Law Reform Commission seeks views on ‘absolute privilege’

Changes to the rights of bloggers and citizen journalists who are writing about court cases are canvassed in a paper published by the Law Reform Commission on Tuesday.

The commission is seeking the views of interested parties as to whether the “absolute privilege” which exists for those who write “fair and accurate” reports on court proceedings should be altered.

The latest issued paper from the commission arises from a request it received from the Attorney General (AG) to examine whether proof of malice should be necessary for someone to be able to sue for defamation over a court report.

The AG also asked the commission whether, in such cases, the person suing should first have to seek the court’s permission to take the case.

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Two years ago the then AG, now High Court judge, Máire Whelan, said reporters should not have to fear that a “simple oversight, omission or error” would expose them to risks of litigation or claims in damages, with consequent risks to their livelihood.

In the paper published today, the commission invites submissions on whether the law that says there is complete immunity in respect of defamation action in relation to court reports that are fair and accurate should be amended.

It wants to hear views on whether the law should be changed so it applies only to a limited group of prescribed persons, such as professional journalists, and what criteria might be used to determine membership of such a group.

The commission said the anonymous nature of internet websites means potentially defamatory material is more likely to be published online than in more traditional media

The paper is asking for views as to whether an oversight body such as the Press Council should be given a role in relation to citizen journalists.

It is also inviting responses to the idea that a new “qualified privilege” regime be introduced for reports of court proceedings that do not meet the fair and accurate requirement, but are not the product of malice.

Anonymous nature

The commission said the anonymous nature of internet websites, such as message boards, forums and blogs, means that potentially defamatory material is more likely to be published online than in more traditional forms of the media.

In New Zealand, it has been proposed that in order to qualify for statutory privilege, an entity has to fulfil a number of criteria, including being accountable to a code of ethics and a complaints process.

A commission there has supported the idea that there “remains a public interest in continuing to recognise the news media as a special class of publisher with distinguishing rights and responsibilities arising from the functions they perform”.

However, the Irish commission has also noted the strong statement of the Irish High Court, in a case called Cornec v Morrice, in support of the role played by persons who blog in an informed and regular manner about matters of public opinion.

The commission paper asks if there should be an equivalent of a Press Council for “internet journalists”, or whether a single regulatory body for the media should cover all its actors.

The paper, Privilege for Reports of Court Proceedings under the Defamation Act 2009, can be read on lawreform.ie. Submissions are requested to arrive by close of business on October 26th.