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Ireland can remove the chill factor from defamation laws - and protect citizens' good names

If ‘falsity’ were to become an element of the tort (to be proved by the plaintiff) rather than a defence, then this would be a radical, but possibly beneficial change. writes Neville Cox, Professor in Law.

Neville Cox

A SIGNIFICANT NUMBER of laws in Ireland can be seen as existing to vindicate or defend the rights of citizens. 

Defamation law, however, seeks to engage with the potentially tricky business of rights balancing.

On the one hand, there is the right to freedom of expression for the person or entity accused of defamation.

On the other, there is the right to a good name (and possibly the right to privacy) of the person who is the subject of the allegedly defamatory publication. 

Both of these rights are protected under the Irish constitution – indeed the right to a good name is listed, in Article 40.3, as one of the very few rights which the state will, ‘in particular’ protect and vindicate. 

Similarly, both these rights are deemed to be protected under the European Convention on Human Rights. 

Thus a defamation law, or a judge in a defamation case, must seek to draw an appropriate balance between these competing rights. 

The difficulty, however, is that there is simply no obvious or tangible answer to the question of how this balance should be drawn, and one must be careful when one is presented with allegedly clear answers in this regard, because of the likelihood that the entity presenting the answer has a personal agenda that favours one of these rights over the other.  

There is no doubt, in other words, that the right to freedom of expression is hugely important and, at its best, a cornerstone of democracy that can facilitate lights being shone in inappropriately dark places. 

On the other hand, a good deal of argument to the effect that defamation law should be weighted in favour of freedom of expression comes, inevitably, from media outlets who clearly have a vested interest in protecting themselves from the impact of defamation actions. 

Similarly, the right to a good name is a very important thing.

The reality is that the publication of false information about someone who has the capacity to injure their reputation can be incredibly destructive – destructive to someone’s psychology, to their business interests and to their families. 

On the other hand, it is also clearly the case that people with power have used the threat of defamation actions as a way of ensuring that stories, even true stories, about them never saw the light of day. 

The European Court of Human Rights traditionally appeared to favour an expansive protection of the right to freedom of expression, especially where public interest material was at stake and accepted that this must, invariably, mean that the rights to a good name of public figures, and especially politicians would be limited. 

In more recent years, however, it has strongly asserted the value of a good name especially where the relevant publication has the capacity to impact on the private life of a person or persons. 

Thus it expects a defamation law simultaneously not to chill or punish public interest speech, but also to vindicate a citizen’s right to good name and respect for private life. 

The difficulty is that it is not clear how a law can achieve both of these things effectively – because it is not clear how the societal claim to access to ‘public interest’ material should be balanced against the individual claim to a right to a good name. 

The obvious suggestion is that it is only when a statement is true that it should be protected.

This, however, reveals what, in my view, is the most important choice facing legislators as they consider reform of Irish defamation law.  

As things stand, a plaintiff must prove that there has been publication of a defamatory statement in which [s]he has been identified. 

Critically, [s]he need not prove that the statement is false – rather ‘truth’ is a defence that must be proved by the defendant. 

This is impossible for many media defendants who will assert the truth of a story but, because it is based on information provided by a confidential source who is not prepared to have his or her identity disclosed much less testify to the truth of the information, they will not be able to prove its truth.

In other words, if the law were to resolve the rights balancing issue by reliance on the existing defence of truth, it would still mean that there would be an obvious chill on the publication of much public interest material (and this is why courts and legislatures around the world have sought to develop various kinds of defences based on fair and reasonable publication on a matter of public importance).   

If, however, ‘falsity’ were to become an element of the tort (to be proved by the plaintiff) rather than a defence (even if only in cases involving public interest publications) then this would be a radical, but possibly beneficial change.

There is at least an argument to make that it would, in general, be less difficult for a plaintiff to prove falsity than it would be for the media defendant working off confidential sources to prove truth.

This alone may suggest that it would be an approach that would involve a more effective balancing of the competing rights in this area.

Neville Cox is Professor in Law, Dean of Graduate Studies, Trinity College Dublin. 

***

The Department of Justice and Equality began a public consultation on current defamation laws (the Defamation Act 2009) in 2016. In its submission, Journal Media described defamation actions one of the most “serious dangers to media organisations” due to the “unpredictable level of awards, the very significant legal costs and the lengthy process of defending an action”. 

Calling for the introduction of a requirement on a claimant to prove serious harm had been done prior to even taking a defamation case, as is the case in England and Wales, CEO Adrian Acosta wrote: “The ease in bringing a defamation claim against a publisher ­ in contrast to the cost, time and resources required to defend such a claim ­ creates an imbalance that incentivises financial settlements. This lack of balance also acts as a deterrent to possible resolutions without a drawn out legal process.”

Journal Media also made submissions about case management, the level of awards and user-generated content. You can read that submission in full here.

This week, Newsbrand Ireland – an umbrella group representing many of Ireland’s newspaper titles – launched a campaign to mark World Press Freedom Day. It is urging for reform of Ireland’s defamation laws, which it says are among the most restrictive in Europe and throughout the English-speaking world. It also calls for a ‘serious harm’ test; a cap on damages; and the abolition of juries for defamation cases. Currently defamation suits are the only civil actions for which juries are used.

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