 It all began innocently enough: just before Christmas, Sunday Times journalist John Burns wrote a piece lamenting the shortcomings of blogging in Ireland. Leading bloggers naturally begged to differ. A month later, the spat was picked up by Trevor Butterworth writing on Forbes.com, who noted that “it’s hard to think of a free country more suited to blogging than Ireland”. By the same token, it’s at least as hard to think of a country more given to litigation; and the point was illustrated by a story retailed almost en passant in Butterworth’s piece:
As one journalist told me, Ireland’s media is currently abuzz over a “confidential” legal settlement against a blogger, who allegedly had to pay almost $140,000 in damages for a libelous post, seen by few, swiftly purged from the site, and readily apologized for.
This was intriguing. By the end of the week, John Burns in the Sunday Times had the full story:
A blogger has agreed a €100,000 settlement after libelling Niall Ó Donnchú, a senior civil servant, and his girlfriend Laura Barnes. It is the first time in Ireland that defamatory material on a blog has resulted in a pay-out. … In December 1, 2006, a blogger who styles himself as Ardmayle posted a comment about the couple … Following a legal complaint, he took down the blog and in February 2007 he posted an apology which had been supplied by Ó Donnchú’s and Barnes’ lawyer … However, the pair subsequently issued separate proceedings. It is understood that the €100,000 settlement was agreed shortly before the case was due before the High Court.
Indeed, there had been quite a detailed report at the time in the Sunday Independent; and in the last week, many blogs have pored over the story.
There’s nothing new in online defamation; the same basic legal principles apply online as they do offline; the medium may change, but the legal consequences of the message remain the same. But the story does raise some interesting legal issues. Mark Coughlan on TheStory.ie pointed out that, before the storm blew up this week, Ardmayle had been “little known, to say the least”, and he quite rightly queried the actual damage the blog had done to the plaintiff’s reputations. UCD law lecturer TJ McIntyre picked up that point:
The level of damages in defamation reflects the extent of publication – i.e. the extent to which the defamatory material was actually read. This is not (despite the best efforts of plaintiffs’ lawyers) the same as the extent to which it might have been read. Consequently (leaving aside other factors such as the gravity of the allegations) damages should be greatly reduced where the audience can be shown to be negligible. Potential readability worldwide notwithstanding.
For him, therefore, the case highlights the importance of keeping good server logs to counter the all-too-easy assumption that “availability online automatically equals a mass audience”.
Ireland’s libel laws have recently been overhauled by the Defamation Act, 2009, which came into force on 1 January this year. Section 31(4) provides that the court in a defamation action shall have regard to a range of factors in making an award of general damages, including:
(b) the means of publication of the defamatory statement including the enduring nature of those means,
(c) the extent to which the defamatory statement was circulated, … [and]
(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement …
These considerations tend to reinforce TJ’s point about the importance of keeping good server logs. It is hard to tell from the reports whether any of the Act’s defences might have availed the blogger, though the new defence of fair and reasonable publication on a matter of public interest, whilst hobbled, may have done.
The Act is a welcome, but incomplete, reform – incomplete not least because it takes little account of the increasing trend towards online communication. In particular, it does not attempt to achieve inter-operability between its restatement of the traditional defence of innocent publication and the defence provided to intermediary service providers by the implementation of the E-Commerce Directive.
Finally, there are questions of the compatibility of this kind of outcome with the free speech provisions of the Irish Constitution and of the European Convention on Human Rights. There are, in particular, emerging arguments that various European Courts have clearly moved to grant traditional press freedoms not only to traditional media but also to online actors such as bloggers engaged in “the creation of forums for public debate”. This might not have protected Ardmayle’s obscure blog, but if – contrary to the views John Burns expressed in the article at this beginning of this post – the Blog O’Sphere continues to develop as a vibrant forums for public debate, then future bloggers in Ardmayle’s shoes may be able to rely on the Constitution and the Convention. Until then, we will all have to tread softly.
Reposted from Index on Censorship.
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 Over sixty years ago, the Faculty of Laws at University College London established the Current Legal Problems lecture series and accompanying annual volume as a major reference point for a broad range of legal scholarship opinion, theory, methodology, and subject matter, with an emphasis upon contemporary developments of law. The lectures are held at the Faculty of Law, Bentham House, Endsleigh Gardens, London WC1 from 6-7pm; they are open to the public and free of charge. This week’s current legal issue is:
Spies Like Us? Frank Snepp and George Blake: Freedom of Speech and Restitutionary Remedies
“Espionage is a serious business” sang a moderately famous Irish pop singer of the 1980s. And so it is. It can be even more of a business when former spies seek to publish their memoirs, and things can get very serious indeed if they fail to seek the clearance of their former spymasters in advance. The decisions of the Supreme Court of the United States in Snepp v US 444 US 507 (1980) and of the House of Lords in AG v Blake [2001] 1 AC 268; [2000] UKHL 45 (27 July 2000) make a fascinating pair of cases in which former spies (unsuccessfully) argued that a restitutionary remedy against uncleared publication of their memoirs infringed their speech rights.
The paper will seek to do three things. First, it will present a thorough analysis of the stories behind the decisions. How the opinion for the Court in Snepp evolved is a fascinating tale in its own right; so too are many elements of the Blake saga, not least the question of where the Snepp-like remedy in that case actually came from. So, the paper will begin with these stories, tales and sagas.
Second, it will look at the legitimacy of the restitutionary remedies in the cases in their own terms, and to suggest in particular that whilst there may be some legitimacy to the remedy announced in Blake, there is none for that announced in Snepp. Working out quite why this was so will help to clarify two difficult areas in the law of restitution: how, if at all, the law of restitution can justify awarding restitutionary damages for breach of contract, and proprietary remedies generally.
Third, it will measure the remedies awarded in Blake and Snepp against applicable speech standards (the First Amendment to the US Constitution and Article 10 of the European Convention on Human Rights, respectively), and to suggest in particular that the speech analyses in both cases were sadly lacking. Working out quite why this was so will help to clarify a difficult area of free speech law: how, if at all, common law and equitable doctrines and remedies can be made subject to constitutional speech standards.
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Posted by Eoin in General
 Last week, Peter Sutherland gave a speech about the Irish university sector. It generated quite a lot of controversy at the time, and an edited version appears in yesterday’s Sunday Times. Unfortunately, the speech has rather overshadowed the occasion; this is a pity, since it was the launch of the Undergraduate Awards of Ireland and Northern Ireland 2010. This is the second year of the initiative; the IUA website has information about the last year’s winners as well as about this year’s competition. Submissions from undergraduates in the form of essays or projects can be entered into one of 26 categories. The first round is especially for final and penultimate year students together with part-time students who have secured at least 1/3 of credits necessary to graduate, and their deadline is 12 March 2010, so it’s approaching rather quickly. According to the criteria on the website, “your submission should represent the highest standard of intellectual and scholarly achievement in your chosen field … [and it] should embody a piece of independent and original work together with a clear identification of its aims and objectives”. So, no pressure then.
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 In today’s Irish Times (with added links):
The Defamation Act [2009] which came into effect this month, is a significant improvement on the old law, but serious problems remain … [It] modernises the law. It provides statutory support for the Press Council and it makes it easier both to take and to defend libel cases. For these reasons, as the Act came into effect earlier this month, Andrew O’Rorke quite rightly afforded it a very warm welcome … However, it ducks some important reforms and bungles others, while some of its most significant provisions raise constitutional problems.
For example, it fails to account for internet service providers (ISPs) or to rebalance the burden of proof from the defendant to the plaintiff. The centrepiece defence of fair and reasonable publication is unworkably narrow. Those issues, along with the ease with which companies can take defamation actions under the Act, might even prove unconstitutional. …
The Defamation Act 2009 is a hugely significant piece of legislation, which has gone a very long way towards restoring fairness and stability to a notorious area of the law. However, in some important respects, the Act raises as many questions as it has answered and its deserved welcome must therefore be a qualified one.
Bonus links: (i) a long-running high-profile defamation case in New Zealand has just settled; (ii) in honour of the recent snow falls, a cartoon about defaming a snowman.
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 As the Supreme Court of Canada adopts a species of the responsible journalism defence to libel claims, the case that embodied the best opportunity that Irish law has had so far to do the same has come to an end. In Hunter v Duckworth, Ó Caoimh J in the High Court ([2003] IEHC 81 (31 July 2003)) seemed to approve of the defence (at least in the view of Charlton J in a later case), but the Supreme Court ducked the question and returned the case to the High Court. However, the case has now been settled. According to the Irish Times:
An English barrister has apologised before the High Court to two members of the wrongly jailed Birmingham Six who had sued him for defamation over a pamphlet written by him which contained material meaning, the men alleged, they were “mass murderers”.
Sir Louis Blom-Cooper QC in an apology read by his counsel Douglas Clarke yesterday, said he “sincerely regrets certain unintended inferences” which have been drawn from the publication of the pamphlet in 1997.
He said “an unqualified apology for any suggestion of the guilt” of Hugh Callaghan and Gerry Hunter was “overdue”. “It is now made unequivocally,” the apology said.
Index on Censorship adds:
Barrister Louis Blom-Cooper has settled in a libel action brought against him by Birmingham six pair Hugh Callaghan and Gerry Hunter at the Dublin High Court. Hunter and Callaghan claimed that a 1997 pamphlet by Blom-Cooper, The Birmingham Six and Other Cases, had implied that they could be guilty of carryimg out the 1974 Birmingham pub bombings, in which 21 people were killed.
Blom-Cooper has apologised for any “unintended suggestion” of guilt. Other elements of the settlement cannot be revealed.
Ireland has one of the most expensive libel jurisdictions in Europe.
So ended the first case to make a strong argument about the impact of the constitution on Irish libel law. I sincerely hope it won’t be the last.
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 Today’s Irish Times carries two interesting interlinked reports. The first is about yesterday’s Press Council seminar in Cork, the second is about TV3’s exposure of Brian Lenihan’s illness, which – unsurprisingly – was one of the issues discussed at the seminar.
First, yesterday’s seminar in Cork:
Freedom would mean less without a free media, entrepreneur Ben Dunne told a seminar organised in Cork yesterday by the Press Council of Ireland. … He condemned the broadcast of the Brian Lenihan story on TV3 on December 26th, saying that it “crossed a line it did not need to cross”. However, he added that TV3 was not the only offender in relation to breaches of privacy.
Another speaker, Data Protection Commissioner Billy Hawkes, told the seminar that the phenomenal development of the internet posed challenges to traditional ideas of privacy and data protection. …
Tightening privacy laws is a recipe for “non-accountability, secrecy and duplicity”, the seminar was told by Paul Drury, managing editor of the Irish Daily Mail, who added that he was wary of any proposal to legislate for heightened privacy.
Paul Drury will be very well aware that TV3’s revelations of Brian Lenihan’s illness could make privacy legislation more likely, even though the Minister himself seems remarkably phlegmatic about it:
Lenihan says he was rushed into telling children about cancer
Minister for Finance Brian Lenihan has told a local newspaper [the Community Voice newspaper in Blanchardstown] he was rushed into telling his children about his cancer diagnosis on St Stephen’s Day because TV3 had decided to run the story. …
Mr Lenihan said while he did not see what public interest was served between St Stephen’s Day and the new year by TV3 broadcasting the story, he did not intend to lose sleep over it.
Update: Three quick comments. First, thanks, Damien, in the comments below, for pointing me towards the Examiner report on the seminar Dunne slates TV3 for lack of fairness. Second, I couldn’t agree more with Noreen’s comment below that ” the notion that there is supposed to be some kind of journalistic obligation to keep politicians’ secrets is deeply unsettling. It’s in the nature of the media to report the news about public officials. If you’re a journalist, it’s called doing your job”. And, third, there is more about Brian Lenihan’s interview with the Community Voice in a story in today’s Irish Independent.
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From today’s Irish Times:
The Press Council is hosting a seminar on the relationship between the press, the internet and privacy at Jury’s Western Hotel in Cork on Friday.
Data Protection Commissioner Billy Hawkes, businessman Ben Dunne and Irish Daily Mirror editor John Kierans are among the speakers at the seminar, which hopes to generate an exchange of views between members of the media and the public.
The seminar, which is free and open to the public, begins at 2pm.
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