The Defamation Bill and the art of fugue (though not fudge)

JS Bach via jsbach.orgYesterday, 21 March, was not only the Vernal or Spring Equinox, but also the anniversary of the birth, in 1685, of JS Bach (pictured left; see | wikipedia | – composer of the Art of Fugue. It was also the day on which – stop press – during yesterday’s resumed Seanad debate (html | pdf to follow | Irish Times report (sub req’d)) on the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) Minister McDowell denied that he is a “fascist”, and insisted that he is “a liberal and a republican politician”! Whatever about the newspaper comments which provoked these declarations, or even some of the language he himself used in reponse to an effete lefty pinko commentariat? (Senator Norris’s summary of the Minister’s various pronouncements), nevertheless, at least on the issue of defamation, Minister McDowell yesterday once again proved himself on the side of the angels, declining many opportunities to fudge important issues of principle in the Bill.

During the debate, the members of the red herring school of debating were out in force again, not only with a more-than-the-usual quota of gratuitous bashing of newspaper pieces thought uncomplimentary of various Senators, but also evidenced in rather more serious confusions, such as continually referring to apologies (dealt with in s22 of the Bill) when debating amendments to section s28 of the Bill on court-ordered correction orders. Though similar, apologies and corrections are not the same thing. An apology now is usually something a newspaper publishes in response to a demand from a plaintiff (and often after protracted negotiations about its text and location). Under s22, it will also be something the newspaper is encouraged to do in mitigation of damages, without admission of liability. But a correction order under s28 is a court order to vindicate the rights of a successful plaintiff in a defamation action. These distinctions were entirely lost in the debate, though its basic thrust – relating to the extent to which a court should be able to mandate the time manner and prominence of any correction it orders – was sound. Of course, in this regard, the tendency of newspapers to play fast and loose in the past with tiny or obscure printed apologies and clarifications was a relevant consideration; but the debate focussed too much on apologies (which had already been considered on two previous occasions: 28 February html | pdf; 6 March html | pdf), and referred very little to the actual context of court-ordered correction orders. The Minister’s amendment, clarifying the court’s power here, was carried, but, quite rightly, he declined to accept an amendment proposed by Senator Maurice Hayes (Ind) which would have watered them down.

The main business of the debate was a return to the question of damages. As discussed earlier on this blog, Senators Walsh and Norris had already objected to the power of the Supreme Court, proposed in s12 of the Bill, to substitute its own award of damages on appeal. Now they took aim at s29 of the Bill which provides

29(1) The parties in a defamation action may make submissions to the court in relation to the matter of damages.
(2) In a defamation action brought in the High Court, the judge shall give directions to the jury in relation to the matter of damages.
(3) In making an award of general damages in a defamation action, regard shall be had to all of the circumstances of the case.
(4) Without prejudice to the generality of subsection (3), the court in a defamation action shall, in making an award of general damages, have regard to—[11 iterated matters].

My main issue with this section is the notable absence of the extent to which reasonable care was exercised by the defendant in attempting to ascertain the truth of any allegation of fact prior to the publication in question from the list factors which may be taken into account by the High Court in the determination of damages in subsection (4). However, Senators Norris and Walsh, joined by Senator Cummins, objected to the mandatory or prescriptive nature of subsection (2) (“the judge shall give directions to the jury”). The Minister stoutly resisted this pressure, explaining that

… one of the policy considerations in respect of this legislation was to uphold the function of juries in awarding damages because strong pressure was exerted to take away that function from them. This was my starting point. On the other hand, juries should not be told they are on their own when it comes to damages but that they should be reasonable. … Directions given by a judge to a jury are not a usurpation of its function. They constitute a legal statement to the jury of the basis on which it is to proceed and this is what is meant by the term “directionsâ€? in this section. … Therefore, in this context, direction in respect of damages means the legal basis on which jurors are to proceed. This is important because jurors must be told they cannot go mad and cannot simply choose any old figure, thereby bankrupting the newspaper and teaching it a lesson. … Jurors cannot be so informed because a jury’s function is not to bankrupt a newspaper but to compensate the plaintiff. Jurors must have their function explained to them. … I am talking about general directions. The judge will be able to bring the jury’s mind to matters which will help members make a judgment which will not be overturned on appeal. …

We must have some basis on which a court can tell a jury not to go mad when it comes to damages and provide examples of cases where the Supreme Court ruled awards were excessive. Regarding compensatory damages, it would be helpful to many juries to know what would be the amount of damages awarded by the High Court to someone who lost an eye in a road traffic accident. They could then place it in the same scale and consider whether ten minutes of embarrassment in a supermarket was of the same order or less or more. We can bring rationality and predictability to the area by allowing a judge to give directions. Directions should be understood in this context and not in a context of being told ‘I direct you to award X thousand euro’?. Directions to a jury set out the legal principles on which members should address these issues. It is a fair concept to introduce into our law. It does not devalue the function of a jury to provide it with instances and state they are the general parameters within which it should decide the case.

Senator Walsh was mollifed, but Senator Norris, in his role of Defender of the English Language (already referred to in this blog on this debate), was having none of it:

I have been saying for a number of years that law should be written in accessible language. I may not be a lawyer and I may be economically illiterate but I have a nodding acquaintance with the English language. The term “give directions� means to give directions, and we cannot buck that. If I give somebody direction I direct them to do something. I believe the Tánaiste and those of us who take this view are remarkably close but I do not believe it would be any harm to alter the term to “may advise�. That places no restriction on the judge in making the ruling.

Extraordinarily, he pressed this matter to a vote, but his amendment was defeated 34-13. In the end, progress was reported, but the Committee will sit again (ie, there’s more to come in the Committee Stage in the Senate, not least the Press Council, which is likely to be fun, fun, fun, no doubt providing much scope for further red herrings and press-bashing), though one can’t help but think that had the debate about correction orders not ranged widely over all of the ills of the world (weaving patterns out and back, as the themes were imitiated in the successive voices in the debate, much like a fugue), rather more progress might have been reported.

To conclude, another bon mot from Senator Norris – public represenative, sometime academic and more-than-occasional journalist (so that, in this quote, he knows whereof he speaks):

Journalists are somewhat like academics. The latter are terribly precious about their own little areas; they have corns that would do justice to Mother McCree and no matter what one does, one is guaranteed to walk on them …