In Watters v Independent Star [2010] IECC 1 (03 November 2010), the first reported judgment on the Defamation Act, 2009 (also here), Matthews J granted the plaintiff a declaratory order pursuant to section 28 of the Act (also here) that an article published by the defendant was defamatory, and he made a further order pursuant to section 33 of the Act (also here) prohibiting the newspaper from re-publishing the defamation.

In an earlier post (also here), I have already looked at some issues arising from this decision. Another critical aspect of Matthew J’s judgment was that, although the plaintiff was a convicted criminal, he nevertheless possessed a residual reputation which was damaged by the newspaper’s allegations. Of course, evidence of a plaintiff’s general bad reputation is admissible in evidence in mitigation of damages (see section 31(4)(g) and section 31(6)(a) of the Act (also here); see also Hill v Cork Examiner Publications [2001] 4 IR 219, [2001] IESC 95 (14 November 2001) and the recent decision of Tugendhat J in Hunt v Evening Standard [2011] EWHC 272 (QB) (18 February 2011)). However, this is a long way from saying that such a general bad reputation renders a plaintiff libel-proof. Moreover, the plaintiff in Watters did not seek damages, but rather sought and obtained a declaratory order and an injunction.

Section 33 of the 2009 Act allows the court to make interim, interlocutory or permanent orders prohibiting the publication or further publication of the defamatory statement in respect of which the application was made, and it was on foot of that section that Matthews J granted a permanent injunction restraining re-publication of the defamation. In my earlier post, I considered its applicability in the context of interim and interlocutory applications; and I argued that, in much the same way as the previous common law had been, section 33 had to be interpreted in the light of the protections of freedom of expression by the Constitution and the European Convention on Human Rights. In particular, since such a temporary injunction constitutes a prior restraint upon speech, applications for interim or interlocutory injunctions in defamation cases must be scrutinised with particular care.

In principle, such considerations derived from the Constitution and the Convention should also be in play when – as in Watters – an application is made under section 33 for a permanent injunction as a remedy for defamation. In the US, it has been argued that a permanent injunction imposed after trial nevertheless amounts to a prior restraint upon any subsequent speech. However, the courts have held that injunctions against certain statements based on a finding on the merits that those particular statements are defamatory effectively do not amount to prior restraints and are therefore not presumptively unconstitutional (see Balboa Island Village Inn v Lemen 156 P 3d 339 (Supreme Court of California, 2007); St James Healthcare v Cole 2008 MT 453 (Supreme Court of Montana, 2008); Hill v Petrotech Resources Corp (Supreme Court of Kentucky, 21 October 2010) (blogged here on the Volokh Conspiracy)). These cases demonstrate the confusing doctrinal consequences of the US rule against prior restraints. A final order prohibiting future publication is indeed a prior restraint upon that future speech; it would be better if the US cases accepted that rather than denying it; but they would then have to go on and hold that the full trial establishing the defamatory nature of the publication overcomes the presumption against prior restraint.

By contrast, the approach to prior restraints in Ireland, influenced by the Convention, is much more nuanced, and it does not run into the same doctrinal problems justifying a section 33 permanent injunction as a remedy after trial in defamation cases. Even if a permanent injunction does indeed constitute a prior restraint upon future speech, and thus a restriction upon the right to freedom of expression protected by the Constitution and the Convention, the question would not be whether the constitutional presumption against prior restraint has been overcome, but whether, after a close and penetrating examination of the facts, the permanent injunction is a necessary and proportionate restriction upon that right. In the circumstances of Watters v Independent Star, this test would almost certainly have been satisfied, but it may nevertheless be worth a future defendant’s while taking the point. However, given the recent demise of the Star on Sunday, it won’t be that defendant.

Some orders have been made on foot of the Defamation Act, 2009 (also here) – see, for example, Lowry v Smyth (background here and here; coverage of the order here), Mellon v Associated Newspapers (coverage here), and Meegan v Associated Newspapers (coverage here) – but Watters v Independent Star [2010] IECC 1 (03 November 2010) remains the only reported judgment on provisions of the Act. In that case, the newspaper had published an article headlined Larry’s Secret Shower Buddy, purporting to expose a a “seedy”, “weird”, “bizarre” and “secretive” homosexual relationship in prison between the plaintiff Barry Watters and Larry Murphy, a notorious criminal who had been convicted of rape and attempted murder. Matthews J held that the plaintiff had a residual reputation which was damaged by the newspaper’s allegations. He therefore granted the plaintiff a declaratory order pursuant to section 28 of the 2009 Act (also here) that the article was defamatory, and he made a further order pursuant to section 33 of the 2009 Act (also here) prohibiting the newspaper from re-publishing the defamation. Nevertheless, the newspaper repeated the defamation: in an article alongside a photograph of Watters the newspaper had stated:

We may have to apologise to this revolting pervert but will we mean it? Hell no.

As a consquence, the newspaper was fined 40,000 euros for contempt of court (can anyone tell me whether this fine was paid before the Irish Daily Star on Sunday is to ceased publication?). Moreover, the judge ordered that a fair summary of the earlier judgment in which he found that the applicant had been defamed be published by the newspaper with equal prominence to the layout of the original defamatory article. The facts are sensationalist, but they raise an important issue of legal principle relating to section 33 of the 2009 Act, which allows the court to make interim, interlocutory or permanent orders prohibiting the publication or further publication of the defamatory statement in respect of which the application was made.

The issue of injunctions in defamation cases is a fraught and controversial one. This is particularly so in the context of interim and interlocutory injunctions. However, as recent US cases have demonstrated, difficult issues can also arise in the context of permanent injunctions to restrain the republication of defamatory comments of the kind sought, awarded and breached in Watters. In this post, I want to look at interim and interlocutory injunctions; and I will return to the question of permanent injunctions in a future post. Read the rest of this entry »

In the aftermath of the attempted assassination of Representative Gabrielle Giffords and the murder of six other people in Arizona last week, a fierce debate has broken out over the heated political rhetoric – often coarse, martial, and vitriolic – that is now distressingly commonplace in US political discourse. The specific background is a map which appeared on Sarah Palin’s website targeting the seats of political opponents – including Rep. Giffords – in rifle-sight cross-hairs, and which has therefore focussed signficant attention on Palin’s confused response to the tragedy. Of course, politicians and pundits across the political spectrum have used such language and imagery, and the issues of principle arise in the context of the general standard of debate rather than in the context of any particular politician, pundit or party. I want in this post to set out some of the general free speech arguments that I have come across since Saturday. Read the rest of this entry »

The title of this post is taken from the third paragraph of Milton’s Areopagitica. As I commented in an earlier post, one of the classic liberal justifications for freedom of expression was stated by John Milton (pitctured left) in his Areopagitica – A Speech for the Liberty of Unlicenc’d Printing, to the Parlament of England. According to The Writer’s Almanac with Garrison Keillor (with added links):

It was on this day in 1644 that John Milton published a pamphlet called Areopagitica, arguing for freedom from censorship. He said,

I wrote my Areopagitica in order to deliver the press from the restraints with which it was encumbered; that the power of determining what was true and what was false, what ought to be published and what to be suppressed, might no longer be entrusted to a few illiterate and illiberal individuals, who refused their sanction to any work which contained views or sentiments at all above the level of vulgar superstition.

He compared the censoring of books to the Spanish Inquisition and claimed that the government wanted “to bring a famine upon our minds again.” Read the rest of this entry »

Earlier this week, I had the great good fortune to attend an enjoyable lecture presented by the, Long Room Hub, Trinity College Dublin. It was

Blasphemy: Historical anachronism or modern crime?

by Professor David Nash, Department of History, Oxford Brookes University, UK. He is the author of Blasphemy in Modern Britain 1789-present (Ashgate Publishing, 1999 | Amazon) and Blasphemy in the Christian World (Oxford University Press, 2007 hbk; 2010 pbk | Amazon | cover left). His talk was in three parts: the historical context; the unhappy fit with current models and theories of human development; and the implications of taking blasphemy seriously again.

First, he used the historical context to illustrate the various reasons for longevity and adaptability of concepts of blasphemy. In ancient Greece, blasphemy consisted of speaking ill of the gods and of disturbing the peace. In early Christian dogma after the Council of Nicea in AD 325, it served to reinforce the virtues of orthodoxy. Medieval Christian Europe saw blasphemy as an element of heresy, but in the 13th century, blasphemy becomes decoupled from heresy, and it evolves into what Nash charaterised as the ‘passive blasphemy’ model, where the definition and enforcement of blasphemy is a matter for the State, seeking to eradicate states of mind and opinion that are dangerous to the community. For a member of the community to know that a blasphemy has taken place is to see a threat to the survival of the community; the individual is in peril from being in the presence of the blasphemer; and to permit it to go unpunished is to court divine retribution. Read the rest of this entry »

Fine Gael’s new policy document “Reinventing Government” will no doubt keep a lot of political debates (and perhaps even fires) burning during the long cold November nights, and I look forward to the heat thereby generated. Quick off the mark was Ninth Level Ireland with a summary of its proposals on universities. Glancing through it, I was also taken by two aspects of its list of “Quangos to be abolished” in Appendix 1, one inclusion and one omission. The inclusion is this:

Department of Justice and Law Reform

… Merge Censorship of Publications Board and Office of Film Censor and Irish Film Classification Office into single Censorship Office.

Merge Censorship of Publications Appeals Board and Censorship of Films Appeal Board into single Censorship Appeals Office. …

I can understand why a classification system for movies and computer games is felt to be necessary, but I am at a loss to understand the need for prior restraint upon print publications, and I would therefore achieve the desired savings simply by abolishing the Censorship of Publications Board and Censorship of Publications Appeals Board altogether. Read the rest of this entry »

In Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times successfully resisted an attempt by the Mahon Tribunal to compel the Editor and Public Affairs Correspondent of the Irish Times to disclose the source of a leaked Tribunal document. However, in Mahon Tribunal v Keena [2009] IESC 78 (26 November 2009) (to which I will refer as Mahon Tribunal v Keena (No 2)), the Court held that the journalists should pay the Tribunal’s costs of more than €600,000.

In yesterday’s post, I argued that this was illogical: if the journalists had a privilege to with-hold the document and decline to answer the questions, then they had the privilege, and it doesn’t matter what they did with the document, and taking objection to its destruction by the journalists is neither here nor there. However, even if this might provide some justification for some punishment of the journalists, nevertheless, the European Court of Human Rights is very likely hold that this punishment is inconsistent with Article 10 of the European Convention on Human Rights. A crucial case in this respect is Cumpana and Mazare v Romania 33348/96, (2005) 41 EHRR 14, [2004] ECHR 692 (17 December 2004), where the Court held that although some penalty would have been appropriate, disproportionately severe sanctions infringed the applicant journalists’ Article 10 rights. Read the rest of this entry »

Judith Miller published a story which, among other things, named Valerie Plame as a CIA spy. In later grand jury proceedings, Miller declined to name her source, despite a decision of the DC Circuit Court of Appeals that she had to do so, and spent 85 days in prison for her troubles. In truth, both Plame and Miller were pawns in a bigger game being played by the White House, but a lawsuit by Plame against members of the Bush administration was dismissed. In the meantime, Plame wrote a memoir about the affair: Fair Game. My Life as a Spy, My Betrayal by the White House (cover left) (Amazon | Simon & Schuster) but she was prevented by the CIA from writing about various aspects of her employment with them. The US Court of Appeals for the Second Circuit held (pdf) yesterday that this restriction did not infringe her First Amendment right to free speech.

When she joined the CIA, she signed a standard form secrecy agreement in which she agreed never to disclose classified information which she obtained in the course of her employment, and to submit publications which could do so to the CIA for pre-publication review, and – in Wilson v CIA – the Second Circuit Court of Appeals upheld the CIA’s refused to allow her to disclose her dates of service and other information relating to her employment before 2002.

For the Second Circuit, it was settled law that a system of pre-publication clearance is not a prior restraint in the classic sense, and that when a government employee voluntarily assumes a duty of confidentiality, restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public, so that once a government employee signs an agreement not to disclose information properly classified pursuant to executive order, that employee simply has no first amendment right to publish such information.

This leading authority in favour of this position is Snepp v United States 444 US 507 (1980) (FindLaw | Justia | Oyez) (Frank Snepp’s site), which in many ways is similar to the decision of the House of Lords in Attorney General v Blake [2001] 1 AC 268, [2000] UKHL 45 (27 July 2000). In Snepp, the US Supreme Court upheld the validity of pre-clearance agreements relating to classified material and held that a former CIA employee breached not only such an agreement but also a fiduciary obligation when he published a book about CIA activities without submitting his manuscript for pre-publication review, and the proceeds of the publication were impressed with a constructive trust in favour of the Government. Plame did not put Snepp in issue, and merely sought to argue instead that the material which she wished to publish was no longer properly classified. These largely factual arguments failed; Raggi J for the Court held that the

plaintiffs’ disclosure of the information presently censored by the CIA … would facilitate the identification of particular intelligence sources and methods, thereby compromising the Agency’s ability to use such sources and methods in the future. … In sum, the CIA has advanced “good reason” to maintain any pre-2002 Agency service by Ms. Wilson as classified and to prevent the inclusion of such information in her memoir. …

Because we reject plaintiffs’ argument that no good reason supports the CIA’s maintenance of Ms. Wilson’s pre-2002 dates of Agency service as classified, and because we have already determined that this information has not been officially disclosed by the CIA, we necessarily conclude that plaintiffs’ First Amendment challenge to defendants’ redactions to Fair Game fails as a matter of law. Ms. Wilson – like every other current and former Agency employee who has signed a Secrecy Agreement – “simply has no first amendment right to publish” the information here at issue, regardless of how “public” her past activities appear to have become …

Update (2 March 2011): the book is now a major motion picture (as all the best Hollywood adverts say) starring Naomi Watts as Valerie Plame and Sean Penn as her husband, Joe Wilson. It was Wilson’s article in the New York Times, claiming that the Bush administration had manipulated intelligence about Saddam Hussein’s weapons programs to justify an invasion of Iraq, that was the reason why the White House leaked Plame’s identity as a CIA agent.