Defamation – Page 12

Defamation and the Constitution

Posted on 30 November, 200931 July, 2016 by Eoin

“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).…

New year, new defamation regime

Posted on 23 November, 200923 November, 2009 by Eoin

Alison Healy, writing in today’s Irish Times, quotes a spokesperson for the Department of Justice as saying that

… no part of the [Defamation] Bill had come into force yet but the [Defamation] Act was expected to be commenced in January.

Healy continues that, whilst in July, the Department had said that the Act was expected to commence in October, the spokesperson confirmed that it is now expected to commence in January 2010. For earlier comments to the same effect, see Rossa McMahon (see also here).

Unfortunately, the headline is the far more sensationalist

Blasphemy law unlikely to come into force this year

Yes, the Defamation Act, 2009 (pdf) does indeed have provisions relating to blasphemy; yes, I’ve written quite a bit about those provisions on this blog; (and yes, international reaction (pdf) continues (pdf) to be negative); but there is far more to the Act than that. If you want to find out more, you could do worse than to attend this event.…

Conference: Recent developments in Irish Defamation Law

Posted on 21 November, 200921 November, 2009 by Eoin

Next week, the School of Law, Trinity College Dublin, will host a conference on

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

  09:30   Paul O’Higgins, SC  The Defamation Act from the Plaintiff’s Perspective
  09:55   Eoin McCullough, SC  The Defamation Act from the Defendant’s
Perspective
  10:20   Paula Mullooly  The Defamation Act from the Solicitor’s Perspective
  10:45   Questions and Discussion

11:00 Tea/Coffee Break

  11:15   Brendan Kirwan BL  Injunctive Relief and Remedies
  11:40   Ray Ryan BL  Key Points of Practice and Procedure in Defamation
  12:05   Dr Eoin Carolan BL  Alternative Causes of Action
  12:30   Dr Eoin O’Dell The Defamation Act: The Constitutional Dimension
  12:55   Questions and Discussion

13:15 Conference Ends

14:30 Ireland v South Africa (Croke Park)

For more information or to make a reservation, please phone ((01) 896 2367), fax ((01) 677 0449), email, or visit the website.…

Defamation of a company in the still un-commenced 2009 Act

Posted on 12 November, 20093 October, 2023 by Eoin

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.

…

Don’t mention the hotel

Posted on 13 October, 200913 October, 2009 by Eoin

Legal Eagle on SkepticLawyer writes:

Fawlty Towers fights back

My parents just came back from a holiday in Europe, and were telling me about one of the less salubrious hotel rooms they experienced. … [They] were contemplating writing a review for a travel website to warn other travellers that this purportedly “four star” hotel was not all it was cracked up to be.

Still, it seems that, as this piece suggests, it’s worth thinking hard before you write a review which is critical:

Travellers who post scathing reviews or comments about hotels or restaurants could be exposing themselves to long and costly legal battles …

You think this is far-fetched? Well, read my post about what happened when Sydney restaurant Coco Roco got an unfavourable review… A majority of the High Court found that the review was defamatory (and overturned the conclusion of the jury on that point).

I think this is a dangerous precedent. If you serve up food which is not to a reviewer’s taste, or your hotel was not to your guest’s liking, what you need to do is listen to the criticism, and see if there is any merit in it.

I think Legal Eagle is vastly overstating the problem here.…

Defamation, opinion, and the presumption of innocence

Posted on 12 October, 200931 July, 2016 by Eoin

“Better that ten guilty persons escape than that one innocent suffer”

William Blackstone Commentaries on the Laws of England (vol 4) 358

With very little coverage (Day 1: Irish Times here and here | RTÉ; Day 2: Irish Times), a case which had the capacity to make a fundamental change to Irish defamation law was decided in the Supreme Court at the end of last week. Two members of the Birmingham Six have taken defamation proceedings against leading English human rights barrister Sir Louis Blom–Cooper QC (pictured left). Blom-Cooper sought to have the case struck out on the basis that his expression of opinion was constitutionally protected. However, the Supreme Court allowed the case to proceed, and (if the press reports are accurate) ducked the constitutional question, at least for the time being.

The story begins with the presumption of innocence, embodied in the quote from Blackstone, above. In Woolmington v DPP [1935] AC 462, [1935] UKHL 1 (23 May 1935) Viscount Sankey held that “the presumption of innocence in a criminal case is strong”, and emphasised, that throughout the web of the criminal law,

… one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

…

Libel tourism, online defamation and multiple publication

Posted on 22 September, 200916 November, 2015 by Eoin

In the UK, the Ministry for Justice has just begun a consultation process seeking views on the “multiple publication rule” at common law under which each publication of defamatory material can form the basis of a new defamation claim, and in particular on the effects of this rule in relation to online archives. If this rule is reformed, then a major plank of the libel tourism phenomenon, by which London has become the libel capital of the Western world and home to libel actions that have little to do with its jurisdiction, will quite properly have been removed (see BBC | ComputerWorld | Greenslade | Guardian | Index on Censorship Free Speech blog | Information Overlord | OUT.law | Slaw | TechWatch | Times Online).

The multiple publication rule was established in Duke of Brunswick v Harmer (1849) 14 QB 185 (already discussed on this blog), reaffirmed in Loutchansky v Times Newspapers [2002] QB 783, [2001] EWCA Civ 1805 (05 December 2001), and upheld by the European Court of Human Rights (ECHR) in Times Newspapers Ltd (Nos 1 and 2) v the United Kingdom Applications 3002/03 and 23676/03, [2009] ECHR 451 (10 March 2009).…

The benefits of the Press Council

Posted on 19 September, 200910 December, 2012 by Eoin

Using the Press Ombudsman and Press Council mechanisms will allow media complaints to be settled without lawyers, as expensive legal processes will be invoked much less frequently following the enactment of the Defamation Act, 2009 according to the Press Ombudsman, Prof John Horgan. On the one hand, he would say that wouldn’t he? On the other, I hope that he’s right; it’s much too early to tell, of course, but that is the intention behind the establishment and recognition of his office.

However, not only is bringing a complaint to his office cheaper and quicker, it’s probably also safer than going to court. According to the Irish Times breaking news service, a judge was accidentally shot in court; but the facts were rather more prosaic, and the later print version of the article explained that pellets from a toy gun struck the judge at a family law hearing. …