Defamation – Page 9

Late to the defamation party

Posted on 7 January, 201116 November, 2015 by Eoin

In the UK, the Deputy Prime Minister, Nick Clegg (pictured left) has announced significant reforms of Britain’s libel laws, which I consider a very good thing.

During a wide-ranging speech today on civil liberties, he said:

We will be publishing a draft defamation bill in the Spring. We intend to provide a new statutory defence for those speaking out in the public interest, whether they be big broadcasters or the humble blogger. And we intend to clarify the law around the existing defences of fair comment, and justification.

We believe claimants should not be able to threaten claims on what are essentially trivial grounds. We are going to tackle libel tourism. And we’re going to look at how the law can be updated to better reflect the realities of the internet. Separately, we are also going to address the high costs of defamation proceedings. … Our aim is to turn English libel laws from an international laughing stock to an international blueprint.

Welcome though this is, as with many political developments, it is in danger of being overspun or at least oversold. According to yesterday’s Guardian:

Britain will become the first country to ask parliament to set out its libel laws, and provide greater clarity, his officials said.

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Some Thoughts on Libel Tourism by Andrew Klein (via SSRN)

Posted on 5 January, 201116 November, 2015 by Eoin

Some Thoughts on Libel Tourism

by Andrew R. Klein, Indiana University School of Law, via SSRN

This paper addresses the topic of “libel tourism,” a phrase used to describe cases where plaintiffs sue for defamation in a foreign jurisdiction and then seek to enforce judgments in the U.S., where the outcome might have been different because of protections for speech embodied in the United States Constitution. … [It] reviews recent reactions from legislators, courts, and commentators, and then offer some thoughts about whether these reactions appropriately balance concerns of comity and free speech. Ultimately, the essay concludes that U.S. attempts to address the issue of libel tourism have been quite broad, and suggests a more cautious approach that would better contribute to maintaining America’s role as a leader in the evolving world of tort law.

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Fair Use: Be careful what you wish for!

Posted on 20 December, 201016 January, 2011 by Eoin

A little later than promised, here are some thoughts that occurred to me at the recent seminar on Promoting innovation – Reshaping the Law for the Digital Economy (which I blogged here and here). In the same way that browsers have a constant battle between features and speed, so the modern law of copyright is faced with a similar dilemma between encouraging and rewarding innovation. It is becoming increasingly clear that it has not solved this dilemma in a particularly satisfactory way. More than that, the most popular emerging solution – the introduction of a fair use defence to EU law – may not be sufficient for current needs, let alone for future developments.

At the seminar, Johnny Ryan argued that with the rise of the internet, where everything is in perpetual beta, we are in effect are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Copyright is a feature of this period: in the 1500s, it developed to protect the publishers; in the second half of the 1600s it came under increasing pressure to protect authors, and this was codified in the Statute of Anne, 1710; thereafter, the statutory protections were slowly expanded to other creators of other original works.…

Judgment reserved in Lowry v Smyth

Posted on 17 December, 201018 December, 2010 by Eoin

In Watters v Independent Star [2010] IECC 1 (3 November 2010) Matthews J in the Circuit Court handed down the first reserved decision under the Defamation Act, 2009 (also here). We will soon have the second. The politician Michael Lowry TD (pictured left) has taken a defamation action against journalist Sam Smyth over comments Smyth made in an article in the Irish Independent newspaper last May and on TV3 last June. I’ve already blogged about an earlier procedural skirmish in the case. The full action was heard today. According to the RTÉ news website (with links added by me to the relevant sections of the 2009 Act):

Mr Lowry says that Mr Smyth’s assertions portrayed him as corrupt, dishonest and untrustworthy and both unfit and unsuitable to be a minister or a TD. He said that other people had taken this same meaning from Mr Smyth’s comments. Mr Lowry says the comments were false and as such were deeply offensive and defamatory.

Mr Lowry is seeking that the court make a number of orders including that Mr Smyth apologise, publish a correction and refrain from making such public comments in the future. However, Mr Smyth is arguing that the comments made by him were true and represented his honest opinion.

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Reshaping the Law for the Digital Economy – II – the liability of intermediaries

Posted on 24 November, 20106 November, 2012 by Eoin

As I said my first post yesterday, last Friday morning I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy, hosted by Google Ireland, co-sponsored by the Institute for International and European Affairs (IIEA), and chaired by TJ McIntyre. In that post, I summarized the presentations by Johnny Ryan (the internet has created a hinge in history when information is plastic and copyright law is a block upon total commerce) and Niall O’Riordan (for Google, a fair use doctrine in Ireland and Europe is an idea whose time has come). In this post, I’ll look at last Friday’s other presentations; and in tomorrow’s post, I’ll add a few comments of my own on some of the issues raised by the seminar.

Kate O’Sullivan (Director of Regulation and Public Policy, UPC Ireland) pointed out that intermediaries (such as Google, Facebook, and ISPs) are caught in the middle between content producers seeking to enforce their rights as against users, and it is not appropriate that ISPs should be judge and jury in such a cause. Section 40(3) of the Copyright and Related Rights Act, 2000 (also here) provides that the mere provision of facilities by an ISP, for example, which enable the making available to the public of copies of a work “shall not of itself constitute an act of making available to the public of copies of the work” and therefore shall not for that reason amount to a copyright infringement.…

Sleepwalking into an obscene damages award

Posted on 17 November, 20103 February, 2013 by Eoin

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?…

The first reserved judgment on the Defamation Act, 2009

Posted on 3 November, 20107 November, 2010 by Eoin

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.

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The Defamation Act, 2009 in the courts

Posted on 22 October, 201010 December, 2012 by Eoin

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.…