The Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) was before the Seanad again during the week. In my next post, I’ll consider some of the points made during that debate; in this post, by way of background, I want to set out the Bill’s main provisions. It aims to modernise Irish defamation law, and it is certainly an advance on what is there now. However, it is still ungenerous, and it remains to be seen whether its passage through the Houses of the Oireachtas will improve it (or, God help us, not!).
The Bill proposes to:
– remove the distinction between libel and slander (s5(1)) and provide a statutory definition of defamation (ss5(2) and 2);
– require a plaintiff to swear an affidavit verifying the facts which demonstrate the defamation (s7);
– provide for a quick determination of issues relating to the meaning of the words complained of (s13);
– allow defendants to issue apologies without admitting liability (s22) and to make lodgments in court as they can in other civil actions (s27);
– provide for a Correction Order (s28) and a fast-track Declaratory Order (s26);
– give the court more power to control damages, especially on appeal (s29);
– recast the tort of malicious falsehood (s41) and abolish the crime of libel (s34) and replace it with a much narrower offence of publication of gravely harmful statements (s35);
– provide for a one-year limitation period with a further discretionary one-year
– establish a Press Council (s43; Sch 2); and
– reform defences (Part 3; ss14-25), including the introduction of a completely new defence of fair and reasonable publication (s24(1)).
For all that it is better than the current position, the drafting in many of the sections is often more ungenerous than it might have been:
– the removal of the distinction between libel and slander is hamfisted (rather than clearly abolishing the distinction, it merely says that libel and slander shall â€œbe collectively described, and are referred to in this Act, as the â€˜tort of defamationâ€™â€?);
– the splitting of the definition of defamation between two sections is more awkward than it needs to be;
– the fast-track declaratory order is available only in the High Court (a plaintiff â€œmay apply to the High Court for an order â€¦â€?) and not in the Circuit Court, which rather defeats the purpose;
– the list of factors which may be taken into account by the High Court in the determination of damages does not include the extent to which reasonable care was exercised by the defendant in attempting to ascertain the truth of any allegation of fact prior to the publication in question, which seems to me a startling and paltry omission;
– the defences are terribly narrowly cast (especially qualified privilege, and innocent publication);
– in particular, the defence of fair and reasonable publication simply states too many hurdles. It requires publication (i) in good faith, (ii) in the course of, or for the purposes of, the discussion of a subject of public importance, (iii) the discussion of which was for the public benefit, where, in all the circumstances of the case, it was (iv) fair and (v) reasonable to publish the statement. On the one hand, the various hurdles all seem the same, with various synonyms expressing the same basic point, that the publication must have been fair and reasonable. With that there can be no cavil. But every word in a section means something, and if it is said five times, itâ€™s not the same thing being said five times for emphasis, but five different things. The publication will therefore have to be all five, and that seems to me to set far too high a standard;
– and the Bill is fixed on a print-based mindset, ignoring internet issues, such as those relating to the defence of innocent publication or the definition of periodical.
Careful what you wish for – I have long argued that Irish defamation law is in need of modernisation. Now, I’m about to have that wish come true, and I’m still not happy! Typical. But that list of problems is quite serious. I hope that the most egregious of them can be dealt with as the Bill slopes its way through the Oireachtas on its way to eventual enactment.
Update (21 March 2007): Many of the points raised here did not feature in the Seanad debate, but an amendment to widen the scope of the declaratory order was rejected: see 186 Seanad Debates cols 792 (6 March 2007) (html | pdf).
7 Reply to “Defamation Bill slopes towards enactment”
Why does the five-part test for fair and reasonable publication set too high a standard ?
Thanks, Fergus, for the comment. It is a fair question. I think the five-part test for fair and reasonable publication sets too high a standard simply because it is a *five* part test – each of the five parts individually isn’t objectionable, but when you put all five together, it creates a potential minefield.
I can foresee, for example, the assertion that although “good faith” and “fair” and “reasonable” seem synonymous, nevertheless, because they all appear in the section, they must mean separate things, with the result that a court could easily come to the conclusion that something may have been, say, published in good faith, but not fair and reasonable. For my own part, I would have used either “good faith” or “reasonable” in the section, but not both and certainly not three separate tests for the same issue.
Similarly, I can foresee, for example, the assertion that although “public importance” and “public benefit” seem synonymous, because they both appear in the section, they must mean separate things, with the result that a court could easily come to the conclusion that something may have been, say, of public importance but not of public benefit. For my own part, I would have used one formula or the other in the section, but not both.
In principle, I think that the defence should simply focus on reasonable publication in the public interest, and the addition of other synonyms for either element has too great a potential to cut down its scope. Too many hurdles, interpreted narrowly, create too many obstacles to the establishment of the defence. And I think in principle that this kind of defence ought to be interpreted purposively and broadly. My fear is that the current text of the defence of fair and reasonable publication (in s24(1) of the Bill) is so hedged that it invites the kind of narrrow and rigid parsing that is likely to render it dead on arrival, a statutory dead letter even on the day of its enactment.
The narrowing of the similar Reynolds defence (see Reynolds v Times Newspapers  UKHL 45 (28 October 1999)) in the Court of Appeal was emphatically reversed recently by the House of Lords in Jameel (see Jameel v Wall Street Journal Europe  UKHL 44 (11 October 2006). There, the House of Lords emphasised that responsible journalism is of the essence of this kind of defence of publication in the public interest, which arises if (i) there is a real public interest in communicating and receiving the information, and (ii) the publisher has taken the care that a responsible publisher would take to verify the information published. But they also emphasised that parsing this test in a narrow and rigid manner would defeat its object. Indeed, Minister McDowell, in his speech commencing the Second Stage of the Bill in the Seanad last December (see 185 Seanad Debates cols 1050-1051 (6 December 2006) html | pdf), drew the analogy with Reynolds and Jameel. I fear that he is mistaken that s24(1) somehow replicates them as a matter of Irish law. Certainly, it is intended to introduce a defence similar to that in Reynolds, but in its small-minded and pettifogging insistence on too many hurdles, it more nearly resembles the constricted approach to Reynolds rejected in Jameel than it does the approach articulated in Jameel. That case establishes a defence of reasonable publication in the public interest; but s24(1) fails to do so.
As you may know, Eoin, I believe that we need to tighten, not loosen, the media laws, taken in the round. (That last phrase is intended to signify my recognition that some of the current law is unreasonably restrictive.) I disagree with the thrust of your argument here, but I do not believe that comments to comments is a suitable way to have a debate. I will therefore either post on my own website, or else take this discussion to the IrishLaw e-mail list (open to all, folks, from http://www.irishlaw.org – no relation, by the way). Yet more parenthetically still, I really think Usenet is the ideal medium for such debate.
Just out of curiosity to one on the other side of the pond (and a total novice when it comes to Irish law), doesn’t this run afoul of the constitutional requirement allowing people to voice their own opinions?