Defamation Bill could be improved, says expert

The new defamation Bill, while including much-needed reform in the area of damages, could have been a better piece of legislation if it had stayed closer to the report drawn up by legal experts upon which it is based, a conference on defamation heard yesterday.

Dr Eoin O'Dell, of Trinity College Dublin Law School, said the Defamation Bill 2006 differed from the Legal Advisory Group of Defamation Report 2003 upon which it drew heavily in a number of key areas.

The version of the new defence of reasonable publication which ended up in the defamation Bill is much narrower than the version outlined in the advisory report and this is to be very much regretted, said Dr
O'Dell.

"Firstly there are more hurdles to be satisfied before a paper can establish the defence of reasonable
publication," he told a conference organised by the Law Society at University College Cork entitled Defamation and Privacy: Developments in Law and Policy.

Dr O'Dell said the Bill also included a provision which attached too much weight to the question of malice to the point that if malice was proven, it prevented a paper or media outlet from using the defence of reasonable publication.

"The Bill says if you are motivated by malice, you automatically lose the defence of reasonable publication whereas in my view, malice should be just one factor which goes to determining whether you are reasonable or not - it should not automatically disqualify."

Dr O'Dell said the Bill also differs from the group report in that it almost makes it an obligation for a reporter to put an allegation to the subject of a story before publication whereas the report simply says any such attempt should be taken into account in any lawsuit.

Dr O'Dell said it appeared many of the defences in the report were eviscerated when the Bill was published but he pointed out that it did bring welcome reform in the area of damages, reform which is badly needed as  evidenced by the recent Denis O'Brien libel case.

"The Supreme Court had already ruled that £250,000 was too much when it sent it back to
the High Court for retrial but the jury weren't allowed be told that and made an award in the retrial
of Eur750,000 - it basically demonstrates libel damages are a lottery," he said.

The Bill requires the court to address the jury, if any, on damages and it also allows the party
to address the jury on the question of damages while it also allows an apology be published
without any admission of liability and these are all very welcome moves, he said. The Denis O'Brien case was also highlighted by Irish secretary of the National Union of Journalists Séamus Dooley, who said it provided "750,000 reasons why this Government should expedite the passage of the Defamation
Bill 2006".

The case clearly illustrated the need for judicial direction to juries, said Mr Dooley, adding that it wasn't just the size of damages but the protracted nature of the case which highlighted the need for more efficient ways of dealing with defamation. He noted that the article was published on June 10th, 1998, but it was April 2005 when the Mirror Group admitted that the article was untrue and defamatory.