The recent McLibel judgment in the European Court of Human Rights could have significant implications for current proposals to reform Irish defamation law, but they must not be overstated, writes Eoin O'Dell
In Monday's Irish Times, John Waters argued that last week's European Court of Human Rights decision in favour of the McLibel defendants could require significant changes to legal aid for parties to defamation cases as part of the current process of reform of Ireland's defamation laws.
Although that decision is likely to have important consequences for that process, Waters has overstated its potential impact on legal aid while largely missing its far more likely impact in other areas of defamation law.
The McLibel case arose because, in the mid-1980s, as part of a London Greenpeace anti-McDonald's campaign, Ms Helen Steel and Mr David Morris distributed a six-page leaflet entitled "What's wrong with McDonald's?"
In 1990, McDonald's sued them for libel, beginning the longest-running case in English legal history.
It eventually ended last week when the European Court of Human Rights held in the pair's favour.
Meanwhile, a week earlier, the Minister for Justice announced in the Seanad that he was close to bringing a Bill to Cabinet to implement many of the recommendations of the June 2003 Report of the Legal Advisory Group on Defamation.
It is true that some of these recommendations will now have to be revisited in the light of the European Court's McLibel decision, but perhaps not as John Waters envisaged. As Waters pointed out, the main element of the court's decision related to the denial of legal aid to the McLibel defendants in the English courts. The civil legal aid schemes in Ireland and the UK do not cover defamation cases, and the court held that the absence of legal aid for the defendants was a breach of the fair trial provisions of the European Convention on Human Rights.
However, the decision does not establish that there is an automatic right to legal aid in defamation cases. Indeed, the court in earlier cases had said there was not; and it did not change its position in this case.
Instead the court stressed that the massive imbalance between the parties, and the complexity of the case meant that the defendants did not have a reasonable opportunity to present their case.
Indeed, as Waters also pointed out, this reasoning would also seem to require legal aid for an individual plaintiff against a corporate defendant.
The current reform proposals do not address the issue of legal aid at all, but, in the light of this decision, the Minister will now be forced to consider the question of legal aid in complex cases with a massive imbalance between the parties - but only in such cases.
But this is as much as the judgment requires, and it is unlikely, therefore, to have much impact in the vast majority of defamation cases. Other aspects of the decision might have more impact on Irish law.
For example, although a plaintiff in a case must usually prove every element of his or her claim, in a defamation case once a plaintiff alleges that a statement published or uttered by the defendant is defamatory the law in effect presumes that the statement was false.
However, in last week's decision the court held that, although this presumption of falsity is not automatically in breach of the convention, nevertheless, in a complex case such as this, where the defendant already faces other significant imbalances, the extra burden imposed by this presumption of falsity can infringe the freedom of expression provisions of the convention.
The defamation group recommended no change to the presumption of falsity apart from requiring plaintiffs to swear affidavits verifying the particulars of their claims.
The National Newspapers of Ireland have long recommended, however, that the definition of defamation should require that the plaintiff prove that the defendant's statement was untrue. If adopted, this sensible suggestion would reverse the existing presumption of falsity, and abolish the rule which was called into question by the court.
The third aspect of the court's decision relates to the damages which McDonald's was awarded because some of the leaflet's allegations were held to be untrue. Ms Steel had been held liable for £36,000 and Mr Morris for £40,000, although McDonald's has not enforced these awards.
Under the convention, an award of damages for defamation must be reasonably proportional to the injury to reputation suffered.
In this case, the court held that the awards were very substantial when compared to the defendants' modest incomes, and that, since McDonald's had not established that the distribution of the leaflets had caused any financial loss, the award of damages was not proportionate to the injury suffered.
In response to earlier decisions in which English defamation damages were held to be too high, English law has changed, and defamation damages have fallen quite sharply.
Similar changes in Ireland, as recommended by the defamation group, may yet be compelled by a case currently before the court.
In 1997, after a long-running legal saga, Mr Proinsias De Rossa recovered damages for defamation of £300,000 from the Sunday Independent and the Supreme Court upheld that award.
Independent Newspapers has challenged the level of this award before the European Court of Human Rights.
Judgment is awaited. Whether or not the court's decision suggests that it is ready to hold against Ireland in the Independent Newspapers' appeal, it does make clear just how necessary the proposed reforms are, especially in the context of damages. The court's decision has important lessons for freedom of expression, though perhaps not those taken by Waters.
That decision is likely to have greater impact on the presumption of falsity and the level of damages than it is on the question of legal aid.
Nevertheless, it is to be hoped that the Department of Justice, in framing its long-awaited defamation reforms, will now learn those lessons, and, in Waters's words, lead to the decommissioning of the word "draconian" as a description of Ireland's defamation laws.
Dr Eoin O'Dell is a Fellow of Trinity College Dublin, and was a member of the Legal Advisory Group on Defamation