Justice Minister Helen McEntee’s positive first step to reform Ireland’s outdated and repressive defamation laws, while welcome, is long overdue and remains just that: a welcome first step.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 real reform and prevails over her political colleagues to ensure that the recommendations are quickly translated into law.
There is, after all, ample evidence that the political will to enact such reform has been less than enthusiastic for many years, despite international criticism of our defamation laws for their impact on freedom of expression, and the astronomical awards given to plaintiffs by juries – sometimes far beyond catastrophic bodily injury awards.
Ms McEntee’s report to Cabinet recommending significant changes to our defamation laws follows a 2009 defamation law review, which should have been carried out in 2014.
Under our defamation laws, we have witnessed:
- How it was frequently, and successfully, exploited by wealthy and powerful individuals and organizations to prevent the media from publishing public interest material they did not want in the public domain;
- Juries (which do not sit in libel trials in most other countries) award damages of €10 million for defamatory statements in a press release;
- Another compensation of 1.87 million euros – later reduced by the Supreme Court to 1.25 million euros – and later appealed to the European Court of Human Rights and found to be contrary to the Convention European Union of Human Rights, which provides for a right to freedom of expression. However, the award was still valid and amounted to more than nine times the maximum payment in a personal injury case for the total loss of one eye;
- The emergence of libel tourism from abroad because our laws are considered soft and offer a much greater chance of success than other countries;
- A growth in “passing defamation” – where companies are sued for comments made in the course of providing or withholding services, such as questioning about alleged shoplifting.
NewsBrands Ireland, the representative body of Ireland’s national news publishers, has lobbied for many years for reform of the most repressive and egregious aspects of the 2009 Act, pointing to the chilling effect it a on the media’s role as a public watchdog and its ability to reveal matters of significant public interest.
Despite the existence of the press council, publishers report that many complainants choose to go the legal route instead, as very often the prevailing opinion is that there is nothing to lose as it is likely that the publisher will invariably settle rather than embark on a long, unpredictable, and expensive trial.
Many important stories have, of course, come to light through the Irish media which would otherwise have remained secret since the 2009 Act came into force. But other serious and important matters of public interest have never revealed due to potentially devastating levels of risk to publishers. Even at the bottom rung, the huge legal costs of fighting any case, no matter how spurious, meant that most media outlets had to begrudgingly agree to ‘pay for it to go away’.
NewsBrands Ireland has always insisted that good defamation policy is categorically not about giving journalists the freedom to write what they like. It is about striking the right balance to protect people’s reputations and the need to defend and promote freedom of expression and the media’s ability to report freely on matters of public interest.
Many successful plaintiffs in defamation cases have thrived in their careers between alleged defamation and trial
NewsBrands particularly welcomes the proposal to abolish juries in High Court libel cases as well as the measures allowing the dismissal of strategic and abusive cases which are only taken to deter public interest discussion and investigative journalism.
While the public is undoubtedly keenly aware of the often absurd levels of damages awarded by juries in defamation cases, the extent to which powerful individuals and entities exploit this vulnerability for publishers and use it to prevent publication is less obvious and more pernicious.
Fortunately, however, every once in a while the public can see a classic example of what the exploitation of draconian defamation laws means in practice, and what Ms McEntee’s recommendations will hopefully soon make a thing of the past. . It is summed up in the form of former FAI chief executive John Delaney, who told his board that he was pursuing a libel action against a publisher even though it was a case weak, “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 ignored. A multi-millionaire or billionaire can afford to engage a publisher in costly punitive litigation for years, even threatening its very existence.
In this 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 most welcome.
A Slapp (Strategic Lawsuit Against Public Participation) is “a baseless or grossly exaggerated lawsuit. . . aimed at censoring, silencing or intimidating critics by imposing deliberately high defense costs on them”.
The recommendation to the government does not include a cap on libel damages, but the hope will be that abolishing juries will mean applying more proportionate rewards.
However, the failure to recommend a general “serious harm” test – such as the UK’s – is hugely disappointing. It will continue as follows: a person who claims that his reputation has been damaged by a publication will not have to produce proof of the alleged damage.
As journalist Mick Clifford once described it, it is akin to a plaintiff appearing in a personal injury case, wearing a large overcoat and alleging that he has lost his left arm, but is not required to produce the stump.
Indeed, many successful plaintiffs in defamation cases thrived in their careers between alleged defamation and trial – yet they continued to claim that their reputations had been badly damaged. It’s crazy and it shouldn’t continue.
Colm O’ Reilly is Managing Director of the Business Post and Chairman of NewsBrands Ireland, the representative body of Ireland’s national print and digital news publishers.