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Defamation Act

Law Reform Commission proposes extension of court privilege to bloggers and social media reporters

A new report by the commission has looked at possible amendments to the Defamation Act.

THE LAW REFORM Commission has recommended that absolute privilege in reporting from court should apply to non-professional journalists who cover court proceedings if their accounts are in line with the standards of court reports published by traditional media.

According to a new report by the commission, bloggers and social media users should be able to claim privilege for ‘fair and accurate’ reports of court cases under the Defamation Act.

The report, which is published today, also recommends that the Act should be amended to include a list of factors about what constitutes “fair and accurate” reports of court proceedings.

It says that doing so would help to ensure that reporters would not be exposed to the risk of being sued for simple errors.

The report was launched in response to a request in 2015 from the then Attorney General Máire Whelan, who sought to examine whether changes should be made to the definition of privilege for court reports under the Defamation Act.

The commission was asked to examine whether claims under the Act should be brought against those covering court proceedings if there is no of proof of malice in their reports.

Under current law, reporters have complete immunity from being sued for defamation if their accounts of proceedings in Irish, Northern Irish, or certain international courts are “fair and accurate”.

However, Whelan requested the report after she found that court reporters should not fear that a “simple oversight, omission or error” could expose them to defamation proceedings.

New criteria proposed

The commission is now proposing a number of amendments to the Defamation Act, including a better definition of ‘fair and accurate’ reporting and the insertion of principles which would legislate for such a defence.

The report acknowledges that professional journalists are aware of the criteria described in case-law, and in guidance by the Press Council and the Broadcasting Authority of Ireland, that court reports should be as accurate as possible.

But it says that these criteria are not currently set out in the Defamation Act, and do not cover court reports that are published online by bloggers and citizen journalists.

The commission therefore proposed amending the Act to make provisions which would help to determine whether court reports are ‘fair and accurate’.

These include recommendations that:

  • Abridged court reports should still be privileged if they give a “correct and just impression” of proceedings;
  • Slight inaccuracies or omissions should not be seen as significant if a report as a whole is accurate;
  • Reports which contain substantial inaccuracies should not be privileged;
  • The omission of certain parts of court proceedings should not be privileged if doing so would create a false impression of those proceedings;
  • Reports which would assume a verdict before a verdict is delivered should not be privileged.

The commission also acknowledged that the proposed extension of the ‘fair and accurate’ defence to online reporters reflected wider concerns about the regulation of social media.

But it said it would not make any recommendations relating to live social media postings from courtrooms during ongoing trials while the Department of Communications considers new legislation to establish an Online Safety Commissioner.

Last year, a practice direction by the courts restricted live posts from courtrooms, except those made by a lawyer with direct interest in a trial, members of the press, and legal commentators whose standing is established to the court’s satisfaction.

The commission said that while there was a need to ensure that trials are not affected by commentary on social media, any legislation should be considered against the EU’s 2018 Audiovisual Media Services Directive.

It also recommended against the introduction of a defence of qualified privilege for court reports that fall below a ‘fair and accurate’ standard, saying that to do so would reduce the standard and quality of court reports and adversely affect defamation laws.

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