The Value of a Good Name

The Department of Justice has published its report on a review of defamation law in Ireland. The report outlines a number of proposed amendments to the law. Defamation law in Ireland is widely considered to be more restrictive than in other European jurisdictions. The Irish constitution protects both freedom of expression and an individual’s right to their good name, though neither right is absolute. It is the responsibility of the government to find the appropriate balance between these two rights in drafting legislation regarding defamation.

In this day and digital age

Defamation law is currently a hot topic with a number of high-profile politicians involved in defamation suits in Ireland, as well as cases involving celebrities attracting enormous media attention. One reason why the government considers an amendment to defamation law to be necessary is that since the 2009 Act became law, internet usage and therefore, the potential for online libelous comment has grown rapidly. The internet allows defamatory statements to be made behind a cloak of anonymity, posing difficulties in identifying the appropriate defendant and jurisdiction. The proposed reforms include:

• A statutory power allowing both the Circuit Court and the High Court to order an online publisher to disclose the identity of an anonymous poster of defamatory material (known as a Norwich Pharmacal Order)

• Measures to implement a streamlined and simplified Notice of Complaint process, allowing a complainant to swiftly notify an online publisher of potentially defamatory material and request its removal, and

• In return, website operators may avail of a defence of “innocent publication” for defamatory content posted on their website, provided that they expeditiously remove such defamatory content and/or identify the author if ordered to

How much is too much?

A primary aim of the government’s proposals is to reduce the amounts of damages awarded to some plaintiffs. Following the recent success in reducing the court-ordered awards for victims of personal injuries, a key proposed reform is to abolish the use of juries in High Court defamation cases and replace them with a single judge. It is considered by many that juries are more prone to awarding excessive monetary damages in defamation cases and that, following the recent decision in Higgins v. Irish Aviation [2017] IESCDET 17 where a series of monetary guidelines for damages were set out, judges are better placed to assess damages.

This is undoubtedly the most radical and controversial of the proposals, resulting in much media comment and disquiet in the legal profession. One former High Court judge has suggested that twelve members of the public are better placed to apply their broader life experience in the assessment of fact and damage to a reputation than a single judge. Others have argued that judges themselves are often equally unpredictable in the damages they award for matters as intangible as defamation, with some being more generous than others and therefore leading to an inconsistency and unfairness towards litigants.

What else is proposed?

The proposals also include:

• Measures to promote alternative dispute resolution and keep more cases from going to court
• Strengthening the defences available to media outlets who publish material they believe to be in the public interest
• Amendments to the tests required for a court to issue orders prohibiting further publication, declaring a statement to be defamatory, a correction order or an order for summary relief
• Introducing a mechanism to prevent strategic lawsuits against public participation (“SLAPPS”), the issue of proceedings to stifle or intimidate journalists and lay litigants

Too good to be true

It is often said that in defamation proceedings, it is the plaintiff who is really on trial. This is because the most common defence to defamation, that the statement itself was true, is like truth itself - both simple and complex. Defamation law seeks to give clarity to a grey area.

These proposals will not please everyone in the public, the media or the legal profession and some aspects will be particularly contentious. However, they offer a good basis for reframing Irish defamation law in the modern digital age in order to provide a balance for competing individual rights.

For more information on the potential impact of the proposed amendments to the law, contact a member of our Dispute Resolution team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.