Juries should be removed from defamation cases, conference told
Size of libel awards by juries and duration of cases has made Irish system ‘a laughing stock’
Minister for Justice Charlie Flanagan during a symposium on defamation law reform, at the Royal Irish Academy, Dublin, on Thursday. Photograph: Gareth Chaney/Collins
Removing juries from determining defamation cases and the size of awards was among the proposals suggested at a Department of Justice conference to consider reforms to the 2009 Defamation Act.
Minister for Justice Charlie Flanagan, opening the conference, said he hoped to publish suggested changes to defamation law in March and to make legislative proposals before the Dáil’s summer recess next year.
This would conclude a review of the 2009 Act that was meant to have been completed five years after its enactment.
Academics, media representatives and legal professionals met at the Royal Irish Academy in Dublin to discuss the shortcomings and unintended consequences of the 2009 law.
David Kenny, a law professor at Trinity College Dublin, said it was “questionable” whether it was appropriate to allow juries to assess defamation awards in High Court cases given that juries had been almost entirely removed from civil litigation.
Reference was made by a number of speakers to businessman Donal Kinsella, who was awarded €10 million in damages for defamation by a High Court jury in 2010 over a press release issued by his company, Kenmare Resources, only for the Court of Appeals to reduce the libel award to €250,000 earlier this year.
Andrew Scott, a law professor at the London School of Economics, said defamation awards were capped at £300,000 (€350,000) under the UK’s 2013 defamation law but averaged £40,000 to £45,000, closer to the EU norms.
Paula Mullooly, who is head of legal affairs at RTÉ, said that basic changes such as abolishing juries in defamation cases, capping damages and proportionality on the costs of legal proceedings needed to be dealt with quickly in the review to end “the chill effect” on media reporting.
“There are no juries in the Circuit Court and in the Circuit Court you can get defamation awards of up to €75,000 without a jury so how do you then justify it in the High Court?” she asked during a panel discussion.
Ms Mullooly said the Supreme Court’s “Higgins” ruling last year upholding findings that the Act allows juries to assess damages has put “an absolute halt” on “a speedy and effective remedy” in cases through an offer of amends.
Lawyer Sasha Gayer SC, in a later discussion, objected to juries being removed from defamation cases. “It is ironic to suggest that it is not appropriate to ask members of the public whether there is a defence there to matters of public interest being published,” she said.
Ed McCann, group managing editor of Independent News & Media, said that the size of defamation awards and the length of time cases take to run made the Irish system “a laughing stock”.
Burden of proof
Neville Cox, a law professor at Trinity College Dublin, suggested that in cases of significant public interest the burden of proof should be on the aggrieved plaintiff to have to prove the falsity where they claim defamation.
National Union of Journalists general secretary Seamus Dooley said the difference of days or months in the length of a case “can be the difference between the survival of a news organisation or ability to sustain employment”.
“This is not some kind of academic argument. This is about a threat that we don’t have time for. We do need this to be resolved pretty quickly,” he said.