Category: 2016-17 Reform

Libel cases in England and Wales are “better off without juries”, according to Sir Mark Warby, the High Court judge with responsibility for the Media and Communications List of the Queen’s Bench Division. As reported yesterday in the Brief, the legal newsletter of The Times, he was speaking on Tuesday at the London conference of the Media Law Resource Centre, an American organisation. He said that he “does not regret the passing of the jury at all”, and he pointed out (pdf) that there are many advantages to the “virtual abolition” of juries in defamation cases:

It has removed the territorial disputes that quite often used to arise, over whether a given issue is within the province of the judge, or that of the jury. In addition, this reform has all but eliminated the practice of arguing the same point to different threshold standards on different occasions. It is now possible for many more cases to reach a final resolution more economically by early judicial decisions on key issues of fact, or mixed issues of law and fact.

In England and Wales, section 11 of the Defamation Act 2013 provides that defamation actions are to be tried without a jury unless the court orders otherwise. It is interesting to see the judge in charge of the relevant list welcome this development so warmly; and it is a reform I think that Irish law could with profit adopt, not only for the reasons of efficiency which Sir Mark provides, but also because it could contribute to the reduction of high damages awards. It is a matter I have already recommended (pdf) to the review of the Defamation Act 2009 (also here) currently being conducted by the Department of Justice. Indeed, as the submission (pdf) from the Department of Communications, Climate Action and the Environment to that process observed:

Among the most pressing difficulties … with defamation action jury trials are:
• The unpredictability of juries;
• The high level of damages that they may award;
• The length of the trial period creating an increased costs in jury trials; and
• The complexity of the law in relation to a jury trial.

The level of damages in defamation cases remains a concern to the media sector and to stakeholders. A trial by jury increases legal costs and lengthens the time of each case.

That submission recommended that the lead in England and Wales be followed, as did the Department of Journalism (pdf) in the School of Media, Dublin Institute of Technology, the Business Journalists’ Association(pdf), Google (pdf), MGN (pdf), NewsBrands Ireland (pdf), and Ronan Daly Jermyn (pdf).

The submission (pdf) from Independent News and Media pointed out that jury trial in defamation cases “is also out of line with other civil law cases where juries are not used”, and recommended their abolition, without any reference to the power of the court to decide otherwise. Local Ireland (the promotional brand of the Regional Newspapers and Printers Association of Ireland) made a similar submission (pdf), as did Kieran Fitzpatrick (pdf), and the Public Relations Institute of Ireland (pdf).

The Irish Times recommended (pdf) the abolition of juries in defamation cases, if not generally, then at a minimum in the determination of damages, as did Michael Williams (pdf) and the Press Council (pdf).

On the other hand, Johnsons Solicitors (pdf) firmly recommended that the presumption in favour of a jury trial should be retained in High Court cases; and other solicitors who responded to the Law Society’s call for comments also recommended (pdf) that juries be retained, as they are best placed to assess impact and also act as a deterrent to the more extreme excesses of the media.

If the jury is to be retained, then the Bar Council (pdf), the Joint Oireachtas Committee on Justice and Equality (pdf), McCann Fitzgerald (pdf), the National Union of Journalists (pdf), RTE (pdf), and William Fry (pdf), all recommended that, having regard to the decision of the Court of Appeal in Higgins v Irish Aviation Authority [2016] IECA 322 (04 November 2016), the jury should not be included in the offer of amends procedure in sections 22 and 23 of the 2009 Act (also here and here).

So, many views have been submitted to the Department, with the usual suspects making the usual arguments: media organisations and their lawyers arguing against juries, with plaintiffs’ lawyers arguing in favour. What’s most striking to me, though, is that the more disinterested observers also argue for the abolition of juries in defamation cases. And their views are reinforced by Warby J’s comments. On balance, therefore, I think that it’s time to abolish juries in defamation cases; (here’s how); and I hope that the current review will do just that.

Section 26 of the Defamation Act 2009 (also here) introduced a new defence of fair and reasonable publication into Irish defamation law. In Meegan v Times Newspapers Ltd [2016] IECA 327 (09 November 2016) Hogan J for the Court of Appeal (Finlay Geoghegan and Peart JJ concurring) explained that the

section is clearly designed to provide a defence for publishers who show that they acted bona fide and that the publication was fair and reasonable having regard, in particular, to the matters set out in section 26(2) of the 2009 Act. Section 26 may be regarded as an endeavour by the Oireachtas to move away in some respects from the strict liability nature of the common law tort of libel and to introduce – in, admittedly, some specific and limited respects – a negligence based standard in actions for defamation under the 2009 Act. ([2016] IECA 327 (09 November 2016) [10])

For all that section 26 is a centre-piece of the reforms worked by the 2009 Act, it is, in my view, a legislative dead letter. It is over-complex, placing far too many hurdles in the way of a successful invocation. Meegan illustrates the point. The plaintiff garda claimed that she had been defamed by the defendant’s allegations that she had supplied sensitive information to a paramilitary group. The defendant pleaded the defence of fair and reasonable publication; and the High Court ordered discovery of the journalist’s notes and other background material relevant to article ([2015] IEHC 696 (06 November 2015)). The Court of Appeal reversed, on the grounds that it was

premature to assess whether the discovery sought is genuinely necessary for the proper conduct of this litigation, at least until the scope and extent of the section 26 defence is clarified and particulars of the facts proposed to be relied upon by the defendant in support of that defence are duly ascertained, whether by further pleading or by particulars. ([2016] IECA 327 (09 November 2016) [18] (Hogan J) (emphasis added)).

Although from the context, it is clear that Hogan J meant that the scope and extent of the section 26 defence that needed to clarified were the scope and extent of the defence as pleaded on the facts, such that clarification could be forthcoming following delivery of particulars, in my view the lack of clarity as to the scope and extent of the defence must have been contributed to in no small part by the complexity and opacity of the terms of section 26 itself. A simpler, clear, statutory statement of the defence would have made for less ambiguity in what the defendant was relying upon and what the plaintiff could seek by way of discovery. There are so many hurdles in section 26 that it was not clear what the defendant was relying on. This raises very serious questions about the workability of the defence.

By way of contrast, in England and Wales, section 4 of the Defamation Act 2013 introduced a similar defence of publication on matter of public interest; it is in much simpler terms; and it was successfully invoked for the first time in Economou v de Freitas [2016] EWHC 1853 (QB) (27 July 2016). In this post, I want to discuss that case, and to present that defence as a template for the reform of the defence of fair and reasonable publication in the 2009 Act.

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The Tánaiste and Minister for Justice and Equality is conducting a review of the operation of the Defamation Act 2009 (also here). No doubt the focus of media submissions will be the level of damages, and exhibit A in those submissions will unquestionably be the decision of the Supreme Court in Leech v Independent Newspapers [2014] IESC 79 (19 December 2014). A report published today by the International Press Institute provides an excellent statement of the argument. In this post, I want to summarize and respond to some of the issues in the Report, and make three practical suggestions for reform of the law of defamation relating to damages.

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The Tánaiste and Minister for Justice and Equality has announced a review of the operation of the Defamation Act 2009 (also here), and is now inviting contributions and submissions by 31 December 2016. This is excellent news.

According to the announcement on the Department’s website, the aim of the review is:

– to promote an exchange of views and experiences regarding the operation in practice of the changes made by the 2009 Act,

– to review recent reforms of defamation law in other relevant jurisdictions,

– to examine whether Irish defamation law, and in particular the Defamation Act 2009, remains appropriate and effective for securing its objectives: including in the light of any relevant developments since 2009,

– to explore and weigh the arguments (and evidence) for and against any proposed changes in Irish defamation law intended to better respond to its objectives, and

– to publish the outcomes of the review, with recommendations on appropriate follow-up measures.

Interestingly, the review excludes the blasphemy provisions of the Act (sections 36 and 37), because the issue will be the subject of a constitutional referendum, as provided in the Programme for a Partnership Government. Moreover, the review will take into account any relevant recommendations of the recent Report of the Law Reform Commission on Harmful Communications and Digital Safety.

The Press Council of Ireland welcomed the review and confirmed that it will be making a submission, as has NewsBrands Ireland, the representative body for national newspapers. Similarly, the NUJ told the Irish Times that the “review should be seen as a welcome step for all citizens. It must be a review aimed at enhancing freedom of expression rather than simply a means of reducing defamation costs”. Shane Phelan, in the Irish Independent, also welcomed the

… long-overdue review of Defamation Act, amid continuing concern the size of libel awards in Ireland are having a chilling effect on the media’s role as a watchdog for the public.

This is not the first time that an INM title has argued that the 2009 Act has brought about only limited changes. NewsBrands regularly make a similar point. Both arguments are bolstered by reference to the €1,250,000 damages award in Leech v Independent Newspapers [2014] IESC 79 (19 December 2014). However, although libel damages are indeed still high, this focus is misconceived. That case was decided on the basis of the law as it applied before the Defamation Act 2009, which introduced a whole range of reforms to meet the concerns expressed by INM and NewsBrands. Their arguments would be stronger if they focussed on the reality of the application of the Act and not on an objectionable outcome produced by the unreformed pre-Act common law.

The review is indeed long-overdue, and much to be welcomed. But arguments against the pre-Act law by those who are advocating for further reform do their case no favours. Instead, I hope that the submissions make strong arguments in favour of coherent and effective reform of our libel laws.

1. Introduction
The decision of Binchy J in Muwema v Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) demonstrates that, on the question of the liability of internet intermediaries for defamatory posts on their platforms, an important part of the answer is provided by application of the defence of innocent publication provided in section 27 of the Defamation Act 2009 (also here).

Binchy J granted a Ugandan lawyer a Norwich Pharmacal order requiring Facebook to identify the holder of a pseudonymous account which, the lawyer alleged, contained posts that were defamatory of him. However, Binchy J declined to grant injunctions requiring Facebook either to remove allegedly defamatory posts from the account or to prevent the material in them from being re-posted, on the grounds that Facebook could rely on the defence of innocent publication in section 27 of the 2009 Act and on the hosting immunity conferred by Regulation 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 (SI No 68 of 2003) (transposing Article 14 of the e-Commerce Directive Directive 2000/31/EC into Irish law).

He came to that conclusion, especially as regards section 27, with some unease, and he doubted very much if that consequence was intended by the Oireachtas ([65]). If his doubts are well founded, then the Oireachtas has it its power to amend the section to come into line with its intentions. In my previous post, I considered the issues in Binchy J’s judgment other than the availability of those defences. In this post, I will first consider the defence of innocent publication in section 27; I will then consider the hosting immunity in Regulation 18; and I will finally consider whether it is necessary to reform either or both of those provisions. (more…)

In Northern Ireland, the Minister for Finance has just published a Review of the Law of Defamation, prepared for it by Andrew Scott (Associate Professor of Law, LSE). Prof Scott had prepared a consultation paper for the Northern Ireland Law Commission (NILC) in November 2014. The consultation period closed on 20 February 2015. The NILC itself closed on 31 March 2015. So Prof Scott’s final Report (pdf) was submitted directly to the Ministry for Finance, which has just published it. The Report builds on the work of the NILC, draws on the consultation responses that it received, assesses the recent experience of the law of defamation in England and Wales under the Defamation Act 2013, and sets out recommendations for reform of the law of defamation in Northern Ireland. Most of the recommendations require legislation by the Northern Ireland Assembly, so a Bill to this effect is included as Appendix 1 to the Report. A second draft Bill that would merely emulate the 2013 Act in Northern Irish law is included as Appendix 2.

The Report recommends that, to a significant extent, measures equivalent to the provisions of the 2013 Act should be introduced into Northern Irish law. However, one of the substantial changes from the 2013 Act relates to the proposed new defence of honest opinion. In section 3 of the 2013 Act, the defence of honest opinion is as follows:

(1)   It is a defence to an action for defamation for the defendant to show that the following conditions are met.

(2)   The first condition is that the statement complained of was a statement of opinion.

(3)   The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.

(4)   The third condition is that an honest person could have held the opinion on the basis of—

(a)   any fact which existed at the time the statement complained of was published;
(b)   anything asserted to be a fact in a privileged statement published before the statement complained of. …

The Report recommends that a drafting error be corrected, and that the section should be substantively amended in two further ways

• it should be possible for a publisher to rely not only on true underpinning facts or privileged statements as the basis for his or her opinion, but also on “facts” that he or she “reasonably believed to be true at the time the opinion was published”. This expands the defence, especially so as to defend the position of social media commentators …
• it is recommended that it be made clear that the defence extends to cover “inferences of verifiable fact”. This is intended to clarify an aspect of the defence that is agreed to be the current law by many legal commentators, but on which there remains a measure of uncertainty in English law …

In Ireland, section 20 of the Defamation Act, 2009 introduced a similar defence of honest opinion, but required that the opinion relate to a matter of public interest (section 20(2)(c)). Given that there is a public interest defence elsewhere in the 2009 and 2013 Acts, there is no need for a public interest requirement in the defence of honest opinion. The Irish section should be amended to come into line at least with the 2013 Act, if not with the NI proposals. Their publication today is very welcome indeed, and Prof Murray is to be commended for his excellent Report. The Irish Act is in need of revision, but none is envisaged in the Government’s Legislation Programme (pdf). Nevertheless, a review of the operation of the 2009 Act is due, and it is to be hoped that the English experience of the 2013 Act and the Northern Ireland Report will be taken into account – in particular, to make the defence of honest opinion workable.

Today is World Press Freedom Day. The UN/UNESCO Declarations on Promoting Independent and Pluralistic Media were adopted on 3 May 1991, at a seminar on Promoting an Independent and Pluralistic African Press, held in Windhoek, Namibia, from 29 April to 3 May 1991. Article 1 provides (with added link):

Consistent with article 19 of the Universal Declaration of Human Rights, the establishment, maintenance and fostering of an independent, pluralistic and free press is essential to the development and maintenance of democracy in a nation, and for economic development.

On foot of a recommendation (pdf; see proposal II.B, p2) from UNESCO, on 20 December 1993 the UN General Assembly adopted (pdf; see p29) 3 May, the anniversary of the Declaration of Windhoek, as World Press Freedom Day.

To mark the day, President Michael D. Higgins toay issued a statement highlighting the crucial role of the media, and of the fundamental principles of media freedom, pluralism and independence, in democratic societies:

This year, 100 years since the momentous event of the 1916 Easter Rising, we are reminded of the importance of a free and democratic society and of the central role that journalism must play in the quest for a full and accountable democratic republic.

Press freedom and the right to information have a direct relevance to achieving the vision of a true Republic. … Today, let us strengthen our resolve to defend the rights of a free press and let us celebrate the possibilities of quality journalism as we build an inclusive society to the benefit of all.

Similarly, Thorbjørn Jagland, Secretary General of Council of Europe, called upon the 47 Council of Europe member states to make sure that their national legislation on defamation does not lead to self-censorship of the media and does not weaken public debate. There have been similar calls in the Irish media today (Herald | Irish Independent here and here | Irish Times). I would be the first to argue that Irish defamation law is in need of reform. But I think that the central example put forward in those reports simply does not make the case. (more…)

All four jurisdictions in Great Britain and Ireland have engaged in reforming defamation law over the last decade. The Republic of Ireland and England and Wales have already enacted new Defamation Acts, while the Northern Irish and Scottish Law Commissions are currently working on reform proposals. Indeed, the Irish Law Reform Commission has recently been invited by the Attorney General to consider a very net issue relating to defamation law and court reporting.

Against this backdrop, the Private Law Discussion Group in the School of Law, Trinity College Dublin, will host a public event on defamation law reform in Great Britain and Ireland, from 17:30 to 19:00 on Friday 1 April in Neill Theatre, Trinity Long Room Hub, Trinity College Dublin (map).

The group is delighted to welcome Dr Eric Descheemaeker (pictured above left), of the School of Law, University of Edinburgh, who will examine selected provisions of the Irish Defamation Act 2009 (also here) against the wider background of defamation reform in the British Isles. The common substrate of these four systems makes it especially interesting to compare their approaches on a number of issues. Dr Eoin O’Dell, of the School of Law, Trinity College Dublin, will then respond to the issues raised in Dr Descheemaeker’s analysis. There will be an opportunity for discussion following the two presentations.

Dr Descheemaeker is Reader in European Private Law at the University of Edinburgh and has published widely on defamation law. He joined the School of Law in Edinburgh in 2011. Prior to that, he was Fellow and Tutor in Law at St Catherine’s College, University of Oxford (2004-09) and then Lecturer in Law at the University of Bristol (2008-11). His broad fields of interests are the law of obligations (in particular delict/tort), comparative law (especially English law, French law and mixed legal systems) and Roman law. He is is director of the Edinburgh Centre for Private Law, and of the LL.M. in Comparative and European Private Law. The main focus of his current research concerns the protection of personality rights, in particular the law of defamation and privacy. In 2011 he was awarded a Leverhulme Research Fellowship for a project on “Reconstructing the Law of Defamation”.

Dr O’Dell is an Associate Professor at Trinity College Dublin and was a member of the Legal Advisory Group on Defamation whose Report resulted in the Defamation Act 2009.

Attendance at the event is free, but booking – via Eventbrite, here – is essential.