There will be politicians all too quick to dismiss the series of articles in The Irish Times this week urging reform of the Defamation Act as no more than newspaper/broadcaster "special pleading". And a number of public figures will be only too happy to see politicians sit on their hands and watch out the formal review of the Act currently underway – it has served some of them well, usually silently, in inhibiting comment and reporting that might encroach on them.
And yes, we have to hold up our hands, there is an element of special pleading. Libel awards and the out-of-court settlement industry that they are generating are threatening the economic viability of this State’s newspaper industry. Between 2010-2015, national newspapers, an internal survey has reported, had to spend some €27 million in legal costs to defend and settle defamation actions. They can ill-afford it.
Yet this is also about far more than special pleading. Fundamentally it is a human rights issue. In undermining the free press, the Act and the legal regime it upholds, with its astronomical damages awards that bear no relation to real pain and suffering – they are many multiples of the scale of court awards made for physical injuries – are undermining one of the key pillars of a democratic society. The detailed scrutiny and holding to account of the political and business world are only possible if a proper balance is struck in law between the protection of the right to a good name and the freedom of the press. In Ireland that line is drawn in a way that is more oppressive and onerous to the press than anywhere in Europe.
That is not so say we do not acknowledge the importance of protecting reputations from unfounded calumny.We too must be able to be held to account. We accept that we have a moral and legal "duty of care" to those we write about and our readers. That is why the industry welcomed the establishment of the Press Council, to provide, through enforcement of its code of conduct, a new cheap and speedy means of redress when the press, as it does too often, gets it wrong.
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And that is why we argue that any review of the Act must find a way of bringing unregulated social media under the same sort of disciplines, preferably voluntary, to police agreed community standards that society imposes on the press. That must be so in relation to social media and defamation, as much as to child porn, racism or trolling. We hope that the review of this Act, largely silent on the new digital world, can contribute to opening this important discussion.
The existing law is both bad and overcomplicated. It serves neither punter nor press and undermines our freedom. It is crucial that in reviewing it now, Minister for Justice Frances Fitzgerald goes beyond a technical examination of the Act's many deficiencies to ask fundamental and radical questions about its purpose and fitness.