Speaking at a symposium on the reform of Ireland’s defamation laws in the Royal Irish Academy on Dawson Street, Dublin the minister said: “Defamation law in Ireland essentially seeks to balance three different rights which are protected under both our Constitution and the European Convention on Human Rights – the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice.
Value of truth in public comment
“We might perhaps add a value: that of promoting the importance of truth in public comment and debate, as far as that is reasonably possible, while also recognising and remembering the vital role in a democracy played by an independent media,” he said.
“I expect the defamation review to be completed shortly, with options for reform presented before end of March 2020,” he said.
The event, chaired by Orla O'Donnell of RTÉ, heard from media, academics, the legal profession, social media companies, NGOs and relevant state bodies, considering four thematic issues arising from a public consultation on how the Defamation Act 2009 might be amended.
The key reform themes are:
- avoiding the ‘chilling’ effects of high/unpredictable awards and legal costs on public interest media reporting,
- the effective and proportionate protection against unfair damage to a person’s good name,
- developing the use of alternative dispute resolution processes and solutions, and avoiding defamation as a ‘rich man’s law’,
- Tackling effectively the new and specific problems raised by online defamation.
Dr Andrew Scott of the London School of Economics said there have always been problems in the law of libel.
The media provides a “reviewable, revisable, amendable” first draft of history, he said. And media should be free to do that and to correct mistakes as they occur, while striving for accuracy.
A defamation claimant doesn’t have to prove that what is written is false or that they have suffered any harm but can still get swingeing damages, he pointed out.
This is the chilling effect of libel laws on free speech.
Libel law has been subject to piecemeal revisions allied with occasional tectonic shifts.
But tinkering at the fringes misses opportunities to profoundly reshape libel laws in a modern communicative context, he said.
Both freedom of speech and accuracy of reputations are a matter of public interest because there are personal and social interests on both sides of the debate. There must be proper accommodation between privacy and reputation.
Head of legal at RTÉ Paula Mullooly said that on her watch, genuine libel claimants are dealt with speedily and there is no desire to skew the law on the side of media organisations.
Media organisations are now pulling punches and not pursuing legitimate stories where there is a real and genuine public interest, Mullooly warned.
It requires very deep pockets to pursue a story where one is likely to be sued and very few media organisations have the ability to go down this road, she said.
No media lawyer would dispute that there is a chilling effect from libel laws, Paula Mullooly said.
Dr Scott said that in Britain, from the year 2000, the media became very concerned about actions from claimants who didn’t have to pay lawyers if they lost a case but could transfer costs to the unsuccessful defending media company if they won.
This was “a gun to the head” he said, as to whether a media company could carry these risks.
Invariably, cases were settled early and quickly with substantial costs in damages.
Media companies have suggested that alternative methods of dispute resolution for matters of alleged libel should be encouraged.
Dr Scott said that the failure to provide a means to quickly correct inaccurate commentary is doing a disservice to the public.
Dr Scott served on the advisory boards of the recent studies on defamation undertaken by the Law Commissions of Scotland and Ontario, and authored both the 2016 report on Defamation for the Northern Ireland Executive and the consultation on defamation published by the Northern Ireland Law Commission.
He said the right to fair comment under the law should be the reporter’s friend but in practice has not proven to be so.
“Journalism is there to inform us and good journalism can effect social and political change,” he said but there is a lot of emphasis on the distinction to be drawn between statements of fact and expressions of opinion.
He said court time is often spent on resolving what are in essence ‘playground disputes’.
He said the Circuit Court is often a suitable forum for those looking for internet ‘take-downs’, because of the judge can either decide to grant an injunction or, if the journalist defends the content, to refer it onwards.
Minister Flanagan said that institutions such as the Press Council were working well in Ireland and are widely respected.
He said that Individual right to privacy has been transformed since the 2009 Act with the rapid expansion of big data and social media platforms.
While the issues of concern have changed, there nevertheless remains a pressing demand for review of the legislation, the minister said.
Some concerns can be addressed by clarifying the wording of the act after examining the legislative intent.
“We need to calibrate a complex balance between different rights,” the minister said.
The right to freedom of expression must be balanced with the right to a good name or reputation and also with the right of access to justice.
“There is a further value of promoting the importance of truth and accuracy in publishing comment and debate, insofar as this is possible,” he said.
The minister said that personal reputations deserve protection against unfair damage caused by careless or reckless malicious content.
The minister said that his department has done considerable work on defamation law but the review has taken longer than he would have wished.
Almost a third of all new legislation comes from the desk of the Minister for Justice, he pointed out.
Other speakers at the symposium were Dr Tarlach McGonagle of Leiden University and Dr Neville Cox of Trinity College Dublin as well as Press Ombudsman Peter Feeney.
Peter Feeney said that many media problems can be dealt with quickly and informally by the Press Council and this benefits both the media and the public.
He said that lawyers can often make problems much more lengthy, expensive and complicated.
“If you want money, go to the courts.
If you don’t want money then why get involved in a process that takes years, carries a huge risk and is a real threa to the future of the press in Ireland, Feeney asked.
A lot of people aren’t thinking about money, they are thinking about a correction of the record, he said.
“Of course, newspapers make mistakes. Correct it and move on,” he said.
Feeney said he would like judges to ask claimants why they dIdn’t go to the Press Council first with their issue.
He also said that solicitors should be required to brief their clients accordingly that there is an alternative, free dispute resolution Press Council process, as happens when family law cases are directed to mediation.
RTE's Paula Mullooly concurred that an offer of amends can be effective, and a speedy resolution process would be welcomed by the media, because it means a huge reduction in legal costs.
The legal costs are often more expensive than damages paid out, she said, which is not sustainable.