Recent Developments in Irish Defamation Law – Including the Defamation Act, 2009
It will be on from 9:30am to 1:15pm on Saturday, 28 November 2009, in the Davis Theatre, Arts Building, Trinity College Dublin.
As regular readers of this blog will know, Irish Defamation law has undergone a number of radical changes in the last twelve months including, most notably, the changes which are to be wrought by the newly enacted Defamation Act, 2009 (pdf). These changes will significantly influence the way in which defamation cases are to be managed and may, potentially, represent a shift in the traditional balance between plaintiffs and defendants in defamation cases. The conference will consider the nature of such changes. Here’s the provisional programme:
09:00 Registration
09:30Paul O’Higgins, SCThe Defamation Act from the Plaintiff’s Perspective 09:55Eoin McCullough, SCThe Defamation Act from the Defendant’s Perspective 10:20Paula MulloolyThe Defamation Act from the Solicitor’s Perspective 10:45 Questions and Discussion
11:00 Tea/Coffee Break
11:15Brendan Kirwan BLInjunctive Relief and Remedies 11:40Ray Ryan BLKey Points of Practice and Procedure in Defamation 12:05Dr Eoin Carolan BLAlternative Causes of Action 12:30Dr Eoin O’DellThe Defamation Act: The Constitutional Dimension 12:55 Questions and Discussion
I promised in an earlier post that I would look again at Kevin Rafter’s recent report on Political Advertising: The Regulatory Position & the Public View (here), the research for which was funded under the Broadcasting Authority of Ireland’s Media Research Scheme.
In Ireland, political advertising is banned in the broadcast media, but there are no similar restrictions upon the non-broadcast media, such the press, billboards, and so on, though a system of party political broadcasts during election and referendum campaigns is intended to mitigate the harshness of the broadcast advertising ban.
This distinction between broadcast and print media is often justified by the particular power of the broadcast medium. However, a local ban takes little account of developments in broadcasting (cable, satellite and digital channels) and telecommunications (the internet, mobile devices), and radio and television have nothing like the reach and impact that they had even a generation ago.
The main justification for the broadcasting ban lies in the fear that signficant resources would unfairly distort the political marketplace in favour of larger parties and major candidates with deep pockets and against the interests of smaller parties and minor candidates lacking in similar resources. As Barrington J put it in the Supreme Court put it Murphy v IRTC [1999] 1 IR 26, the Oireachtas is entitled to consider that “in relation to matters of such sensitivity, rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals”. However, this concern is easy to overstate: as a reason for a restriction upon speech, it may justify regulations – even strict regulations – controlling political advertising, but it hardly supports an outright ban. It is unsurprising therefore that twocases in the European Court of Human Rights and another in the High Court of Australia have struck down such bans as incompatible with freedom of expression.
This is the background to Rafter’s report. He looks at political advertising regimes in many other jurisdictions, spaning a spectrum from the UK (whose regime is similar to ours in Ireland), through various intermediate positions in other European coutries (in increasing order of liberalisation: France, Germany, the Baltic states, the Scandanvian states) to the US (where, for free speech reasons, there is no regulation of political advertising, and only partial tolerance of campaign finance regulation). This is summarized in an interesting table (on p13) locating Ireland in a list of 29 countries.
Rafter then examines some of the controversial applications of the ban, including the banning of an advertisments by – an anti-abortion campaign group (a ban which the High Court upheld), the publishers of the autobiography of a controversial politician, a group promoting an anti-war concert, a national agency pressing for legislative change to benefit consumers, and a charity campaigning against gender inequality in third world. He concludes that the “implementation of the legislative ban on political advertising in Ireland has resulted in a lack of equality in the treatment of different groups” (p17 – query: does this raise constitutional equality concerns?). Moreover, comparing these examples with cases in which similar bans have been struck down, he confidently asserts “an increasing body of European Court case law … points to a fundamental problem with the blanket ban on political advertising in the context of the right to freedom of expression in Article 10 of the European Convention on Human Rights” (pp20-21). For what it’s worth, I entirely agree.
As part of the research, Rafter commissioned an opinion poll on the issue, and the results are a very important aspect of the Report. Almost half of respondents opposed changing the current regime; but there was a significant difference in attitude across age categories with younger people more strongly in favour of liberalisation; and people are more open to change if limitations on spending or on the broadcast period accompany any liberalisation. On the other hand, forty percent believed the status quo is an infringement on the freedom of expression of organisations covered by the ban; and there was strong support for the idea that the rules governing party political broadcasts should be determined by an independent body. This is a far from monolithic response, and demonstrates that the current inflexible regime is out of touch with public opinion.
For all of these reasons, Rafter proposes significant changes to the ban on political advertising (as well as to the party political broadcast system). His recommendations include:
Political parties and other groups should be given greater freedom to publicise their policies and agendas on television and radio. This change should be implemented in the context of providing non- political parties with access to political advertising opportunities while expanding the Party Political Broadcast system for registered political parties.
Broadcast advertising by interest groups other than political parties should be permitted outside election and referendum campaigns subject to defined rules …
The public will need reassurance that the system ensures those with access to resources do not disprortionately benefit under a new regime.
This should be done immediately, if not sooner; but I’m not going to hold my breath that this will happen any time soon. And the first Irish paid-for political advertisement is looking more remote by the day.
Morning in America (left) is the common name of a political adverisment used by Ronald Reagan in the 1984 US presidential election. Officially entitled Prouder, Stronger, Better, the optimistic tone of the advertisment made it one of the most effective political campaign advertisments ever made (and went hand in hand with another famous political advertisment critical of his opponent). It is an advertisment that comes to mind whenever I think about political advertising.
Following on from yesterday’s post, here are three quick updates on political advertising.
First, Kevin Rafter’s report for the BAI (here) has been picked up by the The Irish Film & Television Network. Second, there is a very good letter in today’s Irish Times on the issue:
Madam, – A proposal to alter the restrictions on political and religious advertising is long overdue (News, November 16th). The decision, some weeks ago, by RTÉ to ban a fundraising advertisement by the Shell to Sea campaign is an indication of the folly which underlies this ban. Defining what comes under the scope of a political campaign is a delicate but, ultimately, subjective judgement.
An oil company or car manufacturer advertising a “green” approach to business is a highly political act. But our current system views commercial interests as if they existed in a political vacuum.
The US system, where political advertising becomes a function of profits is, of course, wholly undesirable. But the current legislation creates an environment where advocates of the profit-first approach to building a society are given free rein over the airwaves while proponents of an alternative viewpoint are restricted.
Surely we can find a middle ground which accommodates legitimate commercial advertising, allows freedom of speech but doesn’t allow the airwaves to be taken over by political organisations. – Yours, etc,
EOIN MURRAY
Third, Rick Hasen has just posted an excellent discussion of US campaign finance/political advertising laws on SSRN:
… The potential for quid pro quo corruption of candidates appears to remain low, thanks to a series of laws imposing contribution limits. Sale of access to candidates, however, remains a feature of U.S. presidential elections even post-BCRA. From the standpoint of political equality, the transformation offers a mixed bag with somewhat offsetting effects. Thus, the collapse of the public financing system may have anti-egalitarian effects, but those effects are somewhat militated by the rise of micro-donors. The end of soft money and the rise of outside non-party political organizations in theory could lead to weakened political parties, but continued polarization of the electorate have kept parties thriving even under BCRA and the shifting constitutional ground rules of the U.S. Supreme Court.
Dr Kevin Rafter, Head of the Department of Film and Media, in the School of Creative Arts, at the Dun Laoghaire Institute of Art, Design and Technology has just written a fascinating report on Political Advertising: The regulatory Position and the Public View (here) for the Broadcasting Authority of Ireland (BAI). I’m glad to see this for at least two reasons.
First, it means that the BAI has hit the ground running. In October, the Minister announced five members of the Authority; according to section 13(7) of the Act, the quorum for meetings of the authority is five, so it has been operational since these five members were appointed by the Minister. However, the full membership is nine, and the other four members are being appointed by the Joint Oireachtas Committee on Communications, Energy and Natural Resources.
Second, the report has returned an important issue to public debate. The responses have been interesting. The BAI press release headline emphasised that the independent report confirms majority support for the retention of prohibitions on political advertising in Ireland, whilst the Irish Timesheadline emphasised that the report is a call to relax the ban on political ads for TV and radio, and RTÉ’s headline emphasises that the report points out that the ban on political adverts could be challenged. Writing in the Irish Times in advance of yesterday’s publication of the report, echoing MarshallMcLuhan in the headline, Rafter wrote:
… The restrictive nature of the political advertising regime in Ireland has led to ongoing controversy. … In an era of media convergence between the various strands of broadcasting – television, radio and the internet – it does seem timely to review the blanket ban on political advertising on television and radio. To do otherwise would be to be locked in a policy and technological time warp. …
The recommendations in the new study were formulated in the context of technological change, judicial development and public opinion. The objective should be to see managed policy change at a national level rather than waiting for the European Court to force a response or for internet developments to render the current regime obsolete. The recommendations envisage a revised regime in which there is greater similarity in the regulatory treatment of political advertising on different broadcast platforms and an acceptance that political advertising has a role to play in democratic discourse. …
This is a very welcome publication, and I will return to it in my next post. The BAI are to be commended for supporting the research that led to the report; and Rafter is to be commended for writing such a subtle, balanced and compelling assessment; now, to complete the trinity, let us up that the government can soon be commended for amending the legislation accordingly.
Judith Miller published a story which, among other things, named Valerie Plame as a CIA spy. In later grand jury proceedings, Miller declined to name her source, despite a decision of the DC Circuit Court of Appeals that she had to do so, and spent 85 days in prison for her troubles. In truth, both Plame and Miller were pawns in a bigger game being played by the White House, but a lawsuit by Plame against members of the Bush administration was dismissed. In the meantime, Plame wrote a memoir about the affair: Fair Game. My Life as a Spy, My Betrayal by the White House (cover left) (Amazon | Simon & Schuster) but she was prevented by the CIA from writing about various aspects of her employment with them. The US Court of Appeals for the Second Circuit held (pdf) yesterday that this restriction did not infringe her First Amendment right to free speech.
When she joined the CIA, she signed a standard form secrecy agreement in which she agreed never to disclose classified information which she obtained in the course of her employment, and to submit publications which could do so to the CIA for pre-publication review, and – in Wilson v CIA – the Second Circuit Court of Appeals upheld the CIA’s refused to allow her to disclose her dates of service and other information relating to her employment before 2002.
For the Second Circuit, it was settled law that a system of pre-publication clearance is not a prior restraint in the classic sense, and that when a government employee voluntarily assumes a duty of confidentiality, restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public, so that once a government employee signs an agreement not to disclose information properly classified pursuant to executive order, that employee simply has no first amendment right to publish such information.
This leading authority in favour of this position is Snepp v United States 444 US 507 (1980) (FindLaw | Justia | Oyez) (Frank Snepp’s site), which in many ways is similar to the decision of the House of Lords in Attorney General v Blake [2001] 1 AC 268, [2000] UKHL 45 (27 July 2000). In Snepp, the US Supreme Court upheld the validity of pre-clearance agreements relating to classified material and held that a former CIA employee breached not only such an agreement but also a fiduciary obligation when he published a book about CIA activities without submitting his manuscript for pre-publication review, and the proceeds of the publication were impressed with a constructive trust in favour of the Government. Plame did not put Snepp in issue, and merely sought to argue instead that the material which she wished to publish was no longer properly classified. These largely factual arguments failed; Raggi J for the Court held that the
plaintiffs’ disclosure of the information presently censored by the CIA … would facilitate the identification of particular intelligence sources and methods, thereby compromising the Agency’s ability to use such sources and methods in the future. … In sum, the CIA has advanced “good reason” to maintain any pre-2002 Agency service by Ms. Wilson as classified and to prevent the inclusion of such information in her memoir. …
Because we reject plaintiffs’ argument that no good reason supports the CIA’s maintenance of Ms. Wilson’s pre-2002 dates of Agency service as classified, and because we have already determined that this information has not been officially disclosed by the CIA, we necessarily conclude that plaintiffs’ First Amendment challenge to defendants’ redactions to Fair Game fails as a matter of law. Ms. Wilson – like every other current and former Agency employee who has signed a Secrecy Agreement – “simply has no first amendment right to publish” the information here at issue, regardless of how “public” her past activities appear to have become …
Update (2 March 2011): the book is now a major motion picture (as all the best Hollywood adverts say) starring Naomi Watts as Valerie Plame and Sean Penn as her husband, Joe Wilson. It was Wilson’s article in the New York Times, claiming that the Bush administration had manipulated intelligence about Saddam Hussein’s weapons programs to justify an invasion of Iraq, that was the reason why the White House leaked Plame’s identity as a CIA agent.
In the important decision of the House of Lords in Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359, [2006] UKHL 44 (11 October 2006) the House of Lords by a majority confirmed the traditional common law rule (see South Hetton Coal Company v North Eastern News Association Limited [1894] 1 QB 133) that a trading corporation was entitled to pursue a remedy in a defamation action without being required to allege or prove that the publication complained of had caused it actual damage; it is sufficient for a trading corporation to show that it is likely to be damaged in the way of business. Rossa McMahon has some strong words to say about the retention of the rule as a matter of Irish law by section 12 of the Defamation Act, 2009 (pdf), which provides
The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.
Among many excellent points, I think that Rossa’s most telling point is this:
While the ability of companies to sue for defamation was regarded as already established in the common law, the explicit provision that financial loss need not be established appears to heighten the risk of McLibel type actions in Ireland.
He concludes with a comment about the timescale for the publication and commencement of the Act. It was enacted on 23 July 2009; it was finally officially published (pdf) about three weeks ago (it seems it was in a long queue for translations into Irish of all of the Bills enacted at the end of that session); but it is not to be commenced for a while yet: the Department of Justice website currently provides
The Act is expected to be commenced in January 2010 following the making of the relevant Rules of Court (an announcement will be made in due course).
We have waited for a long time for the Act, if not from the publication of the Law Reform Commission’s Consultation Paper and Report on the issue in 1991, then at least since the publication of the Report of the Legal Advisory Group on Defamation in 2003. It took more than six years for the Bill in that Report to lead to the 2009 Act; waiting more than six months for that Act to come into force hardly seems too much longer to wait.
Finally, and a little more seriously, the print edition – but not, so far as I can see, the online edition (though it may in time be published in the archives of the Education section or, perhaps, of the Technology sections) – has a really interesting piece on distance learning at third level, discussing the Open University and Hibernia College. Online education poses both challenges and opportunities for bricks and mortar universities, and they will have to be faced and embraced if universities are to survive and thrive.
The moral of the stories is, of course, that if the undergraduates who now outnumber farmers can’t tear themselves away from their email and social networking sites, they might decide to eschew traditional universities and study online instead!
I wrote last April and again last July about the case brought by film-maker Neville Presho, whose holiday home on Tory Island had disappeared in his absence, replaced by a car park for an adjacent hotel. In July, Murphy J held that Mr Presho was entitled to a comparable dwelling on the island or its market value. The matter was adjourned to last week when the judge heard there were significant differences between the sides over what valuation could be put on an equivalent house in Tory. Today, in the High Court, Murphy J awarded Mr Presho €46,000 as damages for trespass and interference with his property (RTÉ news | Irish Times breaking news. UpdateIrish Examiner | Irish Independent | Irish Times). At an earlier stage in the proceedings, Murphy J had suggested that these damages could be calculated to prevent the defendant’s unjust enrichment, but there is no hint of this in today’s press reports. In the absence of written judgments in this saga, this will probably have to count as another colourful but missed opportunity in the development of the Irish law of restitution for unjust enrichment.
Next week, the School of Law, Trinity College Dublin, will host a conference on 
