The most eye-catching recommendation made by the report commissioned by Minister for Justice Helen McEntee on Ireland’s defamation laws is to abolish juries in those cases and instead get a single judge to decide.
It is not surprising. Juries in Irish courts have awarded stratospheric sums in damages. One that stands out is the €1.8 million awarded to former political adviser Monica Leech for serious defamation of her professional and personal reputation, arising out of articles published by the Independent newspaper group in 2005.
The award decided by the jury was the highest at the time. It was later reduced by the Supreme Court on appeal to €1.25 million. The superior court said the libel of Ms Leech was a very serious defamation but not among the “most serious”. In the latter category was the defamation of the politician Proinsias de Rossa by Independent Newspapers in 1997. However, the reduced award of €1.25 million was much higher than the £300,000 (€381,000) awarded in the de Rossa case, even taking inflation into account. The judgment gave rise to an anomaly where there was potential to get higher awards for less serious than the most serious cases.
That judgment was successfully appealed on principle (the award was still paid) to the European Court of Human Rights which found there was a risk to the right to freedom of expression by the granting of an excessive or disproportionate award of damages.
Ms Leech had taken the case under legislation dating from 1961. The law was updated in 2009 but it did not stop juries awarding six- and seven-figure sums in the High Court – although most were subsequently adjusted down by the Court of Appeal.
It is unsurprising that the review makes the case for an end to juries in such cases. Defamation law protects a person’s reputation against unfair attack but balances that against other rights such as freedom of expression, public interest, and a free press. Huge damages would have had a chilling effect on media reporting and investigations.
The 2009 Act did update the laws by ending the distinction between libel and slander, introducing new defences including – critically – “reasonable comment in the public interest”, as well as giving a more streamlined definition for defamation. However, jury awards remained very high and will be addressed by this report.
Another big change – even in the space of a decade – has been the explosion of online content and social media, which provided challenges for the defamation laws. The viral nature of social media makes it global, instantaneous and hard to take down. There are a dizzying number of new platforms and media, and there is a huge proliferation of anonymised content (not to say bots). It is a messy and complex scenario that makes it difficult to pinpoint who (or what) is responsible for defamatory comments.
Among the key recommendations is for orders directing online service providers to disclose the identity of an anonymous poster of defamatory material.
However, the report, notably, does not recommend a book of quantum as has happened with personal injuries. The courts have said they would be difficult to apply as the injury (of reputation) is “mainly intangible”. Nor does the report recommend a maximum cap on the basis it would give rise to difficult constitutional issues and would also risk being too rigid.
Another interesting development in recent years is so-called “defamation tourism” into Ireland. The report has concluded the court must be satisfied that Ireland is “clearly the most appropriate place” for action to be brought.
Ms McEntee received Cabinet approval for the report on Tuesday and has promised to draft new legislation to give effect to it by the end of the year.