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The Irish Defamation Act, 2009

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties; The Impact of the European Convention on Human Rights over the Defamation Act, 2009.

by Joanne McInerney Solicitor & Notary Public, University College Dublin, December 2012

Introduction

Section 2(1) of the European Convention on Human Rights Act 2003 clearly sets out that there is a legal obligation on Irelands judiciary to have regard to, apply the rules of and implement the human rights as protected under the European Convention on Human Rights,[1] to any statutory provision or rule of law, before it for consideration. Up until the enactment of the 2003 Act,[2] and its core provision under Section 2(1), the European Convention and Irish law had operated as two distinct systems of law and the Irish courts were not obliged to have regard to the European Convention when interpreting or applying any statutory provisions or rules of law. Section 4 of the European Convention on Human Rights Act, 2003 requires that judicial notice shall be taken of the Conventions provisions and of any case law of the European Commission or European Court of Human Rights. It also requires that the courts must when interpreting and applying the Convention provisions, take due account of the principles laid down in those judgements and decisions. [3]

The tort of defamation has now effectively been codified in Ireland by the Defamation Act 2009. This compounded by the domestic courts recognition of the European Convention on Human Rights will impact greatly upon the medias freedom of expression as protected under Article 10 of the Convention[4] and its restrictions under the competing right to ones good name and reputation as protected under Article 8 of the Convention.[5] The 2003 Act does not replace an applicants right to apply to the European Court of Human Rights but seeks to allow an applicant to raise his human rights in all Irish Courts. The 2003 Act, in itself provides for a more interpretive or indirect model of recognition than its UK counterpart in the Human Rights Act, 1998. This may be due to the significant position of the Irish Constitution in Irish law and the fact that many of the Conventions human rights are also inscribed within the Constitution itself. This in effect gives the Irish judiciary more flexibility to interpret and apply the Convention in line with the Defamation Act 2009 and its other domestic laws, as its sees fit.

The Freedom of Expression & the Right to Ones Good Name

By its nature, the tort of defamation is concerned with two fundamental human rights, that of the freedom of expression and the right to ones good name and reputation. Historically, an individuals right to their good name was enshrined by Article 40.3.2 of the Irish Constitution, where the state pledges that it will, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the …good name of every citizen [6] This right to ones good name and reputation has been recognised by the ECtHR in cases such as Pfeifer v Austria[7] as forming part of the right to privacy as protected by Article 8 of the Convention. Freedom of expression, on the other hand, is enshrined by Article 40.6.1 of the Irish Constitution as the rightful liberty of expression [8] and is recognised in Article 10 of the European Convention. The importance placed upon the freedom of expression is set out in Handyside v UK, as an essential foundation of a democratic society [9] and further confirmed in Bowman v UK[10], Castells v Spain[11] and Observer and Guardian v UK.[12] To date, the Irish courts have had few opportunities to interpret and apply the European Conventions compatibility with the recent Defamation Act, 2009 however, it is possible to see trends emerging in judgements emanating from Strasbourg and its influences have been trickling down through to the Irish courts.

In order for an interference with the right to freedom of expression to be tolerated by the European Convention, the interference must under Article 10(2), have a legitimate aim and must be prescribed by law and must be necessary in a democratic society. [13] In justifying an interference with the freedom of expression, the necessity test is often expressed as a requirement that the means employed must be proportionate to the aim pursued or that the restriction should correctly balance the conflicting individual and public interests at stake.[14] In defamation cases in particular, the European Court has always been conscious that in curtailing the rights under Article 10 of the Convention, it may be necessary to do so in order to protect the rights of individual to his good name and reputation as protected by Article 8 of the Convention and vice versa. In doing so, the European Court has always mechanically reasoned its judgements following the margin of appreciation.

Neither Article 8 or 10 of the Convention can have superiority over the other and the European Court of Human Right (ECtHR) and European Commission demand that a fair balance is struck between the these two rights as in Axel Springer AG v Germany.[15] The court in Strasbourg will look to see whether a national court/ authority has used this balance in assessing whether there has been any violation of the human rights as set out in the Convention. The balance of proof falls on the state to prove that a violation hasnt occurred. The ECtHR looks at whether interference has taken place prescribed by law as in Sanoma Uitgevers B.V v The Netherlands,[16] and if so, is there a legitimate aim for this interference with the freedom of expression as in Stoll v Switzerland.[17] If there is no evidence that the national court has had regard to Article 8 or 10, then it is likely that the ECtHR will find against the state as in Independent Newspapers & Media plc and Independent Newspapers (Ireland) Ltd v Ireland[18] and Pedersen v Denmark[19]. For instance, in cases where a state has failed to control its media, the court may well find that there has been a breach of Article 8 of the Convention as in the Alex Springer[20] case.

Article 40.6.1 of the Irish Constitution, in expressing the right to freedom of expression, qualifies this by making same subject to public order and morality. Interestingly, now for the first time, s36 of the Defamation Act, 2009 defines the offence of Blasphemy as the utterance or publication of matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion where the offender intends by the publication or utterance of the matter concerned to cause such outrage.[21] This qualification upon the freedom of expression is also endorsed in Article 10(2) of the European Convention.[22] A defence to this common law offence is available s36(3) of the 2009 act,[23] which seeks to limit the offence, which is in effect an attempt to balance any perceived violation of the individuals right to freedom of expression under this section of the act. A degree of interpretation is allowed for by the Irish courts and also the ECtHR. This is most useful particularly in cases where social values may change over time as in Wingrove v UK[24] and Ozturk v Turkey.[25] It is likely given these safeguards, that s36 of the Defamation Act, 2009 would be interpreted and applied as compatible with the European Convention on Human Rights.

Publication, Identification & The Press Council

A defamatory statement is defined by s2 of the Defamation Act, 2009 Act, as a statement that tends to injure a persons reputation in the eyes of reasonable members of society. This changes the test from the common laws right-thinking members of society and the test becomes a more objective one which focuses on the plaintiffs injury as a result.[26] There have been aspects of the Defamation Act, 2009, that have arguably strengthened the medias freedom of expression. Certain defences are now available under the 2009 Act such as the Offer of Amends or Apology, which may mitigate the starkness of such actions[27] and in so doing strengthen the medias resolve to publish and be damned or to publish and not be so profoundly damned as the case may be. While s11 of the 2009 Act codifies the single publication rule, an attempt is made under s11(2) to limit the medias right to re-publish by allowing a plaintiff leave to apply to bring additional defamation actions, where it is considered in the interests of justice to do so. However, such a proviso could not promote great feelings of protection to an injured plaintiff whose injuries have been aggravated by continuous re-publication, but can be seen as evidence of the legislatures attempts to balance the conflicting rights of Articles 8 & 10 of the Convention. The reduction of the time limit to one year to institute defamation proceedings has been referred to in various Irish judgements and would most likely be deemed compatible with the Convention given the ECtHRs approval of reducing the time period to take such actions as in Times Newspapers Ltd (No. 1 & 2) v UK.[28]

The establishment of the Press Council undoubtedly provides a statutory footing for media regulation albeit, self-regulation. The Code of Good Practice and the Press Council proposes a strong degree of independence and autonomy for a statutory press council and it re-affirms the importance of freedom of expression and freedom of the press while protecting the publics right to full, fair, accurate and balanced reporting.[29] This is a unique feature of the 2009 Act, and what makes it distinctive is that it ties what is fair and reasonable into a Code of Press Ethics and creates a Press Council and Press Ombudsman. There are incentives to signing up to the Press Council and this should be taken into account by the ECtHR. It is self-regulation, however even if one is not a member, the standards still follow. In effect, it grants a form of protection to the responsible journalist as will be further discussed under the writers discussion on Defences below; and by doing so adheres to his right to freedom of expression while on the other hand punishing the work of an irresponsible journalist to protect an individuals rights under Article 8 of the Convention.[30]

Defences

S15 of the Defamation Act, 2009 abolished all the existing defences for defamation at common law. In its place, various revisions and new defences were created to reflect the developing defences for defamation throughout the common law world, [31] together with rulings from the ECtHR such as Mosely v News Group Newspapers[32] and Tolstoy Miloslavsky v UK.[33] S16 of the 2009 Act,[34] effectively changed the common law defence of justification to truth and states that where a statement is generally true, then the truth defence can be relied on as the statement may be true in all material facets. S16 (2) provides that the defence of truth is a complete defence and the plaintiff does not need to prove injury. Similarly, the common law defence of fair comment has been changed to honest opinion under s20 of the 2009 Act. The relationship between fair comment and the freedom of expression has been guarded closely by the ECtHR as in Tse Wai Chun Paul v Albert Cheung.[35] The ECtHR has held in Lingens v Austria,[36] that if a defendant had to prove that his comment was true then this would be a violation of his right to freedom of expression. Under this section, where a statement is made in good faith, then a defendant is not required to prove the truth of his value judgement.

S18 of the Defamation Act, 2009 re-enacts the common law defence of qualified privilege and the categories of statement to which this defence applies are not limited, further extending the rights of a defendant to plead same in his defence as in Hynes-OSullivan v ODriscoll.[37] However, to counter same s19 of said Act will negate such a defence where malice of the defendant can be shown to the court by the plaintiff. As such, the onus is on the plaintiff to establish that the defendant acted with ill-intent as per Roberts v Bass.[38]

Remarkably, s26 of the Defamation Act, 2009 creates a new public interest defence as ruled in many ECtHR cases such as Lingens v Austria,[39] Oberschlick v Austria[40] and Bladet Thomso v Norway.[41] This defence could be interpreted as a codification of the Reynolds common law defence, that the publication must be published in good faith, for the public benefit and in the public interest following the precedent case law from the UK and in Ireland from Hunter v Duckworth[42] and Leech Newspapers.[43] At the time of drafting the Defamation Act 2009, there was a belief that such a defence should be provided for in Irish law as if the statute was silent on same, then a stark violation of Article 10 of the Convention could exist and Ireland would be out of step with other countries that recognised same. S26 of the 2009 Act,[44] balances the right to ones good name and reputation under Article 8 with the right to freedom of expression under Article 10 which in effect provides for responsible journalism. The crux of this defence is in s26(1)(c), where there is a deference to editorial judgement as per the Flood case[45]. What will be judged then, is what was published in the public interest, for the public benefit and was it fair and reasonable? Under s26(2), the court shall take into account such matters as it shall think relevant and this gives the court flexibility to consider the particular circumstances of each case. There is a greater duty on the defendant, the more serious the allegation, that appropriate steps are taken to verify the statements as in Pedersen v Denmark[46] and this is set out under s26(2)(d) of the Act. This section protects journalists who report on suspect allegations and facts and is one of the factors of the reportage doctrine. In investigative journalism, the allegation should be put to the individual, in an attempt to verify the contents as in the Norwegian case of Bergens Tidende v Norway.[47]

Damages

It is likely that despite attempts made by the legislature to provide for alternative remedies in defamation actions under the Defamation Act, 2009, damages will remain the central remedy. As such, the manner in which, levels of damages are assessed is of large importance particularly in light of the European Convention on Human Rights Act, 2003. While s31(1) of the Defamation Act, 2009 allows for general submissions to be made to the jury by counsel and the judge, no figures or monetary scales can be used. A similar position existed in the United Kingdom prior to their enactment of certain safeguards after the ECtHR ruling in the Tolstoy Miloslavsky v UK[48] case. At common law, a verdict from court was by way of damages and historically the level of the award reflected a vindication and larger publicity for the case. In Ireland, the matter came up for consideration at the ECtHR in the Independent Newspapers & Media plc and Independent Newspapers (Ireland) Ltd v Ireland (De Rossa)[49] case. Both this case and the OBrien v MGN[50] case involved controversially large awards, however the de Rossa case[51] was ruled not be in breach of Article 10 of the Convention as there were sufficient safeguards and guidelines in place that were put to the jury as per the Henchy, J guidelines in Barrett v Independent Newspapers[52], which have since been codified into s31 of the 2009 Act. The ECtHR does not appear to require that any proportionality be strictly applied when assessing levels of damages and in this regard a great deal of flexibility is given to the courts once they can show that some level of criteria was used in its assessment of same.

S13 of the Defamation Act, 2009 does allows for a procedural appeal to the Supreme Court to re-assess a level of damages made and this is of some comfort to the media. All in all though, it appears that there is a continued curtailment of the right to freedom of expression under s31 of the 2009 Act. There are however, some measures which have followed from the common law into the 2009 Act, which allow for the mitigation of damages in unorthodox circumstances such as s31 (4), which provides for a mitigation of damages as per the rule in Scott v Sampson,[53] However, as in the Turner v Associated Newspapers case[54], where a defamatory publication cannot be justified by a defendant, a further mitigation of damages can be allowed for and arguably this could violate Article 8, as it seem unfair that if a defendant cannot prove the accuracy of the defamatory publication that a plaintiff would receive a reduced award for the damage to his good name.

Injunctions/ Orders Restraining Publication

The ECtHR, the Irish courts and common law have been reluctant to grant orders restraining publications or injunctions to publication, in particular prior to publication as in Cogley v RTE[55] and the Australian case of Australian Broadcasting Corp v ONeill.[56] If such orders are to be made they are assessed carefully by the courts as by granting an injunction, a clear protection is afforded to an individuals right to his good name as upheld by Article 8 of the Convention,[57] however in so doing, a significant restriction is levied against the opposing parties freedom of expression as protected by Article 10 of the Convention.[58] At common law, criteria such as a pressing social need or a clear legal basis have been the standards sought to be reached for such an order to be granted as per Cogley v RTE,[59] Sunday Times v UK (No. 2),[60] and Bladet Thomso v Norway.[61] S33 of the Defamation Act, 2009, on its face may indicate that a lower threshold of standard is now required in order for an injunction to be granted and naturally this could breach one?s right to freedom of expression.

It appears from case law in the UK and Ireland, that the common law rule in Bonnard v Perryman[62] as followed in Greene v Associated Newspapers,[63] Sinclair v Gogarty,[64] Reynolds v Malocco[65] and Evans v Carlyle[66] has carried forward into the new statute under s33(1).[67] However, considerable judicial flexibility and interpretation is allowed for by s33 (1)(b) of said act, by the reasonable likelihood test set out therein. There is potential for a violation of Article 10 of the Convention in that by granting an injunction one could be pre-empting a jurys decision. It could be argued that s33 is not well expressed, however Carolan posits that if the courts were to adopt an approach more akin to assessing the possibility of a defendants success in defending a defamation action, as opposed to the probability of his success, this would higher the threshold for an applicant to reach in achieving an injunction and could be more in compliance with Article 10 of the Convention.[68] On balance, it would seem likely that s33 of the Defamation Act, 2009 would be interpreted and applied by the Irish courts in manner that would be in compliance with the Convention.

Conclusion

Arguably, the recognition of the European Convention[69] in Irish law could be seen as merely symbolic given that many of the human rights in the Convention are also recognised by the Irish Constitution[70] and an applicant may achieve greater redress for a violation of his constitutional rights as opposed to a violation of his human rights under the Convention which can only allow for a limited form of redress i.e. the declaration of incompatibility under s5 of the 2003 Act.[71] Interestingly though, the protection afforded to the freedom of speech under the Irish Constitution under Article 40.6.1, is quite qualified as per The State (Lynch) v Cooney,[72] and in so being an applicant may well find that he has a stronger claim under the Article 10 of the European Convention than under the Irish Constitution. The Defamation Act, 2009 is on the whole to be largely welcomed and the legislature applauded for its attempts to weave the European Convention into its framework. Arguably from a practical point of view, largest criticism of the Defamation Act 2009 is the role that the jury still plays in the assessment of damages. Also, of significance is that the Defamation Act, 2009, de-criminalises defamation law (save for s 36 regarding Blasphemy) and in so doing follows the influence of the Strasbourg Court. The Irish judiciary, it is hoped will adopt an increasingly categorical approach by weighing up the competing interests of Articles 8 and 10 of the European Convention on Human Rights in their dealings with defamation actions and in so doing interpret and apply the Convention[73] to domestic cases in a comparably proportional and pragmatic manner. It is this established balancing of liberties that has always inspired a freedom of expression compounded by a responsible respect for the right to the reputation and good name of another pursuant to ones conscious. Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties. [74]

References

Books

Carolan, Eoin and ONeill, Ailbhe, Media Law in Ireland (United Kingdom: 2010)

Kilkelly, Ursula Ed, ECHR and Irish Law (Bristol England: 2004)

McDonald, Mark, Irish Law of Defamation (Dublin:1987)

Cox, Dr. Neville, Defamation Law (Dublin 8:2007)

Rolph, David, Reputation, Celebrity and Defamation Law (Hampshire England: 2008)

Nicol, Andrew and Millar, Gavin and Sharland, Andrew, Media Law and Human Rights (United Kingdom: 2001)

McGonagle, Marie, Media Law (Dublin : 2003)

Articles

Higgins, Eimear M, The Defamation Act 2009- A Practical Guide to the Substantive and Procedural Reform of the Act in Irish Law Times 2010

ODowd, T John, Irelands New Defamation Act in Journal of Media Law 2009

Descheemaeker, Eric, Defamation Outside Reputation: Proposals for the Reform of English Law in Tort Law Review 2010

ONeill, Onora, The Rights of Journalists and the Needs of Audiences? in Reuters Institute for the Study of Journalism November 2011

Mohan, Hugh I and Murphy, Mark William Defamation Reform and the 2009 Act: Part I (2010) Bar Review 33, Defamation Reform and the 2009 Act: Part II) (2010) 15 (3) Bar Review 50

Howarth, David, Libel: Its Purpose and Reform (2011) 74 Modern Law Review

Consultation Papers

Consultation Paper on the Civil Law of Defamation, March 1991

Report of the Legal Advisory Group on Defamation, March 2003

Media

McGonagle, Marie, Recent Developments in Defamation Law, at http://www.claruspress.ie/tort%20journal%20issue%201/art2_defamation_vol1_iss1.pdf

Smet, Stijn, The Right to Reputation under the European Convention on Human Rights at http://strasbourgobservers.com/2010/11/01/the-right-to-reputation-under-the-european-convention-on-human-rights/

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