a day of court
time. If an award of costs running into several
thousand euro is made in favour of the defendant,
the plainti may simply not have the resources to
cover it.
It should be noted in this regard that Ireland’s
courts are less intolerant of vexatious litigants
than those of the UK or elsewhere. In Ireland, if a
defendant has a vexatious claim dismissed, they
may apply to the court for an ‘Isaac Wunder’
order. Named after the case in which it was
originally granted, such an order generally
restrains the plainti from bringing further
proceedings against the same defendant or in
respect of the same subject matter without leave
of the court. However, it does not prevent the
plainti from appealing the order to dismiss, or
the Isaac Wunder order itself. And it does not
prevent the plainti from bringing proceedings
against other defendants.
In the UK, a more robust situation pertains, and
vexatious litigants may only get one bite of the
cherry. Section 42 of the Senior Courts Act 1981
allows the court to make a ‘civil proceedings
order’, which is an indefinite order preventing a
person from commencing any proceedings
without the court’s permission. Furthermore, Part
2 of the Civil Procedure Rules allows for a ‘civil
restraint order’, which restrains the person from
making further applications in the existing
proceedings, or making applications in certain
specified courts. Other jurisdictions, including
Australia, keep registers of vexatious litigants.
Proposed Irish legislation
In 2022 Minister for Justice Helen McEntee said
she agreed with the Taoiseach, who had criticised
Sinn Féin for allegedly taking too many
defamation actions, that the practice of
threatening legal action — which we should note
is not the same as actual SLAPP action — could
have a “chilling eect” on debate. She said
proposals for a reformed defamation law would
contain “a number of elements that we hope will
prevent that type of chilling eect”.
Proposed EU legislation
In 2022 too, The European Commission made a
proposal for a directive “on protecting persons
who engage in public participation from
manifestly unfounded or abusive court
proceedings (‘Strategic lawsuits against public
participation’)”.
It has been reported that MEPs want to limit
defamation claims to the jurisdiction of the
defendant - in other words, to avoid ‘forum
shopping’ and bringing claims in countries with
high defamation awards. They also want the
victims of ‘SLAPPs’ to be entitled to compensation,
including for reputational damage, and that the
plainti cover the legal costs.
These are laudable aims. But, as we have seen,
any provision for compensation will be costly. If
vexatious proceedings are brought, the court will
need sucient evidence to be satisfied that they
have no reasonable prospect of success. As can
be seen from Gerry Kelly’s case in Northern
Ireland, this may require an extensive discussion
by the court of other publicly available material.
If the plainti in a defamation action is not in a
position to cover the defendant’s costs, let alone
the compensation for reputational damage, who
is likely to foot the bill? It seems likely that, as
with environmental claims in the public interest
under the Aarhus convention, the expense will
ultimately be borne by the public purse.
Mark Tottenham is a practising barrister and
presenter of the Fifth Court podcast
In 2022, the EU Commission
made a proposal for a
directive on SLAPPS MEPs
want the victims of SLAPPs
to get compensation,
including for reputational
damage, and payment of
legal costs
De Ross nd friends outside Four Courts
fter defmtion cse
