High defamation payouts ‘threaten the future of newspapers’

Irish newspapers are being forced to engage in “self-censorship” to avoid the risk of being sued and facing the high levels of damages awarded in defamation cases, the Press Ombudsman has said.

Speaking following the dismissal of Denis O’Brien’s case against the Sunday Business Post, Peter Feeney said the high cost of defamation awards was “threatening the future of newspapers” and that Irish levels were “way out of line with the average in other countries”.

Mr Feeney questioned whether Irish juries should hold the authority to decide on the level of damages awarded in libel cases, saying this responsibility should lie with the judge. He also called for the level of settlement to be brought down to the European average and warned of “enormous” legal costs that discourage ordinary people from taking defamation action.

“Irish levels are way out of line with the average in other countries,” Mr Feeney told RTÉ’s This Week programme. “It’s about re-establishing your reputation. To re-establish your reputation, why do you need €100,000? Why can’t you get €1,000?

“We’re not getting the balance right.”

Mr Feeney called on more people to make use of the press ombudsman’s offices to re-establish their reputation rather than going down the “costly and long time frame of defamation actions in courts”. He added that most complaints made through the press council are resolved informally.

‘Wild west territory’

Asked whether there were plans to introduce changes to defamation law to reflect the prevalence of online news and social-media commentary, Mr Feeney warned that social media giants were largely operating without regulation in these areas and called for further pressure to be placed on big tech to “get their own house in order”.

“If they don’t adequately address it, it is necessary that legislation be passed. Of course, there’s always issues about freedom of speech and the right of expression, so you have to get that balance right. But at the moment the balance is not right; it’s distorted in favour of an unregulated, wild west territory.”

A review of Ireland's defamation laws is due to be completed by the Department of Justice next month. According to Minister for Justice Charlie Flanagan, it will cover the role of judge and jury in libel cases, aspects of defence and privilege rules, pre-trial protocols, the role of apologies and court procedure.

The review is also tasked with recommending whether any changes should be made to the level of damages awarded in defamation cases, which are frequently a subject of complaint by publishers, who say the Irish laws of defamation are among the strictest in the Europe.

It is also due to report on whether there should be changes to the defences that can be offered in a libel case: truth, absolute privilege, qualified privilege, honest opinion, fair and reasonable publication on a matter of public interest, and innocent publication. The review’s terms of reference also require it to examine if the provisions of Irish law are “adequate and appropriate in the context of defamatory digital or online communications”.