Defamation – cearta.ie

Discussing themes in the law of Tort in (2007) 81 Australian Law Journal 609, 615 (via StuDoc), Mr Justice David Ipp (pictured left), then a judge of the Supreme Court of Western Australia and later a judge of the Court of Appeal of New South Wales, described the law of defamation as “the Galapagos Islands Division of the law of torts”:

The tort of defamation has evolved all on its own and has created legal forms and practices unknown anywhere else. It has evolved its own dialect and adopted esoteric customs. It thrives, for example, on distinctions between inferences upon inferences, on the one hand, and inferences upon implications on the other, and between contextual and common or garden imputations. Defamation law is devoted to jury decisions even though this devotion causes delay and additional costs and the role of the jury keeps changing. Pleadings in defamation actions are as complex, as pedantic and as technical as anything known to Dickens. Interlocutory disputes continue to beset plaintiffs and there are often massive delays in getting defamation cases to trial. Damages seem out of proportion to damages awards in other categories of cases.

The words are certainly true of Ireland now, even if they may have been “hyperbole” which gave “insufficient credit to the landmark uniform defamation laws” then recently enacted in Australia (Hemming (2009) 11 University of Notre Dame Australia Law Review 84 (pdf).…

Striking the balance of the constitutional protections of free speech and good name in Irish defamation cases

14 September, 202015 September, 2020

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| Defamation, Freedom of Expression, Freedom of Expression

1. Balancing competing rights
Irish defamation cases are increasingly replete with comments stating the need to balance the constitutional right to freedom of expression with the constitutional right to a good name. Article 40.6.1(i) of the Constitution protects “right of the citizens to express freely their convictions and opinions”; whilst Article 40.3.2 provides that the “State shall … by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the … good name … of every citizen”. Recent cases citing these rights together include Watson v Campos [2016] IEHC 18 (14 January 2016) [28] (Barrett J); Rooney v Shell E&P Ireland [2017] IEHC 63 (20 January 2017) [31]-[32] (Ní Raifeartaigh J); Ryanair v Channel 4 Television [2017] IEHC 651 (05 October 2017) [49]-[52] (Meenan J).

The language of balancing of competing constitutional rights is longstanding and widespread, in Ireland and elsewhere; and it is deployed in these cases to foreclose an a priori outcome where one right is automatically favoured over the other. Irish constitutional law does indeed subscribe to a hierarchy of rights in some cases (see, eg, People (DPP) v Shaw [1982] IR 1, 63 (Kenny J)); but that is usually unprincipled and largely unworkable (see, eg, Attorney General v X [1992] 1 IR 1, [1992] IESC 1 (5 March 1992) [138]-[139] (McCarthy J), [184] (Egan J); Sunday Newspapers Ltd v Gilchrist and Rogers [2017] IESC 18 (23 March 2017) [36] (O’Donnell J) (Denham CJ, Clarke, MacMenamin and Dunne JJ concurring)); and it has not been deployed in defamation cases when freedom of expression competes with the right to a good name.…

Man wins ‘fleeting defamation’ case and is awarded €500 – should the law of defamation really concern itself with such a trifle?

12 December, 20194 March, 2020

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| 2016-17 Reform, Defamation

The latin maxim “de minimis non curat lex” is usually translated as “the law does not concern itself with trifles”, meaning the courts will not consider trifling matters. Christmas may be the time for trifles (like the Christmas trifle pictured left), but the Courts are not the place for them. I was reminded of the maxim today when I read the headline that a “Man wins ‘fleeting defamation’ case against Luas and is awarded €500“. The judge is reported (here and here) to have found that:

there was a “fleeting defamation” … but, “having regard to the fact it was almost immediately expunged”, he could not find any lasting damage to his reputation or good name. In the circumstances, he awarded nominal damages of €500 [plus costs] … There was a “momentary defamation” which was almost immediately corrected such that people in the vicinity could not have reasonably formed any lasting adverse opinion of the plaintiff, …

Given the trifling sum of nominal damages, the plaintiff is lucky to have received his costs. Even more so, in my view, is he lucky to have been successful at all. I don’t think that the law of defamation should be concerned with such trifles.…

Denis O’Brien’s case against the Sunday Business Post should never have reached the High Court – updated

3 March, 201915 March, 2019

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| Defamation

In today’s Sunday Business Post (as trailed on the front cover, here; element left), I have an OpEd (sub req’d) in which I argue that O’Brien’s case should never have reached the High Court, and that the Department of Justice needs to publish its review of the Defamation Act as soon as possible (you can download it below). It’s part of a bumper collection of articles on the case (spread here and here):

Emmet Oliver: A man named Sue. The eagerness with which Denis O’Brien has taken legal actions in recent years shows the urgent need for a comprehensive overhaul of Ireland’s libel laws.

Francesca Comyn: A refusal to wave the white flag. At its core, The Sunday Business Post’s victory over tycoon Denis O’Brien in the High Court was a broader win for journalism and the Irish media.

Susan O’Keeffe: Defamation ruling a victory for freedom of the press. Even when journalists are sure of their facts, they take a risk once they tangle with power, a risk worth taking because it’s important for journalism and democracy.

Eoin O’Dell: O’Brien’s case should never have reached the High Court. The Department of Justice needs to publish its review of the Defamation Act as soon as possible (you can download it below).…

It’s time to abolish juries in defamation cases

28 September, 201729 September, 2017

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| 2016-17 Reform, Defamation

Libel cases in England and Wales are “better off without juries”, according to Sir Mark Warby, the High Court judge with responsibility for the Media and Communications List of the Queen’s Bench Division. As reported yesterday in the Brief, the legal newsletter of The Times, he was speaking on Tuesday at the London conference of the Media Law Resource Centre, an American organisation. He said that he “does not regret the passing of the jury at all”, and he pointed out (pdf) that there are many advantages to the “virtual abolition” of juries in defamation cases:

It has removed the territorial disputes that quite often used to arise, over whether a given issue is within the province of the judge, or that of the jury. In addition, this reform has all but eliminated the practice of arguing the same point to different threshold standards on different occasions. It is now possible for many more cases to reach a final resolution more economically by early judicial decisions on key issues of fact, or mixed issues of law and fact.

In England and Wales, section 11 of the Defamation Act 2013 provides that defamation actions are to be tried without a jury unless the court orders otherwise.…

Orders against social networks to identify anonymous posters of defamatory content (Muwema v Facebook part 3)

5 July, 201718 July, 2017

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| Defamation

Fred Muwema is a prominent lawyer in Uganda, who claimed that various Facebook pages in the name of Tom Voltaire Okwalinga, or TVO, defamed him. In Muwema v Facebook Ireland Ltd [(No 1)] [2016] IEHC 519 (23 August 2016), Binchy J declined to grant injunctions requiring Facebook either to remove the posts from the account or to prevent the material in them from being re-posted, and I considered these holdings in one of my earlier posts on the case (also here). However, Binchy J did grant an order requiring Facebook to identify TVO, and I considered this aspect of the case in another of my earlier posts on the case (also here). This was not a difficult issue, as the defendant had consented to the order. However, before the order could be perfected, the defendant sought the leave of the Court to introduce new evidence with a view to opposing the making of the order. In Muwema v Facebook Ireland Ltd (No 2) [2017] IEHC 69 (08 February 2017), Binchy J allowed the new evidence to be introduced; and, having considered it, he declined to make the order after all. It is to that aspect of the case that this post is directed.…

Reform of the law of defamation – the defence of fair and reasonable publication

6 January, 20179 January, 2017

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| 2016-17 Reform, Defamation

Section 26 of the Defamation Act 2009 (also here) introduced a new defence of fair and reasonable publication into Irish defamation law. In Meegan v Times Newspapers Ltd [2016] IECA 327 (09 November 2016) Hogan J for the Court of Appeal (Finlay Geoghegan and Peart JJ concurring) explained that the

section is clearly designed to provide a defence for publishers who show that they acted bona fide and that the publication was fair and reasonable having regard, in particular, to the matters set out in section 26(2) of the 2009 Act. Section 26 may be regarded as an endeavour by the Oireachtas to move away in some respects from the strict liability nature of the common law tort of libel and to introduce – in, admittedly, some specific and limited respects – a negligence based standard in actions for defamation under the 2009 Act. ([2016] IECA 327 (09 November 2016) [10])

For all that section 26 is a centre-piece of the reforms worked by the 2009 Act, it is, in my view, a legislative dead letter. It is over-complex, placing far too many hurdles in the way of a successful invocation. Meegan illustrates the point. The plaintiff garda claimed that she had been defamed by the defendant’s allegations that she had supplied sensitive information to a paramilitary group.…

Reform of the law of defamation – damages

4 January, 201727 September, 2017

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| 2016-17 Reform, Defamation

The Tánaiste and Minister for Justice and Equality is conducting a review of the operation of the Defamation Act 2009 (also here). No doubt the focus of media submissions will be the level of damages, and exhibit A in those submissions will unquestionably be the decision of the Supreme Court in Leech v Independent Newspapers [2014] IESC 79 (19 December 2014). A report published today by the International Press Institute provides an excellent statement of the argument. In this post, I want to summarize and respond to some of the issues in the Report, and make three practical suggestions for reform of the law of defamation relating to damages.…