Archive for the “Irish cases” Category
 It all began innocently enough: just before Christmas, Sunday Times journalist John Burns wrote a piece lamenting the shortcomings of blogging in Ireland. Leading bloggers naturally begged to differ. A month later, the spat was picked up by Trevor Butterworth writing on Forbes.com, who noted that “it’s hard to think of a free country more suited to blogging than Ireland”. By the same token, it’s at least as hard to think of a country more given to litigation; and the point was illustrated by a story retailed almost en passant in Butterworth’s piece:
As one journalist told me, Ireland’s media is currently abuzz over a “confidential” legal settlement against a blogger, who allegedly had to pay almost $140,000 in damages for a libelous post, seen by few, swiftly purged from the site, and readily apologized for.
This was intriguing. By the end of the week, John Burns in the Sunday Times had the full story:
A blogger has agreed a €100,000 settlement after libelling Niall Ó Donnchú, a senior civil servant, and his girlfriend Laura Barnes. It is the first time in Ireland that defamatory material on a blog has resulted in a pay-out. … In December 1, 2006, a blogger who styles himself as Ardmayle posted a comment about the couple … Following a legal complaint, he took down the blog and in February 2007 he posted an apology which had been supplied by Ó Donnchú’s and Barnes’ lawyer … However, the pair subsequently issued separate proceedings. It is understood that the €100,000 settlement was agreed shortly before the case was due before the High Court.
Indeed, there had been quite a detailed report at the time in the Sunday Independent; and in the last week, many blogs have pored over the story.
There’s nothing new in online defamation; the same basic legal principles apply online as they do offline; the medium may change, but the legal consequences of the message remain the same. But the story does raise some interesting legal issues. Mark Coughlan on TheStory.ie pointed out that, before the storm blew up this week, Ardmayle had been “little known, to say the least”, and he quite rightly queried the actual damage the blog had done to the plaintiff’s reputations. UCD law lecturer TJ McIntyre picked up that point:
The level of damages in defamation reflects the extent of publication – i.e. the extent to which the defamatory material was actually read. This is not (despite the best efforts of plaintiffs’ lawyers) the same as the extent to which it might have been read. Consequently (leaving aside other factors such as the gravity of the allegations) damages should be greatly reduced where the audience can be shown to be negligible. Potential readability worldwide notwithstanding.
For him, therefore, the case highlights the importance of keeping good server logs to counter the all-too-easy assumption that “availability online automatically equals a mass audience”.
Ireland’s libel laws have recently been overhauled by the Defamation Act, 2009, which came into force on 1 January this year. Section 31(4) provides that the court in a defamation action shall have regard to a range of factors in making an award of general damages, including:
(b) the means of publication of the defamatory statement including the enduring nature of those means,
(c) the extent to which the defamatory statement was circulated, … [and]
(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement …
These considerations tend to reinforce TJ’s point about the importance of keeping good server logs. It is hard to tell from the reports whether any of the Act’s defences might have availed the blogger, though the new defence of fair and reasonable publication on a matter of public interest, whilst hobbled, may have done.
The Act is a welcome, but incomplete, reform – incomplete not least because it takes little account of the increasing trend towards online communication. In particular, it does not attempt to achieve inter-operability between its restatement of the traditional defence of innocent publication and the defence provided to intermediary service providers by the implementation of the E-Commerce Directive.
Finally, there are questions of the compatibility of this kind of outcome with the free speech provisions of the Irish Constitution and of the European Convention on Human Rights. There are, in particular, emerging arguments that various European Courts have clearly moved to grant traditional press freedoms not only to traditional media but also to online actors such as bloggers engaged in “the creation of forums for public debate”. This might not have protected Ardmayle’s obscure blog, but if – contrary to the views John Burns expressed in the article at this beginning of this post – the Blog O’Sphere continues to develop as a vibrant forums for public debate, then future bloggers in Ardmayle’s shoes may be able to rely on the Constitution and the Convention. Until then, we will all have to tread softly.
Reposted from Index on Censorship.
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“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. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law … and no attempt to whittle it down can be entertained.
Furthermore, it is now clear that the presumption of innocence does not merely apply during the course of a trial. In R v Hickey [1997] EWCA Crim 2028 (30 July 1997) the Court of Appeal in England held that, where an appeal court quashes convictions, the presumption of innocence in respect the appellant is re-established. In J O’C v DPP [2000] IESC 58 (19 May 2000), Hardiman J referred to Hickey and other cases to conclude that
… the presumption of innocence applies to all unconvicted persons. This is so whether they are unconvicted because the trial has not yet taken place or because a conviction has been quashed.
The whole issue is brilliantly treated in Claire Hamilton’s superb book The Presumption of Innocence in Irish Criminal Law. ‘Whittling the Golden Thread’ (Irish Academic Press, Dublin, 2007). However, at least in the context of convictions set aside on appeal, this was not an incontestable view of the law. In 1997, Blom-Cooper, argued that the Court of Appeal got it wrong in the Hickey case, and that the presumption of innocence persists until a conviction, but once it is gone, it is not revived by the quashing of the conviction on appeal.
 Commentators disagree with judges all the time. Indeed, I have done so regularly on this blog. And Blom-Cooper is an outspoken commentator who regularly argues for alternative views of the law. However, in this case, he may have gone too far. He made this argument in a pamphlet called The Birmingham Six and Other Cases. Victims of Circumstances (Duckworth, 1997). In it, he examined recent miscarriages of justice, such as the case of the Birmingham Six (pictured left), to raise once again his longstanding objections to the current system of trial by jury and to explore the consequences of the professional failure to explain the function of the Court of Appeal. Two of the Birmingham Six, Gerry Hunter and Hugh Callaghan, sued Blom-Cooper and his publisher, Duckworth, for defamation, alleging that various comments made by Blom-Cooper in the pamphlet constituted both an overt and a covert attack upon their innocence.
Once the Irish High Court had held that the case could be brought in Dublin, Blom-Cooper sought to have the case struck out on the basis that he had done no more than to express an opinion, which was a right absolutely protected by the Irish Constitution. It was an extraordinary claim – the right to freedom of expression protected by Article 40.6.1(i) of the Irish Constitution is still under-developed, and was considerably more anaemic ten years ago – but the argument held out the prospect of improving this state of affairs. Read the rest of this entry »
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 As I wrote in my previous post, the Supreme Court in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) allowed the appeal against the decision of the High Court in Mahon v Keena [2007] IEHC 348 (23 October 2007). Fennelly J delivered the judgment of the Court, in which Murray CJ and Geoghegan, Macken and Finnegan JJ concurred, and its effect is that two Irish Times journalists could decline to answer questions about their sources (unsurprisingly, there is a lot of coverage in that paper: see here, here, here, here and here).
1. Introduction
There are at least three important aspects to Fennelly J’s decision. The first relates to his almost exclusive reliance on the European Convention on Human Rights (ECHR), rather than the Irish Constitution. The second relates to his approach to the issues in general and to his treatment of the High Court judgment in particular: in short, he felt that the High Court had overstated the balance against the appellants. And the third relates to what he had to say about the nature of a journalist source privilege: in short, he preferred to avoid such language in favour simply of a balancing test. Taking all these issues into account, I’m not convinced that it is an unequivocal recognition of a journalist source privilege as a matter of Irish law; instead, it seems to me that this is a very carefully circumscribed decision which is, at best, a muted victory for the journalists. Read the rest of this entry »
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 In a recent post, I discussed newspaper reports of a recent High Court case in which Quinn Insurance Group lost a High Court bid to strike out parts of the Sunday Tribune’s defence to forthcoming libel proceedings taken against it by the insurance company; and I promised to return to the case as soon as a full report of the judgment became available online. I can now make good on that promise, as the judgment is available here and here. It turned on the question of how much detail must be pleaded before trial by a defendant claiming that an alleged defamation was either true or covered by qualified privilege.
Relying on an internal and confidential Garda (police) memorandum, the Sunday Tribune alleged that senior Gardaí had been recruited by Quinn to investigate insurance claims being made against it, and that the Gardaí not only relayed detailed information to Quinn, but also offered bonuses or sweetners to solicitors on behalf of plaintiffs to recommend early settlements in cases or claims against Quinn. The paper characterised this as “a scandalous subversion of garda independence” and resources. The Quinn Group disputed the authenticity of the memorandum and sued for libel; the paper defended the memorandum and pleaded justification (in effect, that allegations were true), or alternatively that the disclosures were in the public interest and thus protected by qualified privilege.
In Quinn Insurance Ltd v Tribune Newspapers plc [2009] IEHC 229 (13 May 2009) (also here) the question for Dunne J was whether sufficient detail about the plea of justification had been provided to Quinn by the Sunday Tribune. Read the rest of this entry »
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 It is said that patience is a virtue. It seems that the Supreme Court is determined to make us all virtuous. As we eagerly await their decision in the appeal from the decision of the High Court in Mahon v Keena [2007] IEHC 348 (23 October 2007), it appears we shall have to hold our souls in patience for a while longer. (I think Ambrose Bierce got it right in the wonderfully acerbic Devil’s Dictionary when he defined “patience” as a “minor form of despair, disguised as a virtue”). From today’s Irish Times:
Mary Carolan
The Supreme Court may rule next month or in the autumn on the appeal by Irish Times editor Geraldine Kennedy and public affairs correspondent Colm Keena against a court order requiring them to answer questions from the Mahon tribunal. The questions relate to the source of an article about financial payments to former taoiseach Bertie Ahern.
The two-day appeal concluded before a five-judge Supreme Court last December, when judgment was reserved. Legislation requires that it be listed for review at regular intervals. The Chief Justice, Mr Justice John Murray yesterday further listed the matter for July 31st, the last day of the existing law term. Judgment may or may not be given on that date. …
In fact, it is a bumper edition of the paper, so far as the issues of interest on this blog are concerned:
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 Two defamation stories from the Irish Times. The first concerns an interesting variation on the old defamtion saw, the sting of the libel:
… In the Language of Flowers – a Victorian invention by which tortured lovers and the like used to send coded messages – nettles signified “cruelty” or “slander”. So in a sense, Shakespeare’s Cordelia is defaming the symbol of defamation when she lumps nettles (in King Lear Act IV) with “cuckoo flow’rs, darnel, and all the idle weeds that grow in our sustaining corn”. …
The second concerns what seems like an important development in the defence of public interest publication:
Quinn Insurance Group has lost a High Court bid to strike out parts of the Sunday Tribune’s defence to forthcoming libel proceedings taken against it by the insurance company.
The libel action is over articles alleging the group recruited gardaí to approach solicitors to offer them bonuses on their fees to recommend reduced settlements to clients in cases against Quinn Direct.
Ms Justice Elizabeth Dunne yesterday ruled the defendants had provided adequate details of its plea of justification for the article and also sufficiently set out the nature of the public interest being relied upon to justify the article. …
The Quinn Group says that it fully intends to “prosecute its case to conclusion”, so we may yet learn just how stinging the Sunday Tribune’s allegations are. The judgment is not yet available on Bailii or the Courts’ Service judgments’ database (the time it takes to get judgments onto these websites is a source of ongoing frustration for me, and for others), but as soon as it is, I’ll come back to it.
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 Journalists’ source privilege is in the air. In the US, the House of Representatives has recently passed a (not particularly readable) Bill recognising a journalists’ source privilege (the Free Flow of Information Act of 2009), and it has been introduced into the Senate. In the UK, a prosecution of a local newspaper journalist and the police source who “leaked” stories to her was recently dismissed (indeed, a similar case against a member of parliament will also not proceed, though another is still pending).
On a judicial level, the Trial Chamber of the Special Court for Sierra Leone (SCCL) (pdf) (noted on the CPJ blog), relying on the earlier decision of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v Bradjanin and Talic (11 December 2002), held that a Liberian journalist did not have to divulge the names of those who facilitated his access to a war zone. In Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009) (noted in my previous post), building on its seminal and hugely influential decision in Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996), the European Court of Human Rights (ECHR) explored the limits of such a privilege.
Moreover, in Ireland and Canada, cases are pending in both countries’ Supreme Courts on the question of the nature and extent of journalists’ source privilege. So, it’s a good time to try to clarify some of the important issues which arise. In particular, a key question, often overlooked, is whether the privilege inheres in the journalist or the source. For my own part, I would say that privileges inhere in both the journalist and the source, that they are two different privileges, and that they arise and are lost in very different ways.
Read the rest of this entry »
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/039985CF069B55A380256DA900467820/$FILE/heritage_link1.gif) Law reports from Monday’s Irish Times:
Offences must correspond under European Arrest Warrant
MJELR v Laks (High Court, 14 January 2009, Peart J) [2009] IEHC 3
An application for the surrender of Polish man to serve a 10-month sentence in Poland under a European Arrest Warrant was refused on the basis that there was not sufficient correspondence between the offence and an offence under Irish law to meet the terms of the European Arrest Warrant Act, 2003 (also here).
Lay litigant loses challenges to District Court judges
Tracey v Malone (High Court, 20 January 2009, Cooke J) [2009] IEHC 14
A law litigant who sought a series of rulings against Judge Miriam Malone and Judge Bridget Reilly of the District Court failed in his application and received a declaration confirming his entitlement to retain a professional stenographer at his own expense.
Appeal court says determinate sentence preferable to life sentence
DPP v PS (Court of Criminal Appeal, 28 January 2009) Finnegan J (Budd and Irvine JJ concurring) [2009] IECCA 1
The applicant was entitled to credit for an early plea of guilty, co-operation with the Garda and the early and apparently genuine expression of remorse and this justified a lesser sentence than life imprisonment. However, account must be taken of his continuing danger to the public, meriting a significant period of post-release supervision.
In short: Technical directive seminar | Civil Partnership Bill discussed (ICCL) | Corruption study published | Renewable energy considered (IIEA) | Women lawyers child conference.
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