The positive first step by Minister for Justice Helen McEntee to reform Ireland’s outdated and repressive defamation legislation, though welcome, is long overdue and remains just that: a welcome first step.
What matters now is that Ms McEntee, unlike her immediate predecessors in Justice, continues her advocacy for genuine reform and prevails on her political colleagues to ensure the recommendations translate quickly into law.
There is, after all, ample evidence that the political will to embrace such reform has been less than enthusiastic for many years, despite international criticism of our libel laws for their impact on freedom of expression, and astronomical awards to claimants by juries – sometimes far in excess of awards for catastrophic personal injuries.
Ms McEntee’s report to Cabinet recommending significant changes to our defamation laws followed a review of the 2009 Defamation Act, which should have been carried out in 2014.
Under our defamation laws, we have witnessed:
- How it has been frequently, and successfully, exploited by wealthy and powerful individuals and organisations to prevent the media from publishing public-interest material they did not want in the public domain;
- Juries (who do not sit in defamation trials in most other countries) award damages of €10 million for defamatory comments in a press release;
- Another award of €1.87million – subsequently reduced by the Supreme Court to €1.25 million – and later appealed to the European Court of Human Rights and found to be in breach of the European Convention on Human Rights, which provides a right to freedom of expression. However, the award still stood and was over nine times the maximum payment in a personal injuries case for the total loss of an eye;
- The emergence of defamation tourism from abroad because our laws are seen as a soft touch and offer a far greater chance of successful claims than other countries;
- A growth in "transient defamation" – where businesses are sued for comments made in the course of providing or refusing services, such as questioning in relation to suspected shoplifting.
NewsBrands Ireland, the representative body for Ireland’s national news publishers, has lobbied for many years for the reform of the most repressive and egregious aspects of the 2009 Act, highlighting the chilling effect it has on the media’s role as the public’s watchdog and its ability to reveal matters of important public interest.
Despite the existence of the press council, publishers report that many plaintiffs choose instead to pursue the legal route as very often the prevailing view is that there is nothing to lose as the likelihood is the publisher will invariably settle rather embarking on a lengthy, unpredictable, and expensive trial.
Many important stories have, of course, been exposed by Ireland’s media that otherwise would have remained secret since the 2009 Act came into law. But other serious and important matters of public interest have never been revealed because of the potentially devastating levels of risk to publishers. Even at the lower end of the scale, the huge legal costs in fighting any case, spurious as they might be, have meant that most media organisations have had to reluctantly agree to “pay out to make it go away”.
NewsBrands Ireland has always emphasised that good defamation policy is categorically not about giving journalists a free rein to write what they like. It is about setting the right balance in order to protect people’s reputations and the need to defend and promote freedom of expression and the media’s ability to freely report on matters in the public interest.
Many successful claimants in defamation cases prospered in their careers between the alleged libel and the trial
NewsBrands particularly welcomes the proposal to abolish juries from High Court defamation cases as well as the measures to allow the dismissal of strategic and abusive cases that are taken only to deter public interest discussion and investigative journalism
While there is no doubt a great deal of public awareness about the frequently absurd levels of damages awarded by juries in defamation cases, the extent to which powerful people and entities exploit that vulnerability for publishers, and use it to prevent publication, is less evident and more pernicious.
Thankfully, however, once in a while the public gets to see a classic example of what exploiting draconian defamation laws means in practice, and what Ms McEntee’s recommendations will hopefully soon consign to the past. It’s encapsulated in the form of former FAI chief executive John Delaney, who told his board he was keeping a defamation action going against a publisher even though it was a weak case, “so they don’t write anything about us”.
Unfortunately, there are many more corporate Delaneys who have successfully used their wealth and power to ensure that information that is in the public interest remains unheard. A multimillionaire or billionaire can afford to tie up a publisher in punitively expensive litigation for years, even threatening their very existence.
In that regard, Minister McEntee’s recommendation to introduce an “anti-Slapp” mechanism to prevent the strategic and abusive use of vexatious litigation by a powerful entity, is very welcome indeed.
A Slapp (Strategic Lawsuit Against Public Participation), is “a groundless or grossly exaggerated lawsuit . . . designed to censor, silence or intimidate critics by burdening them with deliberately high costs of legal defence”.
The recommendation to Government does not include a cap on libel damages, but the hope will be that the abolition of juries will mean the application of more proportionate awards.
However, the failure to recommend a general “serious harm” test – like that in the United Kingdom – is disappointing in the extreme. It will continue thus: somebody who claims their reputation has been damaged by a publication will not have to produce any evidence of the alleged damage.
As journalist Mick Clifford once described it, this is akin to a plaintiff appearing in a personal injuries case, wearing a large overcoat and alleging he has lost his left arm, but not being required to produce the stump.
Indeed, many successful claimants in defamation cases prospered in their careers between the alleged libel and the trial – yet they continued to claim their reputations had been greatly damaged. This is farcical and should not continue.
Colm O’Reilly is chief executive of the Business Post and chairman of NewsBrands Ireland, the representative body for Ireland’s national print and digital news publishers