The Defamation Act, which came into effect this month, is a significant improvement on the old law, but serious problems remain, writes EOIN O'DELL
THE DEFAMATION Act 2009 modernises the law. It provides statutory support for the Press Council and it makes it easier both to take and to defend libel cases. For these reasons, as the Act came into effect earlier this month, Andrew O’Rorke quite rightly afforded it a very warm welcome in The Irish Times.
However, it ducks some important reforms and bungles others, while some of its most significant provisions raise constitutional problems.
For example, it fails to account for internet service providers (ISPs) or to rebalance the burden of proof from the defendant to the plaintiff. The centrepiece defence of fair and reasonable publication is unworkably narrow.
Those issues, along with the ease with which companies can take defamation actions under the Act, might even prove unconstitutional.
Failing to provide for ISPs is inexplicable. In the US, a 1996 statute provides ISPs with a defence for defamatory comments posted on sites hosted by them. An early version of the Bill which became the Act contained a similar provision.
There is no such defence in the Act. Its disappearance during the process of enactment is indefensible in a State that seeks to encourage internet multinationals to locate in Ireland. This should be put right at the first opportunity.
Worse is the deficient defence of fair and reasonable publication introduced by the Act. This defence applies where a statement was published in good faith, on a subject of public interest, the discussion of which was for the public benefit, provided that it was fair and reasonable to publish the statement, and that the manner and extent of publication of the statement did not exceed that which was reasonably sufficient.
As if that’s not enough, the Act goes on to set out 10 factors that may be taken into account in determining whether it was fair and reasonable to publish the statement.
All in all, there are so many conditions here that it is very unlikely that the defence could ever be successful.
By contrast, courts in most other common law countries have developed a far more flexible defence of responsible journalism to give effect to constitutional protections of freedom of expression.
The infeasibly circumscribed statutory defence of fair and reasonable publication is at best a clumsy simulacrum of the less confined defence of responsible journalism.
Before the Act, the Irish courts had been edging towards recognising that the Constitution required something akin to a responsible journalism defence.
If they reach this conclusion now, it would raise serious questions about the sufficiency of the statutory defence of fair and reasonable publication.
Three other rules also raise constitutional problems. First, the Act makes no change to the rule against legal aid for defamation cases. Second, it accepts the rule that once a plaintiff alleges that a statement is defamatory, the law presumes that the statement is false. And third, it reaffirms the rule that companies can maintain defamation actions without having to prove that their reputations have actually been damaged.
All three of these rules are constitutionally dubious, not least because they have been called into question by the 2005 decision of the European Court of Human Rights (ECHR) in the infamous McLibel case taken by McDonald’s against London Greenpeace activists who had distributed a leaflet headed “What’s wrong with McDonald’s?”
McDonald’s had won a pyrrhic victory in the longest-running civil case in UK legal history, but the ECHR held that – given the radical imbalance between the parties, the absence of legal aid for the activists, the presumption that their leaflets were false and the fact that McDonald’s did not have to prove actual damage to their reputation – the European Convention on Human Rights was infringed.
In cases of a similar radical imbalance and for similar reasons, not only would the Irish versions of these three rules also be incompatible with the convention, but they could also very well be contrary to the Constitution.
It is therefore curious that the Act seem to take no account at all of the implications of the ECHR’s McLibel decision.
The Defamation Act 2009 is a hugely significant piece of legislation, which has gone a very long way towards restoring fairness and stability to a notorious area of the law.
However, in some important respects, the Act raises as many questions as it has answered and its deserved welcome must therefore be a qualified one.
Dr Eoin O’Dell is a fellow and senior lecturer in law at Trinity College Dublin. He was a member of the Legal Advisory Group on Defamation, whose 2003 report and draft Bill contributed to the 2009 Act. He blogs at http://www. cearta.ie