Yesterday’s Irish Times reminds me of an interesting High Court judgment handed down early in the Summer. It’s called Dennehy v Independent Star Ltd trading as The Irish Daily Star Newspaper  IEHC 458 (28 May 2009) and it concerns an attempt to bring a prosecution for criminal libel. Section 8 of the Defamation Act, 1961 (also here) provides
No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application.
When the Defamation Act, 2009 (pdf) comes into effect in the new year, section 4 will repeal the 1961 Act and section 35 will abolish the common law crime of criminal or defamatory libel (the UK is soon to follow this lead). So, the Dennehy is likely to be last Irish case concerning this ancient crime. But the case also looks to the future, as one of the arguments made on behalf of the applicants was founded upon the European Convention of Human Rights, and the reasons why that argument failed are quite striking.
The applicants were the brother and sister of a man who had been found dead in his apartment. The Garda Press Office reported that he had died from a single stab wound; and a man was eventually convicted of the murder. However, in the immediate aftermath of the death, the respondents had run lurid stories alleging that the deceased could have met his end in a bizarre sex game, and the applicants sought permission under section 8 to commence a prosecution for criminal libel against the respondents.
The principles underlying application for leave to commence a criminal libel action were set down in Goldsmith v Pressdram  3 WLR 191 (Wien J), Gallagher v Independent Newspapers (Unreported, High Court, 3 July 1978, Finlay P) and Hilliard v Penfield Enterprises  1 IR 138 (Gannon J), and summarized by Gilligan J in Dennehy:
- The applicant must establish that there is beyond argument a case to answer if the matter goes before a criminal court.
- The libel must be so serious that it is proper for the criminal law to be invoked.
- The judge should consider whether the public interest requires the institution of criminal proceedings.
Having considered the older authorities on which Goldsmith, Gallagher and Hilliard, Gilligan J held
-… For leave to be granted it is necessary to establish a prima facie case that the statements complained of are defamatory of living persons. … While I accept that the court enjoys a wide discretion in an application under s. 8, discretion is not a byword for arbitrariness: it must be exercised in accordance with the principles prescribed by law,… the article which defames the deceased must also, albeit by reason of the statements about him, defame his relatives or other living persons, that is to say it must expose them to hatred, contempt or ridicule, or tend to cause others to shun or avoid them, or tend to lower them in the estimation of right thinking members of society generally, if they are to succeed in a prosecution for criminal libel.
As a consequence, Gilligan J held that there was no evidence that the respondent intended to injure the applicants, and that in the circumstances the applicants had not been defamed. Accordingly, no prima facie case was made out and leave was refused. But the applicants advanced another intriguing argument, that the State had failed in its positive obligation to protect private life under Article 8 of the ECHR. They relied on von Hannover v Germany 59320/00, (2005) 40 EHRR 1,  ECHR 294 (24 June 2004) and Pfeifer v Austria 2556/03, (2009) 48 EHRR 8,  ECHR 935 (15 November 2007). The respondents, predictably, relied on free speech cases in reply, including Dalban v Romania 28114/95, (2001) 31 EHRR 39,  ECHR 74 (28 September 1999) (“journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation”) and Mahon v Post Publications  3 IR 338,  2 ILRM 1,  IESC 15 (29 March 2007) (“freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works”). On this interesting point, Gilligan J held:
The authorities relied upon by the applicant appear difficult to reconcile with the decision of the Supreme Court in Mahon. Even apart from that difficulty however, in the circumstances that arise in the present case the submissions advanced on behalf of the applicants on this point cannot assist them. This is because the court is bound to apply the law as it is. Section 2 of the [European Convention on Human Rights Act, 2003 (also here)] requires that statutory provisions and rules of law must be interpreted and applied “in so far as is possible, subject to the rules relating to such interpretation and application” in a manner consistent with the Convention. It is not possible, under the guise of interpretation, to construe the law in such a way as to bring about a departure from the clear requirements laid down in the authorities relevant to the determination of this application. Those authorities are clear in requiring that there should be some defamation of living persons, albeit by reason of statements concerning the deceased, to constitute a criminal libel. The court has already observed that the applicants’ claim cannot surmount this hurdle. The Convention cannot alter the interpretation of the law to an extent beyond that which is provided for in section 2.
As a consequence, the application was dismissed. I think that this is the right conclusion, but I’m not convinced by Gilligan J’s reasoning in this passage. In particular, the Convention has been used to recalibrate the common law in the context both of privacy and of libel, and Gilligan J’s reasoning would seem to undercut this kind of development. It remains to be see if it will prosper.