ANALYSIS:The Defamation Bill reconciles the protection of a person's good name with freedom of expression
IT IS almost 50 years since the 1961 Defamation Act came into force, and the media has changed almost out of recognition since then. The changes include the ubiquity of television, the penetration of British media into Ireland and the invention of new media (though this poses challenges not addressed in the new Bill ).
It has taken a long time for our defamation laws to catch up, but with the passage of the Defamation Bill 2009 a new framework has been established for dealing with complaints against media attacks on the
good name of an individual or a corporate body.
The new Bill would allow more speedy redress to plaintiffs, the option of a speedy apology, new forms of remedy including access to the Press Council, which receives statutory recognition, less complicated court procedures and new defences for a media organisation.
If a person feels their reputation has been unfairly attacked or they have otherwise been badly treated by a media organisation, they can now seek an apology from the organisation concerned and the organisation can publish it without being regarded as admitting liability.
Alternatively, a complaint about the way in which a media organisation has behaved, including a failure to uphold a person’s right to his or her good name, could be brought to the Press Council. Prof John Horgan was appointed as Press Ombudsman in August 2007 and the Press Council formally began work in January 2008.
If the offended person opts to sue for defamation, he or she would have to swear an affidavit verifying assertions of fact, which if false, would amount to the commission of an offence. The defendant organisation would also have to swear an affidavit verifying any assertions or allegations of facts upon which he relies. Both can then be cross-examined on their affidavits.
Defendants would in future be able to make lodgements in court without admission of liability, bringing defamation in line with other civil actions. This means that if a complainant wins a lesser sum in the action, he or she could be liable for costs.
One of the main proposed changes in the law is that defendants would have a new defence of fair and reasonable publication on a matter of public importance. This permits mistakes to be made if every reasonable effort was made to check all the facts, and if the matter is of genuine public importance.
Another significant change, highlighted recently in the Monica Leech case, is that a judge will be able to direct a jury on the question of damages. Up to this, a jury was given no guidance on damages, which led to a situation where the Supreme Court overturned an award of €250,000, which then went back to the High Court and the case was reheard. The new jury, which could not be told of the Supreme Court decision, trebled the damages.
A shorter statute of limitations of one year (reduced from six) would also apply to defamation cases, although in exceptional cases, it can be extended to two years.
The Bill also amends the law on blasphemy. It contains a definition that blasphemous matter is that which is intentionally “grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of adherents of that religion”, though it exempts that which has cultural or artistic merit.
The maximum penalty is a fine of €25,000, and imprisonment for the offence would be abolished.