the Irish for rights

Defamation and the Constitution

Coat of Arms, Ireland (the image on the cover of the Constitution) via Wikipedia“Predictions are difficult, especially about the future.” I have seen this variously attributed to Neils Bohr, Sam Goldwyn, and Yogi Berra. Whoever said it, it contains a grain of truth: when it comes to the future, all we can do is speculate. In my paper for last Saturday’s conference on Recent developments in Irish Defamation Law, I speculated on the prospect that the Defamation Act, 2009 (pdf) may be unconstitutional or incompatible with the ECHR in some important respects.

In Steel and Morris v UK 68416/01, (2005) 41 EHRR 22, [2005] ECHR 103 (15 February 2005) (the infamous McLibel case) the ECHR held that the applicants’ rights under the Convention had been infringed by the failure to allow them legal aid, in an inflexible presumption of falisty (affirmed here), and in the rule that a body corporate taking a defamation action need not prove special damage, in all three cases because these rules compounded the significant imbalance which they faced in defending a defamation action being taken against them by a multinational corporation (McDonald’s).

In Ireland, defamation is absolutely excluded from the legal aid regime by section 29(8)(a)(i) of the Civil Legal Aid Act, 1995 (also here), and the 2009 Act does not ameliorate this in any way; but since there is no constitutional right to civil legal aid at Irish law, if it is invalid, the remedy is a declaration of incompatibility with the ECHR under section 5 of the European Convention on Human Rights Act, 2003 (also here). The presumption of falisty could, by virtue of the interpretative obligation under section 2 of the ECHR Act, 2003 (also here), be removed by a literal interpreation of sections 2 and 6(1) of the 2009 Act. And the rule in section 12 that a body corporate can sue without proof of special damage could be reversed by a finding of unconstitutionality or a declaration of incompatibility.

Certain provisions of the Act relating to defences are also questionable. For example, section 15(1) provides for the abolition of pre-Act defences, but it fails to provide for a saver for any defences which may have been generated by the Constitution or the Convention, such as the emergent defence of responsible publication in the public interest. Again, section 20(1) provides for a defence of honest opinion, renaming and replacing the defence of fair comment. The plea in Hunter v Duckworth [2003] IEHC 81 (31 July 2003), dodged by the Supreme Court, was that the common law was defective having regard to the constitutional protections of the “right to express freely … convictions and opinions”. If the impact of the constitution in this area is determined at a later stage in Hunter, then section 20(1) will have to be measured against it. And the puny new defence of fair and reasonable publication in section 26, is likely to be overpowered by the development – driven by the Constitution and the Convention – of a public interest defence and new species of qualified privilege.

Of course, these are only prospects, even if they are open on the text of the Act as it stands. But they are still worthy of consideration, and they demonstrate that the Act raises as many questions as it has answered.

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6 Responses to “Defamation and the Constitution”

  1. […] This post was mentioned on Twitter by HRinI, Eoin O'Dell. Eoin O'Dell said: http://tinyurl.com/yk4lpnu My new blogpost: Defamation and the Constitution […]

  2. Ronan says:

    Eoin – Conference was very good.

    See here: http://www.scotcourts.gov.uk/opinions/2009CSOH151.html

    Scottish case on legal aid in defamation actions.

    The directions, which are in very similar terms to the guidance applying in England in Wales (see paragraphs 14 and 15 of the Lord Chancellor’s Guidance on Exceptional Funding), expressly require a “degree of exceptionality” the same as, or approximately the same as, the facts found in Steel & Morris v UK. In practice such a requirement may be, as Lord Wheatley recognised, “almost insurmountable.”

    I see Dennehy was mentioned in the Times today, re. Hilliard v Penfield Enterprises, which I think was mentioned during your session in re. Criminal Libel.



  3. Eoin says:

    Hi Ronan,

    Glad you enjoyed the conference. Your red sweater was a bit loud to behold early on a Saturday morning.

    Thanks for the link to the Scottish position; it will go into the footnotes of the next draft.

    As for Dennehy, the discussion on Saturday reminded me to blog it, and the serendipitous mention in the Irish Times gave me an excuse. So there’s now a post on it.

    If/when you get the chance to read the paper more fully, all comments will be gratefully appreciated.

    All the best,


  4. […] So, how did 2009 fare as a year for the incorporation of international human rights treaties in Ireland? Not particularly well, I’m afraid. First of all it is worth noting that the legislative agenda was overwhelmingly financial between budget adjustments and the establishment of NAMA there was relatively little time left for others items. On top of that, the agenda was of course dominated for quite some time by the Lisbon Treaty Referendum and by the expenses scandal. Legislative time for other matters was, therefore, relatively straightened. Within that straightened time a number of pieces of legislation were passed which have caused considerable concern from a rights-protection perspective with limited discussion of the importance (not to mention incorporation) of international human rights law. In particular, criminal justice legislation was passed that is thought to endanger fundamental principles of fair trial—the Criminal Justice (Surveillance) Act 2009 and the Criminal Justice (Miscellaneous Provisions) Act 2009, about which Liz blogged here. Furthermore a new Defamation Act 2009 was passed, which has raised serious rights-based concerns particularly around the criminalisation of blasphemy. As reported by Eoin O’Dell here, the Act will commence on 1 January 2010. Colin blogged about the Act here; Rossa McMahon reflected on the under-discussed provision allowing a company to sue for defamation here as did Eoin O’Dell here. Eoin also considered the constitutionality of the Act in this post. […]

  5. […] section 15, all previous defences to defamation actions are abolished (note it has been suggested by Eoin o’Dell of Cearta.ie that this might be inconsistent with the Constitution and the […]

  6. Interesting facts. Does anyone has the link to the full paper? I am sure it will be a good learning material.

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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