Section 26(1) of the Defamation Bill, 2006 (as initiated) provides
A person who claims to be the subject of a statement that he or she alleges is defamatory may apply to the High Court for an order (in this Act referred to as a “declaratory order”) that the statement is false and defamatory of him or her.
It is intended as a remedy for those who simply want court recognition that they were defamed but who do not necessarily want a remedy in damages. An excellent example of how such an order might work is provided by a story by Frances Gibb in yesterday’s Times (with added links):
Sir Salman Rushdie wins apology from former bodyguard over libel
Salman Rushdie, the Booker prize-winning author, won apologies in the High Court yesterday over allegations that when living under police protection he was unhygienic, suicidal and sought to profit from the fatwa on him. … Yesterday, Mr Justice Teare made a Declaration of Falsity [under section 9 of the Defamation Act 1996] against Evans, his ghost writer Douglas Thompson and John Blake Publishing. Sir Salman, who did not seek damages, said after the hearing:
This has been an unattractive affair. My only interest was to establish the truth. I’m happy that the court has made its declaration of falsity and that the authors and publishers have recognised their falsehoods and apologised. As far as I am concerned that’s the end of the matter.
There are similar stories in the The Independent, on the BBC news website, and on theBookseller.com (update and by The Washington Post); and the outcome was welcomed by English PEN (update and also by the reporters committee for freedom of the press). It is an important example, which I hope will be followed by other plaintiffs. Index on Censorship quotes Geoffrey Robertson QC, who represented the author, as saying:
[Rushdie has] pioneered a new way of reconciling the right to free speech with the right to reputation … You nail the lie for all time with a court ordered declaration of falsity and you receive your legal costs, but you decline to chill free speech by putting authors and publishers to an expensive trial and making them pay heavy damages.
The section 26 declaration provided for in the Defamation Bill is considerably easier to utilise than the corresponding UK provision, so I sincerely hope that it will have the same effect and that many Irish plaintiffs will follow Rushdie’s example and rely upon it.
If there were more use of this and less use of conventional defamation actions, would there be more or less abuse of power by the media ? The answer is obviously the former.
And that is why the defamation laws should be tightened, not loosened, as you prefer.
I do not pretend that the current law does not merit some reform, of course.
I agree that the current law does merit reform, but I persist in what you see as the error of advocating this as one of the necessary reforms. In particular, I think that there are many checks on abuse of power by the media; conventional defamation actions are just one; and this will be another. Moreover, it will still have an impact on the bottom line, as the losing media outlet will have to pay costs, a matter with which Boards and shareholders will be very unhappy.
Eoin, I don’t see it as an error to advocate this as one of the necessary reforms, necessarily. I do think that your enthusiasm for it is overdone, and I am pretty certain that the media organisations are not worried by the potential legal costs involved.
My principal point is that the “elephant in the room” is really the huge increased influence of the media in our lives – power, in a word – and the failure of the present law to control the abuses of that power. The media have successfully created a narrative – the creation of such narratives, mostly with a tenuous link to reality, being their “thing” nowadays – that highlights instead a largely illusory threat to their freedom of expression.
(I had crafted a much more eloquent and cogent comment, which not only also solved the Budget crisis but generally put the world to rights in a most comprehensive manner. Yes, really ! Unfortunately, something happened to it on its way from the Captcha testpoint – I must have omitted a decimal point from the proof of Fermat’s that was demanded. I hope Captcha reacts to this more modest effort with a more feasible test – fingers crossed !)