Obscene. Once I had caught my breath, and collected my composure, this was my immediate reaction to learning that a high court jury had awarded 10 million euro in libel damages, made up of €9m in compensatory damages and €1m in aggravated damages. According to RTÉ:

A Co Louth businessman who took a libel action against his former employers after an incident in which he sleep walked naked has been awarded €10m in damages.

The jury agreed that a press release sent out by mining company Kenmare Resources in July 2007 insinuated that Donal Kinsella had made inappropriate sexual advances to company secretary Deirdre Corcoran on a business trip in Mozambique in May that year.

The award is the highest award of damages for defamation in the history of the State. … Lawyers for Kenmare Resources were granted a stay on the award pending an appeal to the Supreme Court. … Kenmare Resources issued a statement saying it was ’shocked’ at the verdict and it will ‘immediately and vigorously appeal the decision’.

The Irish Times added: “Outside court, Mr Kinsella (67) said he was ‘exhilarated and vindicated’ by the jury’s verdict”. I do not in any way begrudge him the vindication of his reputation, but does this really require 10 million euro? Indeed, the Journal.ie reported that the judge (Mr Justice Éamon de Valera) “appeared surprised at the scale of the damages being awarded”.

Appeals to the Supreme Court are pending in three other high profile cases of involving very high levels of damages. Read the rest of this entry »

Section 28(1) of the Defamation Act, 2009 (also here) provides:

A person who claims to be the subject of a statement that he or she alleges is defamatory may apply to the Circuit Court for an order (in this Act referred to as a “declaratory order”) that the statement is false and defamatory of him or her.

Today, in an important decision, (that has been overshadowed by the coverage given to Doherty v Government of Ireland [2010] IEHC 369 (03 November 2010)), the first reserved judgment on the 2009 Act has been handed down on an application pursuant to this section (and another action seeking a declaration is pending):

Porn offender still capable of having character defamed, judge rules

A convicted porn user who had openly admitted his guilt and had sought psychiatric help is still capable of having his “residual” character defamed, a judge decided today.

Judge Joseph Matthews said that 34-year-old Barry Watters, of Hazelwood Avenue, Dundalk, Co Louth, had suffered a substantial loss of reputation through his guilt, conviction and imprisonment on pornographic charges. But he could not reasonably be said to be in the same category as a convicted prisoner who refused to accept his guilt, remained in denial and do absolutely nothing with no remorse, contrition, acceptance of wrong doing or show any intention to rehabilitate or not re-offend.

Judge Mathews told barrister Hugh Mohan, S.C., who appeared with James Mc Cullough, for Watters, that their client retained a residual reputation capable of being damaged by allegations suggested in an article in The Star on Sunday in September last. Watters had asked the Circuit Civil Court judge to direct the newspaper to publish an apology for stating he had formed “a seedy and weird relationship” in prison with Larry Murphy and referring to Watters as “a twisted pervert.” …

Judge Mathews said Mr Watters was entitled to a declaratory order that the article was defamatory and the court directed publication of a correction of the defamatory statement. The Act provided for the parties to agree the content of the correction and apology and if they were unable to do so the court could direct publication of the court’s judgment. He granted Mr Watters, who had not sought damages against The Star on Sunday, an order prohibiting the newspaper from further publishing the false and defamatory statements it had made.

The case was adjourned for a week to facilitate consideration of an appeal.

Read more here and here. Update: Irish Times.

This kind of action is exactly what the reforms in the Act were designed to achieve, a quick resolution without an application for damages. I look foward to reading the full text of the decision, and if anyone can supply it to me, I would be very grateful.

I was on the radio station 4FM this evening, talking about the defamation action currently being taken by politician Michael Lowry against journalist Sam Smyth over comments Smyth made in an article in the Irish Independent newspaper last May and on TV3 last June. The comments concerned the travails of Lowry and businessman Denis O’Brien with the Moriarty Tribunal (which is enquiring into payments to politicians). At the time, O’Brien threatened to sue Smyth (but not TV3 or the Irish Independent), and now Lowry done precisely that (Irish Independent | Irish Times | RTÉ).

On 4FM this evening, Tom McGurk was particularly concerned with the tactic of suing the journalist but not the news organization, and the question of whether the journalist in such a case would have an indemnity. That indemnity would be a matter for the contract between the journalist and employer, and if there is no contract or it does not provide for an indemnity, then it will be up to the employer to decide whether to indemnify or not.

Suing Smyth but not TV3 or the Irish Independent does not seem quite so extraordinary in this case, since Lowry does not want damages, but only a declaratory order pursuant to section 28(1) of the Defamation Act, 2009 (also here) that the comments are false and defamatory. The court can make the order if the comments are defamatory and the respondent has no defence, provided that the applicant requested an apology and the respondent failed or refused to accede to that request. Here, Lowry said he took the case after Smyth had failed to publish a correction and an apology for “highly offensive and defamatory statements”.

In this week’s proceedings, Lowry has sought summary judgment for that declaratory order pursuant to section 34(1), which the court can grant if it finds that the comments were indeed defamatory and that the defendant has no defence that is reasonably likely to succeed. Counsel for for Smyth said the application was unwarranted, that Smyth wanted to meet the application head on and wanted to file a detailed affidavit.

Presumably, therefore, Smyth intends to plead either the defence of fair and reasonable publication (pursuant to section 26) or possibly the defence of honest opinion (what used to be called fair comment) (pursuant to section 20). The defence of fair and reasonable publication is the Irish statutory equivalent of a defence developed by the courts in other jurisdictions to increase the ambit of permissible criticism about politicians and political matters; and there has also been a trend to apply the defence of honest opinion quite generously. Yesterday’s application was adjourned by consent until November 22, but these defences are sufficiently credible in my view that when the matter returns to court, Deery P is very likely to strike out Lowry’s application for summary judgment.

This is very interesting, as it seems to be the second concerning the operation of the Defamation Act (the first was heard before Judge Matthews earlier this week) and it raises some of the very important reforms implemented by the Act (the summary procedure; the declaratory order; the defence of fair and reasonable publication). It therefore bears close watching as it develops. But it does raise the question why Lowry didn’t bring his complaint to the Press Council. The late Tony Gregory seems to be the only politician who has availed of this avenue of redress (Press Council Annual Report 2008 (pdf) p25), and it would have afforded Lowry the same damages-free vindication of his reputation, and it wouldn’t have raised the same concerns about suing Smyth but not the tv station or newspapers involved.

Eric Goldman has recently blogged about a US case in which a local tv broadcaster was not held liable in defamation for a comment posted on its website by a viewer. More recently, Rebecca Tushnet discussed a case in which the review website Yelp was held not liable in defamation for hosting a review to which its subject objected (see also CYB3RCRIM3 | Eric Goldman | First Amendment Coalition | Internet Defamation Law Blog | Techdirt ). (Indeed, review authors will usually be able to rely on the defence of fair comment – or honest opinion – anyway). More recently still, Lilian Edwards has blogged about her presentation on internet intermediaries and legal protection. These posts got me thinking about how such disputes might play out as a matter of Irish law.

[After the jump, I discuss the basic position at common law and under the Defamation Act, 2009 (also here), and then I compare and contrast US 'safe harbor' defences with EU immunities.] Read the rest of this entry »

I have written twice before about the libel action Keith Burstein took concerning a newspaper review of his opera Manifest Destiny. In Associated Newspapers Ltd v Keith Burstein [2007] EWCA Civ 600 (22 June 2007) the Court of Appeal held the newspaper’s defence of fair comment must inevitably succeed, and made an order dismissing Burstein’s claim. He failed to obtain leave to appeal to the House of Lords, so he applied to the European Court of Human Rights in Strasbourg. I said at the time that I fully expected the ECHR to dismiss the case as manifestly ill-founded. Now comes news that my crystal ball was functioning well: the ECHR has indeed declined to consider the case, much to Burstein’s inevitable chagrin.

I haven’t been able to track down the ECHR decision on admissibility, so if anyone out there has it and could send it to me, I would be very grateful indeed.

A few weeks ago, the Science Gallery in TCD hosted a fascinating event on the chilling impact of the law of libel on scientific debate. Chaired by Myles Dungan, the speakers were Simon Singh, who successfully defended a two year libel battle with the British Chiropractic Association, his lawyer Robert Dougans, cardiologist Peter Wilmshurst who is currently being sued for libel in the biggest ongoing medical libel case, and his lawyer Mark Lewis. A video of the event is now up on YouTube.

The cases against Singh and Wilmshurst are English, but, as an article in today’s Irish Times shows, Irish law is to the same effect:
Read the rest of this entry »

Reform of the UK’s libel laws could have interesting consequences for Irish law. A cartoon from a story in this week’s Economist sets the scene:

A few extracts from the article accompanying the above cartoon:

Improving a reputation

England’s strict libel laws face a shake-up

Selling legal services to people in other countries is a lucrative business for Britain, but where the libel industry is concerned the trade is increasingly unwelcome. Foreigners can sue each other in English courts, even when publication has been almost wholly elsewhere. .. For foreigners and locals alike, mounting a defence is costly and tricky. …

The fear of libel suits may chill academic debate (big medical companies have sued several scientists for criticising their products). Outfits campaigning against beastly regimes abroad say they have had to defang their reports because of the threat of litigation.

Many want the law to be fairer, simpler, quicker and cheaper. … Anthony Lester QC … submitted a private member’s bill which would make most of the important changes that reformers have been seeking. One would replace the flimsy “fair comment” defence (which easily gets tied up in questions of fact) with a new one of “honest opinion”. … A second change would replace the “responsible publication” defence, which puts more weight on procedure than substance, with one of “public interest”. … A third part of the bill would make it harder for corporate bodies to sue. Moreover, any foreign claimant would have to show that he had suffered “substantial harm” in England. …

Lord Lester’s Bill is available here, analysed on Banksy’s blog and on Inforrm’s blog; a note of caution is sounded by Zoe Margolis whilst Paul Tweed is critical. Though important, the Bill is simply one part of the current conversation about libel reform in the UK. Another important part is the difference of opinion between two retired Law Lords (Hoffmann and Steyn).

Of course, be careful what you wish for. In Ireland, the Defamation Act, 2009 has reformed our libel laws. However, by the time it had worked its way through the Department of Justice and the Oireachtas, it was considerably watered down by departmental conservatism and political compromise; but now that it has been enacted, there is little political will for further reform. Lord Lester’s bill is carefully drafted; but if it suffers the same fate as the Irish bill did, it may not achieve its intended end, and the opportunity may be lost.

Finally, if Lester’s Bill, or some recognisable version of it, becomes law, then English law will have achieved a better balance in defamation law than Irish law does. It could also have profound effects on the future of Irish defamation law. The 2009 Act it is an incomplete reform: its new centerpiece defence of fair and reasonable publication is unworkable; its changes relating to damages are very timid; it confirms that corporations can sue for damages; and it does nothing to prevent libel tourism (the phenomenon of plaintiffs touring for the most congenial legal climate in which to take a libel action). Ireland would then be faced with the following choice. Dublin could replace London as the libel tourists‘ most favoured destination; or we could introduce similar amendments ourselves. It will be interesting to see how all this pans out.

The second Annual Report of the Press Council and the Office of the Press Ombudsman (pdf) was launched yesterday. Speaking at the launch, Dermot Ahern, the Minister for Justice, Equality and Law Reform, announced that he had, on 21 April, signed the Order granting the Press Council of Ireland recognition as the Press Council for the purposes of the Defamation Act, 2009. The full text of the Defamation Act 2009 (Press Council) Order 2009 (SI No 163 of 2010) (pdfs here and here) is as follows [with added links]:

Defamation Act 2009 (Press Council) Order 2009 (SI No 163 of 2010)

I, Dermot Ahern, Minister for Justice, Equality and Law Reform, being satisfied that The Press Council of Ireland complies with the minimum requirements specified in Schedule 2 to the Defamation Act, 2009 (No 31 of 2009), hereby, in exercise of the powers conferred on me by section 44 of that Act, make the following order with respect to which, pursuant to subsection (7) of that section, a draft has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House:

1. This Order may be cited as the Defamation Act 2009 (Press Council) Order 2010.

2. It is declared that The Press Council of Ireland shall be recognised for the purposes of the Defamation Act 2009 (No 31 of 2009) as the Press Council.

Given under my Official Seal,
21 April 2010.

DERMOT AHERN,
Minister for Justice, Equality and Law Reform.

This is a very important development. It completes the process of recognition for the Press Council under the 2009 Act; it allows the press to participate fully in the Press Council system; and it affords complainants a quick and easy form of redress.

Media reports of the launch focussed on other issues: Ahern criticises media’s Oireachtas coverage (Irish Times); Ahern concerned over press intrusion (Irish Times); Most of 351 complaints against press about truth and accuracy (Irish Times); Press report (Editorial, Irish Times); Ahern lays down the law on Twitter and Facebook lies (Irish Independent); Social media users ‘not exempt from defamation laws’ (Irish Examiner); 5% increase in complaints to Press Council (Irish Examiner).

Bonus link: Simon Singh, who will be speaking at the Science Gallery in TCD on Thursday evening, writes in today’s Telegraph that reform of libel law is long overdue, and in particular, that bolder defences are necessary for those writing about matters in the public interest.