Defamation Act will facilitate more sensible, efficient justice
ANALYSIS:ARGUABLY THE longest running saga concerning legislative reform finally came to an end during the summer when the President signed the Defamation Bill 2006 into law (it came into force yesterday), writes ANDREW O'RORKE
The impetus to change the law on defamation originated in 1987. Douglas Gageby, on his retirement as editor of this newspaper, engaged with the National Newspapers of Ireland (the representative body of newspaper publishers) – in particular its co-ordinating director Frank Cullen – to promote and further this reform. A report was commissioned from two leading academics, Kevin Boyle and Marie McGonagle, which was presented to the then attorney general and now Chief Justice John Murray.
He referred the issue to the Law Reform Commission to consider, which it did, but it has taken numerous other reviews, reports, consultations and considerable lobbying to achieve the end product – resulting in a mild, fairly non-controversial Act – excepting the blasphemy provisions, which have no bearing on the law of defamation or its practice.
Government has always been suspicious of media’s perception of its own importance to society. It is an uneasy relationship, which has probably deteriorated in recent times with the increasing examination and analysis of executive action and conduct. There was a marked reluctance to proceed with new legislation, as is evidenced by the almost 20-year gap in finally introducing the Bill in 2006 and the delays since then, but ministers for justice Michael McDowell, Brian Lenihan and finally the incumbent Dermot Ahern persevered to the point of enactment.
On its original introduction in July 2006 the Bill was accompanied by a Privacy Bill at the insistence of some ministers, who sought to restrain what they perceived as intrusive actions and excesses of a number of newspapers and broadcasters.
The press industry recognised these concerns and established, independently of legislation and government, a non-statutory Press Council, including the Office of the Press Ombudsman, which has now been in operation for almost two years, to hear and consider complaints from members of the public. Complainants who previously did not wish to go to court, or who had no right to do so under existing law, can now avail of a quick, effective and free service to seek a remedy for their complaint from the Press Ombudsman and Press Council.
The Defamation Act empowers the Minister for Justice to recognise, and thereby give statutory protection (but not governmental control) to, the Press Council and its objectives. The Act further sets out minimum requirements in relation to a Press Council, the most important of which are that it shall protect the public interest by ensuring ethical, accurate and truthful reporting; maintain certain minimum ethical and professional standards; and ensure the privacy and dignity of the individual is protected.
The Privacy Bill remains on the Order paper of the Seanad and, notwithstanding the recognition of the Press Council and its successful operation to date, Ahern has clearly indicated that he will proceed with the enactment of privacy legislation in due course.
Freedom of expression is a fundamental right, a cornerstone of any democratic, tolerant society, and when sought to be exercised by journalists it should be for the benefit of and on behalf of that same society and the public’s right to know. It is a precious right, but not one that can be exercised in defiance of others’ rights and certainly not if it vilifies another person or paints an untrue picture of that person, their character or actions, which is the essence of defamation.
It has been a long-standing complaint of journalists that they have operated under draconian libel laws in this country. Politicians have countered that the media have free rein and are not answerable to the same standards as the rest of society. These are subjective perceptions, and as is often the case in evaluating opposing viewpoints, there may be some element of truth in both.
It is right that healthy tension should divide the two, representing the democratic choice of the people and the resultant scrutiny of the exercise of power. Defamation law to some extent mirrors that contrast, as is evidenced by the contributions to the Oireachtas debates on the passage of the legislation.
The 2009 Act modernises the law and puts it on a par with other civil legislation governing the conduct of litigation. There are no revolutionary changes in its provisions, some of which I note. To some extent it is lawyers’ law incorporating amendments which will facilitate all sides in the better and fairer conduct of cases. Proceedings will have to be instituted within one year (with a possible extension to two years) of publication of the defamatory material – it had been six years; an apology published subsequent to the original defamation will not be regarded as an admission of liability, as was the case heretofore; the lodging of a sum of money with the defence in satisfaction of the plaintiff’s claim will not have to be accompanied by an admission of liability, as in the past.
By way of a new procedure, the case for the complainant and the intended nature of the defence must be identified ahead of the trial by the exchange of affidavits setting out facts to be relied on at hearing. In a novel proposal and one that will concern editors, the court, where the defendant has no defence, can order publication of a correction and specify the form, content, and manner of publication.
A number of existing defences have been amended, re-enacted or codified, including, truth (justification), honest opinion (fair comment), privilege – absolute and qualified – consent and others. However, there is one major statutory innovation – that of fair and reasonable publication (on a matter of public importance), ie the publication of a statement in good faith on a subject of public interest in a reasonably sufficient manner. Where it is fair and reasonable to publish the statement, it shall be a good defence to a defamation action. The origin of this defence is to be found in Albert Reynolds’s case against the Sunday Timesin England, and in a couple of subsequent Irish cases.
The defence may apply even if a statement’s accuracy is in doubt. If it can be shown the newspaper acted in line with guidelines in the Act identifying what is meant by fair and reasonable, the defence should prevail. Newspapers will rely on this provision in defending actions. Judicial interpretation and application of these guidelines will be critical in determining the extent to which public figures may have cause for concern in the future conduct of their functions.
Juries can now be addressed on the nature of damages and comparative awards. That was not the case, as was evidenced by the startling results in O’Brien v Mirror Group Newspapers. A jury awarded €317,000 to Denis O’Brien, on foot of an unfounded allegation of bribing a politician. It was seen as disproportionately high by the Supreme Court, which ordered a retrial. The second jury, which could not be told of the substance of the two earlier High and Supreme Court outings, awarded O’Brien €750,000!
Under the new Act, the Supreme Court on appeal can substitute its own figure if it deems the original award excessive. Interestingly, in the earlier Independent Newspapers v Ireland case before the European Court of Human Rights, the court found that an award of €381,000 made to Proinsias De Rossa in 1997 for a libel published by the Sunday Independent, and approved by the Supreme Court as not disproportionate, was not excessive. It also rejected arguments that an Irish jury should be guided on damages.
Another novel feature allows an aggrieved party to apply speedily to the Circuit Court for vindication of his/her good name without seeking damages. As a practitioner, one is frequently told the primary purpose in pursuing a claim is to restore one’s reputation and name and not to seek damages. This procedure will assist such plaintiffs. However, cold water has already been poured on this provision by a leading plaintiff senior counsel, apparently in the belief that in pursuing a defamation action one should seek damages.
None of these changes is revolutionary. The fair and reasonable defence has been applied here in its non-statutory form, and similar provisions in England and Wales have not led to a surfeit of claims being lost. These modest changes should lead to more efficient, sensible procedures in the interests of the parties and smoother administration of justice.
Andrew O’Rorke is chairman of Hayes solicitors, legal advisers to The Irish Times