In today’s Irish Times (with added links):

Defamation Act a welcome but imperfect reform for libel cases

The Defamation Act [2009] which came into effect this month, is a significant improvement on the old law, but serious problems remain … [It] modernises the law. It provides statutory support for the Press Council and it makes it easier both to take and to defend libel cases. For these reasons, as the Act came into effect earlier this month, Andrew O’Rorke quite rightly afforded it a very warm welcome … However, it ducks some important reforms and bungles others, while some of its most significant provisions raise constitutional problems.

For example, it fails to account for internet service providers (ISPs) or to rebalance the burden of proof from the defendant to the plaintiff. The centrepiece defence of fair and reasonable publication is unworkably narrow. Those issues, along with the ease with which companies can take defamation actions under the Act, might even prove unconstitutional. …

The Defamation Act 2009 is a hugely significant piece of legislation, which has gone a very long way towards restoring fairness and stability to a notorious area of the law. However, in some important respects, the Act raises as many questions as it has answered and its deserved welcome must therefore be a qualified one.

Bonus links: (i) a long-running high-profile defamation case in New Zealand has just settled; (ii) in honour of the recent snow falls, a cartoon about defaming a snowman.

One of the reasons for delaying the coming into effect of the Defamation Act, 2009 from 23 July 2009 when it was signed by the President until 1 January 2010 was the need to amend the Rules of the Superior Court to provide for the changes to practice and procedure which it requires. Those changes are effected by SI No 511 of 2009: Rules of the Superior Courts (Defamation) 2009 (pdf). It inserts a new Order 1B in, and amend Order 22, Order 36 and Appendix B, Part II of the Rules of the Superior Court) to facilitate the operation of the Defamation Act, 2009. In particular, it makes provision for

• verifying affidavits under section 8,
• the procedures relating to various applications under sections 11 (multiple publication), 14 (meaning), 33 (prohibition order), and 34 (summary application), and under section 11(2)(c) of the Statute of Limitations 1957 (as amended by section 38),
• applications under section 23 relating to offers of amends,
• notification of evidence of apology under section 24, and
• particulars of evidence in mitigation (amending Order 22 RSC).

Writing in today’s Irish Times, Andrew O’Rorke, Chairman of Hayes Solicitors who are that paper’s legal advisors, welcomes the recent commencement of the Defamation Act, 2009 (much as the Editor did at the time of its enactment):

Defamation Act will facilitate more sensible, efficient justice

… The impetus to change the law on defamation originated in 1987. … Government has always been suspicious of media’s perception of its own importance to society. It is an uneasy relationship, which has probably deteriorated in recent times with the increasing examination and analysis of executive action and conduct. There was a marked reluctance to proceed with new legislation, as is evidenced by the almost 20-year gap in finally introducing the Bill in 2006 and the delays since then, …

Freedom of expression is a fundamental right, a cornerstone of any democratic, tolerant society, and when sought to be exercised by journalists it should be for the benefit of and on behalf of that same society and the public’s right to know. It is a precious right, but not one that can be exercised in defiance of others’ rights and certainly not if it vilifies another person or paints an untrue picture of that person, their character or actions, which is the essence of defamation. … It is right that healthy tension should divide the two, representing the democratic choice of the people and the resultant scrutiny of the exercise of power. Defamation law to some extent mirrors that contrast, as is evidenced by the contributions to the Oireachtas debates on the passage of the legislation.

The 2009 Act modernises the law and puts it on a par with other civil legislation governing the conduct of litigation. There are no revolutionary changes in its provisions .. To some extent it is lawyers’ law incorporating amendments which will facilitate all sides in the better and fairer conduct of cases. … These modest changes should lead to more efficient, sensible procedures in the interests of the parties and smoother administration of justice.

Read all about it here.

The long wait is nearly over. The Defamation Act 2009 will come into force on 1 January 2010. From the Department of Justice [pdf]:

Defamation Act 2009 (Commencement) Order 2009 (SI No 517 of 2009)

I, Dermot Ahern, Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by section 1(2) of the Defamation Act 2009 (No 31 of 2009), hereby order as follows:

1. This Order may be cited as the Defamation Act 2009 (Commencement) Order 2009.

2. The 1st day of January 2010 is appointed as the day on which the Defamation Act 2009 (No 31 of 2009) comes into operation.

Given under my Official Seal,
15 December 2009.

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

John O’Dowd of the School of Law, UCD, is first into print with a detailed analysis of the Defamation Act, 2009 (pdf): see “Ireland’s New Defamation Act” (2009) 1 (2) Journal of Media Law 173-190. Here’s the abstract [with added links]:

The Defamation Act 2009 [pdf] places the law of defamation in Ireland on an almost completely statutory footing. It results from almost 20 years’ analysis and debate, starting with two Law Reform Commission reports in 1991 [tort of defamation html, pdf; criminal libel html, pdf]. During those two decades, some of the Commission’s proposals were overtaken by judicial development of the common law of defamation, notably by the emergence of the Reynolds [see Reynolds v Times Newspapers [2001] 2 AC 127, [1999] UKHL 45 (28 October 1999)] defence. The Act reflects a determination to take account of such changes, particularly in respect of Reynolds. The Act is distinctive through the reference which it makes to the Press Code of Practice, the Press Ombudsman and Press Council established in 2008 [link]. Those were the response of the press to proposals made to the Government for a statutory press council with regulatory powers over periodical publications. The new defence of fair and reasonable publication on a matter of public interest employs the Code of Practice and the determinations made by the Ombudsman and Council as a yardstick of reasonableness. Reported disagreement within government transpired, not to relate to these modifications of the law of defamation, but to whether or not they must be counter-balanced by a more effective legal protection of personal privacy.

“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). The presumption of falisty could, by virtue of the interpretative obligation under section 2 of the ECHR Act, 2003 (also here), be removed by a literal interpreation of sections 2 and 6(1) of the 2009 Act. And the rule in section 12 that a body corporate can sue without proof of special damage could be reversed by a finding of unconstitutionality or a declaration of incompatibility.

Certain provisions of the Act relating to defences are also questionable. For example, section 15(1) provides for the abolition of pre-Act defences, but it fails to provide for a saver for any defences which may have been generated by the Constitution or the Convention, such as the emergent defence of responsible publication in the public interest. Again, section 20(1) provides for a defence of honest opinion, renaming and replacing the defence of fair comment. The plea in Hunter v Duckworth [2003] IEHC 81 (31 July 2003), dodged by the Supreme Court, was that the common law was defective having regard to the constitutional protections of the “right to express freely … convictions and opinions”. If the impact of the constitution in this area is determined at a later stage in Hunter, then section 20(1) will have to be measured against it. And the puny new defence of fair and reasonable publication in section 26, is likely to be overpowered by the development – driven by the Constitution and the Convention – of a public interest defence and new species of qualified privilege.

Of course, these are only prospects, even if they are open on the text of the Act as it stands. But they are still worthy of consideration, and they demonstrate that the Act raises as many questions as it has answered.