RECENT DEVELOPMENTS IN DEFAMATION LAW
An Overview of the Defamation Act 2009
Paper by Neville Cox BL
9th April 2011
Introduction
The purpose of this paper is not to go into any great detail in respect of the various aspects
of the Defamation Act 2009, but rather to give a very broad overview of what the Act does
(and does not do) in practice. As will become clear, I am of the view that save in certain
niche areas, the Act does little that could be characterised as revolutionary; rather in the
main it codifies and consolidates the law as it had developed in the courts in the previous 50
years (and more). Hence, in my view, much of the hype that surrounded the legislation as
it rather torturously made its way through the Oireachtas was unfounded. Especially, in my
view, there is no sense in which this Act can be seen as a ‘journalist’s charter’ or as in some
way recalibrating the balance between the right to a good name and the right to free
speech as it is played out in Irish defamation law.
On one view of things this is, perhaps, rather odd and for three reasons.
•
First, if one listened to the reaction from parliamentarians both in favour of and
against the legislation, one might be forgiven for thinking that something seismic
was at stake, whereby the claims of those who were in favour of increased respect
for the right to free speech in so far as defamation law was concerned had all been
answered.
•
Secondly, it is certainly the case that at the outset, the stated rationale for reform of
defamation law was derived from the fact that the United Nations Human Rights
Committee had been of the view that Ireland’s existing defamation laws caused
problems in so far as its obligations under the International Covenant on Civil and
Political Rights were concerned and this had been the focus also of the various
reform bodies that had dealt with the law prior to publication of the Defamation Bill
in the summer of 2006.
•
Finally, the jurisprudence of the European Court of Human Rights interpreting Article
10 of the European Convention on Human Rights appeared to be leaning in favour of
a position (certainly in so far as journalists were concerned) which was more ‘prodefendant’ than was the case at Irish law and it had been argued that our European
obligations would commit us to a more ‘pro-publisher’ reform.
On another view of things, however, the legislation arguably strikes an appropriate (if
entirely non-radical) balance between all the various rights that are in play. After all, of the
documents mentioned in the previous paragraph, the Irish constitution is unique in explicitly
protecting both a right to freedom of expression and a right to a good name (and as the
High Court in Hunter v. Duckworth1 noted some years ago, these are both factors which
must fit into the constitutional paradigm within which Irish defamation law operates).
Hence the ‘new’ law, while undeniably non-revolutionary was also, probably the only
legitimate option as far as the necessary Irish constitutional paradigm was concerned;
moreover, the Act is also useful if for no other reason than that it does consolidate many of
the very many and very significant changes to the law that had occurred since 1961.
For present purposes, I think that the content of the 2009 Act can very roughly be broken
down under the following broad headings.
(a)
(b)
(c)
(d)
(e)
The elements of the tort of defamation
Defences
Procedural changes
Reliefs
Miscellaneous developments.
Of these, other speakers at this conference will be focusing on the issues of defences,
declaratory orders and the role of the press council. Hence I will only note these issues in
passing, and will refer in more detail to the other issues identified.
1. The Elements of the Tort.
Traditionally of course, the tort of defamation contains three elements, namely publication,
defamation and identification and all three are, unsurprisingly, treated under the new Act.
1.1 Publication
Publication occurs by way of a statement, defined in s. 2 as including
(a) a statement made orally or in writing,
(b) visual images, sounds, gestures and any other method of signifying meaning
(c) a statement broadcast on the radio or television, or published on the internet,
and
(d) an electronic communication;
Moreover, the Act also retains the traditional common law rule that publication arises
whenever the defamatory or allegedly defamatory material is conveyed to a person other
1
[2003] IEHC 81
than the person defamed2 but that innocent publication (that is where the publication was
not unintended and unforeseeable) will not ground liability3.
Probably the most highly publicised change to the rules in respect of publication is the fact
that the Act abolishes the old libel/slander distinction such that there is now just the single
tort of defamation4. This therefore does away with the need to prove special damage in the
case of many slanderous though not libellous publications – indeed the Act reaffirms the old
rule for libel and makes it applicable to all defamations that the tort is actionable per se.5
Once again, however, and obviously the nature and extent of publication will factor into the
quantum of damages awarded6. Hence it is arguable that the real significance of the
abolition of the distinction will be in respect of the fact that, as will be considered shortly,
the Limitation period for the new tort is less than that which formerly applied where libel
was at issue7.
Very significantly the Act provides that the old approach whereby multiple publications
grounded multiple actions is to be replaced by a new ‘single publication’ rule8 such that
where there is publication to more than one person of the same defamation, then only one
cause of action arises out of the issue (although obviously, as has been said, the extent of
publication will tend to be represented in the quantum of damages awarded). This is, it is
submitted, an eminently sensible development. Moreover, it is possible for a plaintiff to
apply and for a court to grant leave to a person to bring more than one defamation action in
respect of a multiple publication where it considers that the interests of justice so require.9
The Act also codifies the common law defence of innocent dissemination or secondary
publication. Under the Act, this defence is available to a defendant if
(a) he or she was not the author, editor or publisher of the statement to which the action
relates,
(b) he or she took reasonable care in relation to its publication, And
(c) he or she did not know, and had no reason to believe, that what he or she did caused or
contributed to the publication of a statement that would give rise to a cause of action in
defamation10.
In this respect, moreover, a defendant is deemed not to be the author, editor or publisher of
a statement if
(a) in relation to printed material containing the statement, he or she was responsible for
the printing, production, distribution or selling only of the printed material,
(b) in relation to a film or sound recording containing the statement, he or she was
responsible for the processing, copying, distribution, exhibition or selling only of the film or
sound recording,
2
S. 6(2)
S. 6(4)
4
S.6(1)
5
S. 6(5)
6
S. 31
7
S. 38
8
S. 11
9
S. 11(2)
10
S. 27(1)
3
(c) in relation to any electronic medium on which the statement is recorded or stored, he or
she was responsible for the processing, copying, distribution or selling only of the electronic
medium or was responsible for the operation or provision only of any equipment, system or
service by means of which the statement would be capable of being retrieved, copied,
distributed or made available11.
And, in assessing whether reasonable care was taken as to publication or whether the
defendant had reason to believe that what he or she did caused or contributed to the
publication of a defamatory statement, the Court should have regard to
(a) the extent of the person’s responsibility for the content of
the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.
Two points perhaps arise in respect of the defence as it stands. First, it does seem strange
that the defence would cover a situation where a defendant could show that [s]he was not
the ‘publisher’ of a statement, in that of course publication is an indispensible element of the
tort, and hence something that the plaintiff needs to prove rather than something that the
defendant needs to disprove. Moreover, if the defendant is NOT the publisher of the
material, then quite clearly he does not need to show any of the other factors listed in this
section of the Act. It may be suggested that the statute has a particular view of what
constitutes a ‘publisher’ in this context – presumably with something like a publishing firm in
mind. Equally, this would potentially lead to a situation where the Act contains (without
clarification), two operative definitions of a publisher, of which one will apply generally and
one will apply purely in the context of the defence under s.27 of the Act.
Secondly, in terms of assessing whether the innocent disseminator ddid not know, and had
no reason to believe, that what he or she did caused or contributed to the publication of a
statement that would give rise to a cause of action in defamation, it may again be asked
whether in the case of, for example, a newspaper vendor, it is necessary for him to have
read all material sold to check for defamatory content, or possibly to have read publications
that habitually contain defamations12. Alternatively, if a newspaper vendor is aware that a
particular newspaper contains a controversial statement about someone and if he or she
cannot be sure as to whether that statement is true or false, is [s]he then required to take
all copies of the relevant edition off his shelves.
Finally, and briefly, it is, perhaps worth noting that the Act did not take the opportunity to
make any specific provision for dealing with internet publication and accordingly that
publication on the internet will continue to be treated in the same way as any other
publication. No doubt in ideological terms this makes sense – after all the law does not
traditionally distinguish between different forms of publication. Nonetheless it has been
suggested that the issues thrown up by internet publication are so qualitatively different to
normal publication issues that it might be worth regarding them as meriting a specific law on
internet defamation.
1.2 Defamation
11
12
S. 27(2)
See generally Cox, Defamation Law (Firstlaw 2007) pp. 42-43
The multi-faceted common law definition of what is meant by a defamatory statement, with
its curious focus on the ‘right thinking person’ is replaced under the Act by a single
statement that a defamatory statement is one which tends to injure a person’s reputation in
the eyes of reasonable members of society.13 It is also clarified that where a statement
contains more than one defamatory imputation, the injured party nonetheless has only one
cause of action arising out of the statement.14 As ever, it is a jury question (assuming the
presence of a jury) as to whether a statement carries a particular meaning and whether the
meaning in question is defamatory and, under the Act specific provision is made for
application to be made (on notice of motion and at any time after the action is brought,
including during the trial) to the Judge for a ruling on this point (that is, whether the
statement is reasonably capable of bearing the alleged meaning, and whether that meaning
is reasonably capable of being defamatory).15 Should the Judge answer either of those
questions in the negative then the matter must be dismissed as it relates to the specific
imputation in question. 16
1.3 Identification
The Act reinforces the proposition that a person is identified for the purposes of a
defamation action if the impugned statement could reasonably be taken as referring to him
or her.17 It also states that where there has been a defamation of a group of persons then
an individual member of that group may claim to be identified in the defamatory statement
if by reason of the number of persons who are members of that class, or by virtue of the
circumstances in which the statement is published, the statement could reasonably be
understood to refer, in particular, to the member concerned.18 This is perhaps a slight
departure from the common law rule, albeit far more in theory than in practice. First, at
common law, the question remained as to whether in the context of a group defamation,
the plaintiff could show that [s]he was reasonably identifiable in the publication19. There was
thus, in theory no need to show that the publication could be understood to refer in
particular to him or her, although obviously in practice it would often be necessary to
demonstrate this fact in order to show reasonable identification.
Secondly, there are circumstances in which one might be defamed by a ‘group’ defamation
at common law, yet where one was not referred to in particular out of the group. So for
example a statement that ‘The entire membership of a particular group have committed
murder at some point’ or ‘one person living at such and such an address committed that
murder’ would both, I would submit, have been defamatory at common law, yet in neither
could the statement be taken to refer in particular to one member of a group20. It is perhaps
uncertain as to whether or not s. 10 of the Defamation Act 2009 excludes such persons from
bringing a defamation action in respect of such a statement.
2. DEFENCES
13
S. 2
S.9
15
S. 14(1)
16
S. 14(2)
17
S.6(3). For the avoidance of doubt, it is also expressly stated that a body corporate can sue for defamation
even in circumstances where it has suffered no financial loss arising out of an impugned statement. S. 12
18
S.10
19
See for example Duffy v. News Group Newspapers [1994] 3 IR 63
20
See for example Farrington v. Leigh. Times, December 10, 1987
14
As mentioned above, this issue will be dealt with in more detail by another speaker. As such,
I would confine myself to three observations.
•
First, it is significant that under s.15 of the Act and with the exception of the
defences of absolute and qualified privilege, the new statutory defences replace their
existing common law counterparts. I say this because I think in certain respects, the
statutory defences (for example of honest opinion, the modern incarnation of fair
comment) may prove more difficult to activate than their common law precursors
•
Secondly, and whereas the defence of fair and reasonable publication under s.26 of
the Act was the one which arguably garnered the most discussion and comment, I
do not believe that it will be enormously significant in practice, not least because it is
so heavily conditioned. Rather I think that, in practice, the defence of offer of
amends under s.22 and the fact that one can now offer an apology without this
constituting an admission of liability will be more significant.
•
Finally, and to return to s. 15, it is expressly provided that whereas under s.18 of the
Act there is a statutory defence of qualified privilege, equally this is one of the
defences whose common law manifestation is not replaced by statute. Hence if one
publishes a statement that would have been privileged at common law prior to
January 1,2010, it continues to be privileged. The reason why this might be
significant is because there is of course some uncertainty both as to whether the
type of defence that is protected under Reynolds v. Times Newspapers21(and its
progeny) was available to Irish defendants before the coming into being of the 2009
Act, and also whether this defence was a ‘new’ defence for journalists, or simply an
application of the defence of qualified privilege22. If the latter, and if the approaches
of O’Caoimh J in Hunter v. Duckworth and of Charleton J in Leech v. Associated
Newspaper23 are taken to represent the law (namely that some manifestation of
Reynolds privilege was recognised as a defence in Irish law) then it would
presumably be possible simultaneously to plead the statutory defence under s. 26
and the common law defence of (Reynolds) qualified privilege. The reason why I
think this is potentially important is because I think from a defendant’s perspective
there may be more flexibility attaching to the common law rather than the statutory
defence24.
3. PROCEDURAL MATTERS
As was mentioned at the outset, I think it is the procedural aspects of the new Act which will
be far more important than the substantive provisions. A number of points of significance
arise.
3.1 Limitation Periods
First, as is well known the Statute of Limitations is amended to provide for a one year
limitation period for all defamation actions.25 Such limitation period runs from the date of
accrual of the cause of action, defined as the date on which the defamatory statement is
21
[2001] 2 AC 127
See Generally Cox, Defamation Law pp 317ff
23
[2007] IEHC 223
24
This is certainly the case since Jameel v. Wall Street Journal [2006] UKHL 44
25
S.38(1)
22
first published or, where the statement is published through the medium of the internet, the
date on which it is first capable of being viewed or listened to through that medium.”
Having said that, the limitation period may be increased to a longer period, not exceeding
two years, if this is directed by the court. Such a direction should not, however, be made
unless the court takes the view both that the interests of justice require this and also that
the prejudice that the plaintiff would suffer if the direction were not given would significantly
outweigh the prejudice that the defendant would suffer if the direction were given.
Moreover, the court must have regard in the exercise of its discretion to the reason for the
delay and the question of why the action was not brought in time, and also to the extent to
which any evidence relevant to the matter is by virtue of the delay no longer capable of
being adduced. (which of course is not unlike the analysis that the courts tend to make in
determining whether an action should be struck out in any other context for delay or want
of prosecution.
3.2 Indemnification
The Act provide that an agreement to indemnify any person against civil liability for
defamation in respect of the publication of any statement shall be lawful unless at the time
of the publication that person knows that the statement is defamatory, and does not
reasonably believe that there is a defence to any action brought upon it that would
succeed26. In other words, put simply whereas one can insure oneself against a defamation
action, one cannot insure oneself in respect of a statement that one knows is indefensibly
defamatory.
3.3 Lodgements
A further well known and potentially significant development is the fact that whereas the Act
makes provision for the making of lodgements in defamation cases27, equally under the new
Act it is possible to make a lodgement in a defamation case without admitting liability.28 It
may be suggested that this change (like the change considered above whereby one may
make an apology without admitting liability) is aimed at reducing the number of defamation
actions which go the distance in terms of reaching the point of trial.
3.4 Verifying Affidavit
One of the most significant changes wrought by the legislation is in s.8. Under the terms of
s. 14 of the Civil Liability and Courts Act of 2004, the practice of making unevidenced
statements of this nature in pleadings in the context of personal injuries actions had been
targeted inter alia by a rule that parties to an action must swear an affidavit in which they
aver to the truth of all assertions and allegations made in the pleadings. A similar approach
is adopted in the context of defamation actions by s. 8 of the 2009 Act.
Under this section, in defamation cases (other than those involving an application for a
declaratory order29), where either the plaintiff30 or the defendant31 serves on the other side
26
S.40
S.29
28
S.29(4)
29
S. 8(13)
27
any pleading containing assertions or allegations of fact, the plaintiff or defendant (as the
case may be) is required, within two months of the service of the pleading or provision of
the further information - or such longer period as the court may direct or the parties may
agree32 - to swear an affidavit to be filed in court33 verifying those assertions or
allegations.34
The person swearing the affidavit in question is required to include an averment that s/he is
aware that by knowingly making of a false or misleading statement s/he is committing an
offence35. If a person makes a statement in the affidavit that is false or misleading in any
material respect (and either party may be cross examined in relation to any statement made
in the affidavit36) and if s/he knows that statement to be false or misleading then that
person is guilty of an offence37, and is liable on summary conviction to a fine not exceeding
€3,000 and up to 6 months in prison or both, and on conviction on indictment, to a fine not
exceeding €50,000 and a five year prison sentence or both.38 Moreover, where a plaintiff or
defendant fails to comply with the section, the court is entitled to make such order as it
considers just and equitable, including (where the plaintiff is at fault) an order dismissing
the action and (where the defendant is at fault) an order giving judgement in favour of the
plaintiff.39
Clearly the intention of this provision is to ensure that pleadings are more streamlined and
targeted so that the issues that will form the basis of a defamation action can be more
clearly established prior to that action being heard; moreover, its lasting impact is likely to
be that it will make it impossible for parties simply to state a proposition in pleadings and
wait for the other side to disprove it.
4. RELIEFS UNDER THE DEFAMATION ACT 2009
The new Act contains various significant new provisions in respect of the reliefs that are
available. Of these, Mark Harty BL will speak today about the declaratory relief available
under s. 28 of the 2009 Act hence I shall not refer to this at all. Hence what I shall focus on
is the treatment by the legislation of
30
S. 8(1). References to the plaintiff shall, in the case of a plaintiff who is deceased, be construed as referring
to his or her personal representative. S. 8(12)(a)
31
S. 8(2). References to the defendant shall, in the case of a defendant who is deceased, be construed as
referring to his or her personal representative. S. 8(12)(b)
32
S. 8(5)
33
The reference to “court” in this context includes, where the case is brought in the High Court, a reference to
the Master of the High Court, and, where the case is brought in the circuit court, a reference to the County
Registrar for the relevant county. S. 8(11)
34
In the case of a defamation action brought on behalf of an infant or person of unsound mind, the affidavit
shall be sworn by a next friend or a committee of the infant or person. In such circumstances, where an
assertion or allegation is at issue in respect of which the next friend or committee has no personal knowledge,
s/he is required to aver that s/he honestly believes the assertion, allegation or further information to be true
(s. 8(3)) as is also the case where a person is swearing an affidavit on behalf of a body corporate.
35
S. 8(8)
36
S. 8(9)
37
S. 8(6)
38
S. 8(7)
39
S. 8(10). The judge may give such directions in relation to such an order as s/he considers necessary or
expedient
(a) The traditional reliefs namely damages and injunctive relief
(b) The ‘new’ ability of the court to make a correction order and
(c) The statutory rules in respect of summary disposal of an action
4.1 Damages
In so far as damages are concerned, there were two widespread criticisms of the existing
position as it presented prior to enactment of the 2009 Act. In the first place, it was
suggested that damage awards in defamation actions were excessive – nor will recent
developments have done anything to diminish this argument. Secondly, it was argued that
the allegedly arbitrary and excessive nature of such jury awards was due to the fact that
juries could not, under the existing rules, be directed sufficiently by judges on the question
of damages and also that there was not a proper appellate system in place that would guard
against such risks, in that Irish appellate courts are notoriously (albeit rightly) reluctant to
overturn any jury determination on a question of fact.
Before we assess how these issues were dealt with by the legislation, it is perhaps,
appropriate to make two points about the proposition that such awards are inherently and
self-evidently excessive. First, it is true that the ECHR, for all its supposedly ‘pro-publisher’
approach to defamation cases (and especially those involving journalists) stood over the
legitimacy of the existing Irish rules in the only relevant case to come before it.40 Secondly,
and ideologically, I have suggested elsewhere that the huge quantum awarded in many
defamation cases may only be explicable if and when one accepts that the award of
damages in these cases is not exclusively compensatory (in the personal injuries type sense)
but instead (a) that such an award inevitably fulfils a vindicatory function and (b) that such
an award almost inevitably has some punitive element to it41. In other words, there is no
point in comparing quantums of damages in PI cases and defamation cases because it is a
classic case of comparing two completely non-comparable items.
The Defamation Act 2009 approaches the issue of damages on two fronts. First, under s. 11
it is provided that on an appeal to the Supreme Court from any decision of the High Court in
a defamation case (including a jury decision) the Supreme Court may inter alia substitute its
own award for a specific amount of damages for that awarded to the Plaintiff in the High
Court.
Secondly, s. 31 of the 2009 Act expressly permits both parties to a defamation action to
make submissions to the court in respect of damages, and requires that the judge in a High
Court case give directions to the jury on the issue.42 Beyond that, it is provided that in
making any award for general damages (and under s. 31(7) a Court can award ‘special
damages’ in respect of financial losses incurred as a result of the publication) in such cases
regard should be had to all the circumstances of the case43. Specifically, regard should be
had to the following (and it is clear that these factors should be brought to the jury’s
attention by the Judge in his directions)
(a) the nature and gravity of any allegation in the defamatory statement concerned
40
Independent Newspapers v. Ireland [2005] ECHR 402
See Cox, Defamation Law at pp. 362-363
42
S. 31(2)
43
S. 31(3)
41
(b) the means of publication of the defamatory statement including the enduring nature
of those means
(c) the extent to which the defamatory statement was circulated (and where the
defamation arises by way of innuendo, such that it will only appear defamatory to
persons possessed of certain information while being innocent on its face, the
publication is deemed only to have been circulated to persons in possession of this
information44)
(d) the offering or making of any apology, correction or retraction by the defendant to
the plaintiff in respect of the defamatory statement
(e) the making of any offer to make amends [under section 22 of the 2009 Act] by the
defendant, whether or not the making of that offer was pleaded as a defence
(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all
recipients of the defamatory statement.
(g) The extent (if at all) to which the plaintiff caused or contributed to or acquiesced in,
the publication of the defamatory statement
(h) Evidence given concerning the reputation of the plaintiff45
(i) If the defence of truth is pleaded and the defendant proves the truth of part but not
the whole of the defamatory statement, the extent to which that defence is
successfully pleaded in relation to the statement
(j) If the defence of qualified privilege is pleaded…the extent to which the defendant
has acceded to the request of the plaintiff to publish a reasonable statement by way
of explanation or contradiction, and,
(k) Any order made under section 33 or an order under that section or correction order
that the court proposes to make or, where the action is tried in the High Court sitting
with a jury, would propose to make in the event of there being a finding of
defamation
Having said that, quite clearly a decision on quantum of damages remains one of fact and
hence, in many cases, one for the jury.
Finally, specific provision is made under s. 32 for an award of aggravated damages in
circumstances where the defendant conducted his or her defence in a manner that
aggravated the injury caused to the plaintiff’s reputation by the defamatory statement. One
might suggest, having regard, for instance to the decision of Hamilton CJ in De Rossa v.
Independent Newspapers46 that this could arise, for example, where there was a failed use
of a plea of truth (justification) and also where there was an overly aggressive cross
examination of a witness. Finally, under s. 32 it is provided that punitive damages can be
awarded where the defendant has been found liable to pay the plaintiff compensatory
damages and where [s]he intentionally published a statement about the plaintiff, knowing
that it would be understood by the recipient to refer to the plaintiff and in circumstances
where [s]he either knew the statement was true or was reckless as to its truth then the
Court may award punitive damages of such amount as it considers appropriate.
44
S. 31(5)
Under s. 31(6) the Defendant in mitigation can with the leave of the court give evidence of any matter that
would have a bearing upon the reputation of the plaintiff, provided that it relates to matters connected with
the defamatory statement and may also give evidence (apparently without leave of the court) that the plaintiff
has already in another defamation action been awarded damages in respect of a defamatory statement that
contained substantially the same allegations as are contained in the defamatory statement to which the firstmentioned defamation action relates.
46
[1999] 4 IR 432
45
There are perhaps two elements of this latter rule which deserve mention. First, it seems
clear that this is a less onerous test than would usually apply for punitive damages47; in
essence the only moral fault on the part of the defendant which needs to be established is
that [s]he recklessly published a statement about the defendant. Secondly, it is notable that
the section gives the court carte blanche as to the quantum of punitive damages that are to
be awarded. It is tempting, however, to suggest that a wildly disproportionate award of
punitive damages (having regard to the quantum of compensatory damages) would raise, at
the very least, serious questions should the matter be appealed to the ECtHR.
4.2 Injunctive Relief
It is well known that the old rule was that injunctive relief and more specifically,
interlocutory injunctive relief would not be awarded in a defamation action where any
defence (and especially the defence of justification/truth was being pleaded)48. Under s. 33,
however, the court (and not necessarily the High Court) may make an order (be it an
interim, interlocutory or permanent order) prohibiting publication or further publication of a
statement where it was of the view that the statement was defamatory and the defendant
had no defence to the action that is reasonably likely to succeed. Naturally this is a big step
in so far as the legislation is concerned, in that it permits the court to engage in what will
inevitably be a factual analysis of whether the statement is defamatory and of the state of
the defence(s) that [s]he will be able to muster. To this extent, it seems to me that the
statutory position is much kinder to plaintiffs than was the earlier position in that formerly,
at least on one line of analysis, if one raised any defence, irrespective of how likely it was to
succeed or fail, the court was bound to refuse the application for interlocutory injunctive
relief.
4.3. Summary Disposal of An Action
A new statutory measure introduced by s. 34 of the Defamation Act 2009 allows the court to
grant summary relief to either party in a defamation action. In terms of granting such relief
to the defendant, this is not an original power. After all, as we have seen, the judge acts as
a filter for the jury in respect of any number of matters, such that where a jury is required
to determine a factual question, the judge will, in advance of this, determine as a legal
matter whether a particular factual proposition is reasonably capable of being true. S. 34
essentially encapsulates this power in statutory form as it applies to one particular question.
Thus under s. 34(2) it is provided that the court (and all applications under this section are
heard in the absence of the jury49) may, upon the application of the defendant,50 dismiss the
action51 if it is satisfied that the statement, in respect of which the action was brought is not
reasonably capable of being found to have a defamatory meaning.
What is more innovative is the power under s.34 of the Act for a judge, upon the application
of the plaintiff, to grant summary relief to the plaintiff52, if he or she is satisfied that the
47
Shortt v. Commissioner of AN Garda Síochána [2007] IESC 9
Generally see Cox, Defamation Law pp. 418-419
49
S. 34 (4)
50
Under s. 34(3) an application for these purposes shall be brought by motion on notice to the other party to
the action and shall be grounded on affidavit.
51
It is notable that s.34 does not permit a judge to dismiss part of an action but merely the action in its
entirety.
52
S.34
48
statement in respect of which the action was brought is defamatory53 and the defendant has
no defence to the action that is reasonably likely to succeed54. It may be suggested,
however, that in both cases, the procedure should only be used where “…the claim or
defence is clearly without merit or is otherwise an abuse of process”, and, in particular
should not be used where there is anything in the way of a conflict of evidence, which
should properly fall to be determined at trial55.
There is nothing in s. 34 to indicate when such an application for summary disposal must be
brought. Hence, whereas, it may be suggested that the norm would be that such application
would arise before the trial - and the English experience has been that such applications
can often be made well in advance of trial, indeed even in advance of disclosure or
discovery applications56 - or possibly during it, it would seem possible that such an
application might be made even after the jury has reached a decision on liability, but before
it reached a decision on quantum, albeit that it is highly improbable that this would happen
in practice.57
Whereas this procedure has similarities to the approach taken at English law under s.8 of
the Defamation Act 199658, there are a number of major points of difference. First, the
grounds for use of the summary procedure are remarkably more limited in Ireland than in
England. Thus the summary disposal procedure can be used in England whenever the court
feels that either party has no realistic chance of success and there is no reason why the
matter should be tried. In Ireland, on the other hand, the only grounds for invoking the
procedure are (a) (on the plaintiff’s application), where the statement is defamatory59 and
the defendant has no defence that is reasonably likely to succeed60 and (b) (on the
defendant’s application), where the statement is not reasonably capable of having a
defamatory meaning. Hence, from the defendant’s standpoint, there is no provision for
using this procedure where, for example, the statement patently does not refer to the
plaintiff, where there is no evidence of publication61, or where there is an obvious and
unassailable defence available to the defendant62. Not a great deal turns on this, in that it is
53
s.34(1)
s.34(2)
55
Bataille v. Newland [2002] EWHC 1692, Alexander v. Arts Council of Wales [2001] 1 WLR 1840, Safeway
Stores v. Tate [2001] 2 WLR 1377
56
Mosley v. Focus Magazin GmbH [2001] EWCA Civ 1030. Gatley (at 30.16) makes the point that in such
circumstances, the court would need to be assured that nothing would turn up in disclosure or discovery that
might affect the way in which the case would go. McDonald’s Corporation v. Steel [1995] 3 All ER 615, S v.
Gloucester CC [2000] 3 All ER 346.
57
Gatley at 30.17. See Loutchansky v. Times Newspapers (No.5) [2001] EMLR 39
58
These work in tandem with Part 24 of the English Civil Procedure Rules.
59
It would seem that in this context, the judge can usurp the function of the jury in determining whether
words are defamatory (Gillick v. Brook Advisory Centre [2002] EWHC 829) but that this should only occur
where there is a degree of certainty in this regard. Indeed it has been noted that cases where the statement
was incontrovertibly defamatory are rare.
60
Kearns v. General Council of the Bar [2003] EWCA Civ 331.
61
Mosley v. Focus Magazin Verlag GmbH [2001] EWCA Civ 1030
62
See Fox v. Wokingham District Council [2003] EWCA Civ 499 where an action was struck out (under the
equivalent English rules) on the grounds that there was no reasonable prospect of the plaintiff defeating the
defence of qualified privilege by proving malice.
54
entirely arguable that, at common law, the court retains a jurisdiction to strike out the claim
in such circumstances.
A yet more important distinction between the approaches take in the two jurisdictions lies in
the definition of the “summary relief” that can be awarded. Under s.9(1) of the English Act,
various reliefs may be awarded – declaratory relief, an order that the defendant publish a
suitable correction and apology and an order prohibiting further publication - and in
addition, damages may be awarded but not exceeding £10,000 (or such other amount as
may be prescribed by order of the Lord Chancellor). Thus, for the plaintiff, the procedure
represents an opportunity to obtain a quick and easy resolution of the action, whereby s/he
will have his or her good name vindicated, and will receive some financial compensation..
Under the Irish Act, however, summary relief is defined as (a) a correction order or (b) an
order prohibiting further publication of the statement to which the action relates63 (and it
should be noted that the use of the word or in this context means only one rather than
both of these reliefs can be obtained). Hence the Irish plaintiff, unlike his English
counterpart, will not be able to secure either a combination of injunctive relief and a
correction order, nor in any context will s/he be able to obtain declaratory relief or damages.
Naturally this renders the procedure far less attractive for a plaintiff in Ireland than in
England.
4.4. Correction Orders
A further innovation wrought by the 2009 Act is in the notion of “correction orders” which
may be made pursuant to s. 30. A plaintiff in a defamation action can apply for a correction
order at any time during the trial of a defamation action at which the court or trial judge
directs,64 and s/he must inform the defendant by notice in writing of his or her intention to
do so not later than seven days before the trial of the action and must also inform the court
of this fact at the trial of the action65. The court may (rather than must) grant such an
order where there is a finding that the statement in respect of which the action was brought
was defamatory and the defendant has no defence to the action. There is nothing in the
section to indicate circumstances or factors that might be relevant for the court in the
exercise of its discretion in this regard.
The correction order itself is an order directing the defendant to publish a correction of the
defamatory statement.66 Without prejudice to the generality of this definition, the correction
order must specify67
(a) the date and time upon which or the period not later than the expiration of which the
correction shall be published (and unless the plaintiff otherwise requests, it shall
require that the correction be published in such manner as will ensure that it is
63
s. 2
s. 30(4)
65
s. 30(3)
66
s. 30(1)
67
s. 30(2)
64
communicated to all, or substantially all of those persons to whom the defamatory
statement was published) and
(b) the form, content, extent and manner of publication of the correction.
To this extent, the notion of a correction order in s. 30 is a particularly radical departure, in
that it involves the court, essentially, determining the terms of a retraction of the
defamation. It is notable that the English equivalent (which arises under the general
summary disposal procedure) involves the parties agreeing as to the content, time, manner,
form and place, of publication, and should the parties disagree in this regard, then all that
the court can do is to require the defendant to publish or cause to be published a summary
of the court’s judgment.68 Presumably the significance of such orders will depend on how
the general approach of the clause is interpreted, and especially, whether it is interpreted in
a “plaintiff friendly” manner.
The correction order under s. 30 is also significant in that, to my knowledge, it is the first
example of a section which was determinative in a case which has proceeded to completion
under the 2009 Act. In Watters v. Independent Star Limited69, a case in which a number of
interesting issues were addressed (including the question of whether it is defamatory to say
of a person that he is engaged in a homosexual relationship and the question of whether
and when a person with a very bad reputation will be able to obtain damages for
defamation) Judge Matthews in the Circuit Court granted the applicant declaratory relief
under s. 28 of the 2009 Act and in doing so made a correction order under s. 30 and an
order restraining further publication under s. 33. Significantly, however, Matthews J agreed
with Mr McCullough SC’s submission for the defendant that ideally the terms of the
published correction should be agreed inter partes and that it was only in default of such
agreement that the Court should order a correction in a specific format.
5. Miscellaneous Developments
The 2009 Act also gave rise to various miscellaneous developments worth mentioning. The
one development to which I am not going to refer in this regard relates to the establishment
and work of the Press Council – in that it is the subject of another paper at this conference.
5.1 Blasphemy
Somewhat oddly, of all the changes that were wrought by the 2009 Act, it was the least
significant of these changes that generated the most reaction. The statutory encapsulation
of the crime of blasphemy which, according to Article 40.6.1(i) of the constitution led to a
remarkable and vitriolic reaction from many who saw it as a repressive measure which
would severely curtail religious freedom. In fact it would do no such thing. We know from
the constitution that the crime of blasphemy must exist at Irish law. We know from Corway
v. Independent Newspapers70 that the legislature had been instructed by the Supreme Court
to legislate to clarify the nature of a crime which the Supreme Court had felt unable to
interpret. The inclusion of s. 36 (et seq) of the 2009 Act therefore, merely fulfilled this
68
s. 9(2) Defamation Act 1996
[2010] IECC 1
70
[1999] 4 IR 484
69
legislative obligation, and did so in the context of the repeal of the 1961 Defamation Act
which, heretofore, had contained the only procedural mechanism for prosecuting a
blasphemy case. Moreover, it did so in a way which, while not denying the constitutional
requirement, essentially emasculated the crime (in that one must now prove both that the
published material did, in fact cause outrage among a substantial number of the adherents
of the religion on the grounds of its grossly abusive or insulting nature and also that the
publisher intended such outrage to be caused, and furthermore the fact that a reasonable
person would find genuine literary, artistic, political, scientific or academic value in the
publication is a defence in respect of such publication). Given that there is a constitutional
imperative that a crime of blasphemy shall exist at Irish law, and given that it would have
been a waste of money to have amended the constitution to have abolished a crime which
had had no impact in practice for 160 years, it seems to me, as one who would not favour
the existence of a crime of blasphemy, that this was actually not a bad strategy for
compromise – even if it ended up pleasing nobody.
5.2 Criminal (Defamatory) Libel
More significantly in practice, of the original four heads of the crime of libel, three were
abolished by the 2009 Act, namely defamatory, seditious and obscene libel.71 From a
defamation perspective, decisions of the High Court had, to all intents and purposes
rendered the idea of a private prosecution for criminal libel redundant. Nonetheless, it was
true that the police had publicly prosecuted some criminal libel cases, and it is perhaps
arguable, that there may be instances where the publication of a libel is so heinously
immoral that a prosecution would be warranted; it is arguable that this is precisely the type
of context in which an award of punitive damages is warranted. It is perhaps notable that
when the 2006 Bill was originally promulgated it in fact replaced the crime of libel with a
new crime which is committed when a person knowingly and with the intention of causing
grave injury to the reputation of a person (other than a body corporate), publishes or
causes to be published a statement containing false allegations concerning the second
mentioned person thereby causing grave injury to his reputation. By the time the Bill was
eventually enacted this new offence had been removed.
5.3 Malicious Falsehood
The 2009 Act also clarifies the rules in respect of the tort of malicious falsehood. This in any
action for slander of title, slander of goods or other malicious falsehood, the plaintiff must
prove that the impugned statement was untrue, was published maliciously and referred to
the plaintiff, his or her property or his or her office, profession, calling, trade or business.
Moreover, the plaintiff must prove either special damage or else that the publication of the
statement was calculated to cause and likely to cause financial loss to the plaintiff in respect
of his or her property, office, profession calling, trade or business.72
5.4 Final Miscellaneous developments
Finally there are two other miscellaneous developments contained in the 2009 Act.
71
72
S. 35
S. 42
•
•
First, it is provided that the fact of either an acquittal or a conviction for a criminal
offence is evidence admissible in a defamation case73
Secondly, and whereas the Act does not change the existing rule that in Ireland one
cannot defame the dead, equally it does make provision for the survival of a cause of
action where the cause of action vested in a person prior to his or her death. Equally
the impact of this provision is considerably diluted by the fact that in such cases, no
award can be made for general, aggravated or punitive damages74.
Conclusion
Whereas to many, the 2009 Act was a disappointment in that it did not do what it was
originally promised to do, I think that if one takes it for what it is – a consolidation whose
major points of departure are procedural in nature - then it still is useful as a point of
reference for a branch of the law whose developments had become so widespread and
disparate. Under s. 5, a review of the Act is due no later than 2014, but it may only be then
that the first tranche of actions brought pursuant to the Act are starting to come to trial.
73
74
S. 43
S. 39
RECENT DEVELOPMENTS IN DEFAMATION LAW
Section 28 Declaratory Orders
and
Other Developments in Circuit Court Practice
Paper by Mark Harty BL
9th April 2011
Historically the chief forum for actions in Libel in this jurisdiction was the High Court. In
respect of any serious defamation a plaintiff would seek and would be advised to seek
unlimited damages and the finding of a jury. This is in line with the long cherished view that
a jury is best placed to determine the nature and extent of damage to a plaintiff’s reputation
by widely published defamatory material.
The circuit court on the other hand specialized in slander actions (and most commonly
allegations of shop-lifting – McCormack v Oisthoorn [2004] 3 IR 632) It was rare that a
person libeled in an organ of the national media would bring an action before the circuit
court. In those exceptional circumstances where such an action was brought the
overwhelming suspicion was that the plaintiff was concerned that for political or other
reasons a jury would be unsympathetic even if the claim was good in law.
The position of the circuit court in respect of defamation has been significantly altered as a
result of the Defamation Act 2009. The changes which are specific to the circuit court or
which alter the jurisdiction of that court significantly are:
(A)
(B)
(C)
Section 28 Declaratory Relief and related orders.
Power of the Court to Grant Injunctions and other orders
Increase in the jurisdiction of the court to €50,000.
In particular declaratory orders are coming to the attention of practitioners as an effective
and efficient means of limiting the damage caused by defamatory publications and at least
three applications have been reported in the national media from Dublin Circuit Court alone.
While prior to the coming into force of the bill it was suspected that these provisions would
be effectively ignored it is submitted that this is now evidently not the case.
DECLARATORY, SUMMARY AND CORRECTIVE RELIEF
A declaration of falsity is not a remedy available at common law in libel or slander – see
Loutchansky v Times Newspapers Ltd – unreported 16/1/2001 - Gray J on Queens Bench –
endorsed by the Court of Appeal in Jameel (Yousef) v Dow Jones & Co Inc [2005] Q.B. 946
at 67 and previously would only arise in actions for slander of title. Nor could the court by
way of injunction or otherwise direct that a publisher publish a correction. It is remarkable
that the law of defamation made no allowance for the most simple form of salve, a clear
statement from the court that the material is untrue and defamatory of the aggrieved party.
English Law – Defamation Act 1996
In 1996 the law in England and Wales was altered substantially from the common law to
allow for summary disposal of defamation actions. Gatley at paragraph 32.14 of the 11th
Edition (p1077) paraphrases Lord Hoffman’s Speech on the English Defamation Bill 1996
which declared that the Bill provided a person libelled with a means of clearing his
reputation quickly, and a defendant, who had inadvertently published defamatory matter,
with a route by which a costly “gold-digging” claim could be avoided. The Working Group of
the Supreme Court Procedure Committee chaired by Lord Justice Neill recommended against
the changes on the basis that there was not a significant number of “trivial libels” which
would be suited to summary disposal.
The summary procedure under the Section 8 of the 1996 Act provides that a judge may
dismiss a claim where there is (a) no realistic prospect of success and (b) there is no other
reason why it should be tried.
“Section 8
Summary disposal of claim.
(1) In defamation proceedings the court may dispose summarily of the plaintiff’s claim in
accordance with the following provisions.
(2) The court may dismiss the plaintiff’s claim if it appears to the court that it has no realistic
prospect of success and there is no reason why it should be tried.
(3) The court may give judgment for the plaintiff and grant him summary relief (see section
9) if it appears to the court that there is no defence to the claim which has a realistic
prospect of success, and that there is no other reason why the claim should be tried.
Unless the plaintiff asks for summary relief, the court shall not act under this subsection
unless it is satisfied that summary relief will adequately compensate him for the wrong he
has suffered.
(4) In considering whether a claim should be tried the court shall have regard to—
(a) whether all the persons who are or might be defendants in respect of the
publication complained of are before the court;
(b) whether summary disposal of the claim against another defendant would be
inappropriate;
(c) the extent to which there is a conflict of evidence;
(d) the seriousness of the alleged wrong (as regards the content of the statement
and the extent of publication); and
(e) whether it is justifiable in the circumstances to proceed to a full trial.
(5) Proceedings under this section shall be heard and determined without a jury.
9
Meaning of summary relief.
(1) For the purposes of section 8 (summary disposal of claim) “summary relief” means such
of the following as may be appropriate—
(a) a declaration that the statement was false and defamatory of the plaintiff;
(b) an order that the defendant publish or cause to be published a suitable correction
and apology;
(c) damages not exceeding £10,000 or such other amount as may be prescribed by
order of the Lord Chancellor;
(d) an order restraining the defendant from publishing or further publishing the
matter complained of.
(2) The content of any correction and apology, and the time, manner, form and place of
publication, shall be for the parties to agree.
If they cannot agree on the content, the court may direct the defendant to publish or
cause to be published a summary of the court’s judgment agreed by the parties or settled
by the court in accordance with rules of court.
If they cannot agree on the time, manner, form or place of publication, the court may
direct the defendant to take such reasonable and practicable steps as the court considers
appropriate.”
The Act expressly provides that application for summary relief may be made at any time in
the proceedings. In summary under of the Act the a judge may grant judgment and
summary relief to a claimant if it appears that there is (a) no defence to the claim which has
a reasonable prospect of success and (b) there is no other reason why the claim should be
tried
Gatley notes that claimant applications have been rare. (see Gatley 11th edit para 32.16 et
seq.) and that the provisions have been more often used by defendants as a means to
compel a claimant to have his claim determined under summary procedure rather than full
jury trial. The authors then go on to comment that the procedure has fallen out of favour in
recent years.
Report of Legal Advisory Group on Defamation
In accordance with the then programme for government the Minister for Justice in 2002
formed a body to advise and recommend amendment and reform of the law of defamation.
The group reported its recommendations in 2003 and, in so far as this paper is concerned,
those recommendations form an essential launch pad for any substantive analysis of the
2009 Act.
Paragraph 42 of the report of the Legal Advisory Group states as follows
“The Group endorses fully one of the essential elements in the original Law Reform
Commission recommendations, namely, the need to develop expeditious remedies, other
than damages, for those plaintiffs whose primary interest lies in the vindication of their
reputation. In this context, the Group supported fully the incorporation in legislation of a
new remedy to be known as a declaratory judgment. The Group also supported the basic
idea underlying the proposal for other new remedies to be known as correction/declaratory
orders but felt that the proposals as originally presented could be adapted so as to allow for
a simpler, more streamlined, remedy. The Group took note of the fact that expedition in
procedure is a feature of legislation introduced recently in both New South Wales and the
Australian Capital Territory and also took note of certain procedural provisions which were
introduced in the United Kingdom in 1996 whereby it is possible for a plaintiff to apply to the
court to have a defamation action disposed of in a summary manner by a judge sitting
alone. The Group recommends that a procedure analogous to that in force in the UK be
introduced in this jurisdiction. However, it takes the view that, in certain circumstances, this
procedure was also one which a defendant might choose to utilise and, therefore, did not
think that it should be confined solely to plaintiffs. The Group also recommends that the
relief available in a procedure of this kind should not include damages, always bearing in
mind that the ultimate decision as to whether or not the matter was appropriate for
summary disposal would rest with the court. The purpose of a procedure of this kind is
essentially to provide a mechanism whereby, in an appropriate case, a defamation action
can be “fast-tracked”.
The report summarises the group's recommendations in the following bullet points.
“ A plaintiff in defamation proceedings should be able to apply to the court for a judgment in
his or her favour and for summary relief to be granted.
. A defendant in defamation proceedings should be able to apply to the court, in an
appropriate case, for the dismissal of a plaintiff’s claim.
. Summary relief could include matters such as declaratory judgments and correction orders
but would not include damages.
. Proceedings of this kind would be heard and determined by a judge sitting alone.”
The group then went on to provide a proposed general scheme for a bill including the
following provision under heading 12:
“(1) A person claiming to be the subject of a statement in allegedly defamatory matter may
bring proceedings for an order that the statement is false and defamatory. Such order shall
be known (and is in this Act referred to) as a "declaratory judgment".
(2) A claim for an order under this Head shall not be considered by the court unless the
court is satisfied that the plaintiff made an adequate, sufficient and timely request for an
adequate, sufficient and timely apology, correction or retraction in respect of the matter
complained of and that the defendant failed to make such an apology, correction or
retraction.
(3) No damages shall be awarded in proceedings for a declaratory judgment.
(4) Any privilege or defence existing at common law, under statute or by virtue of the
Constitution shall apply to proceedings for a declaratory judgment in like manner as they
apply to other proceedings for defamation.
(6) A plaintiff who brings an action under subhead (1), shall not, in respect of the statement
the subject of the action, be entitled to assert any other claim or have any other cause of
action arising out of the same publication.
(7) An application for an order under subhead (1) shall be made in either the High Court or
the Circuit Court and where the application is made to the High Court it shall be heard by a
judge sitting alone.
(8) Any application for relief under this section shall be commenced by way of originating
notice of motion with grounding affidavit and the court shall give directions in the
proceedings.”
The group then report then went on to summarise this heading as providing “a new civil
remedy” to “provide an expeditious avenue of redress where damages are not being
sought.”
Defamation Act 2009
There are therefore two separate and distinct avenues for seeking summary relief or an
expeditious hearing under the Defamation Act 2009, namely Section 28 and Section 34.
Under Section 34 it is possible to seek Summary Relief in proceedings for damages for
Defamation.
34. — (1) The court in a defamation action may, upon the application of the plaintiff, grant
summary relief to the plaintiff if it is satisfied that—
(a) the statement in respect of which the action was brought is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to
succeed.
(2) The court in a defamation action may, upon the application of the defendant,
dismiss the action if it is satisfied that the statement in respect of which the action was
brought is not reasonably capable of being found to have a defamatory meaning.
(3) An application under this section shall be brought by motion on notice to the
other party to the action and shall be grounded on an affidavit.
(4) An application under this section shall not be heard or determined in the presence of
a jury
Summary Relief is defined in section 2 of the Act as (a) a correction order (Section 30) or
(b) “an order prohibiting further publication of the statement to which the action
relates”(section 33). It is worth noting that the bill as proposed by the 2003 Working Group
included “Declaratory Relief” under this heading but it was not included in the Act.
The section differs in a number of distinct ways from the English Act. First while the court on
the English System is obliged to consider whether there is any other reason why a claim
should be tried under the 2009 act the tests are very straightforward and make contain no
such saver. If a statement is defamatory of the plaintiff and the defendant has not defence
which is reasonably likely to succeed then the Plaintiff is entitled to summary relief. On the
other hand if a defendant can show that the statement is not capable of being defamatory it
may have the claim against it dismissed.
Another significant difference is that there is no provision for the Court to assess or limit
damages at that point and it would seem that where the court grants summary relief the
appropriate order is to direct that the matter be sent for assessment of damages. It follows
from this that while the English provisions provide that an Defendant may apply for the
court to grant summary relief to the Plaintiff it is not possible for the defendant to do so
under the 2009 Act, as in the absence of a mechanism for limiting damages there would of
course be no benefit to a defendant in making such an application.
Section 28 Declaratory Orders
Section 28 of the 2009 Act States as follows:
(1) A person who claims to be the subject of a statement that he or she alleges is
defamatory may apply to the Circuit Court for an order (in this act referred to as a
“declaratory order”) that the statement is false and defamatory of him or her.
(2) Upon an application under this section, the Court shall make a declaratory order if it is
satisfied that –
(a) the statement is defamatory of the applicant and the respondent has no defence to
the application
(b) the applicant requested the respondent to make and publish and apology, correction
or retraction in relation to the statement.
(c) The respondent failed or refused to accede to that request or where he or she
acceded to that request failed or refused to give the apology, correction or retraction
the same or similar prominence as was given by the respondent to the statement
concerned.
(3) For the avoidance of doubt, an applicant for a declaratory order shall not be required to
prove that the statement to which the application concerned relates is false.
(4) Where an application is made under this section, the applicant shall not be entitled to
bring any other proceedings in respect of any cause of action arising out of the statement to
which the application relates.
(5) An application under this section shall be brought by motion on notice to the respondent
grounded on affidavit.
(6) Where a court makes a declaratory order, it may, in addition, make an order under
section 30 or 33 , upon an application by the applicant in that behalf.
(7) The court may, for the purposes of making a determination in relation to an application
under this section in an expeditious manner, give directions in relation to the delivery of
pleadings and the time and manner of trial of any issues raised in the course of such an
application
(8) No order in relation to damages shall be made upon an application under this section.
(9) An application under this section shall be made to the Circuit Court sitting in the circuit
where—
(a) the statement to which the application relates was published, or
(b) the defendant or one of the defendants, as the case may be, resides.
The first point to note is that the section differs from that proposed by the Legal Advisory
Group in that it confers exclusive jurisdiction on the Circuit Court and while that has the
admirable aim of reducing costs it has the unfortunate downside of leaving no reported
decisions for the purpose of this paper though as already mentioned a number have already
featured in and been reported by the national media.
Procedure Under Section 28
As is apparent under the terms of the section itself an application must be brought by way
of notice of motion and grounded on affidavit. While it is not immediately apparent from the
Act that this is an originating notice of motion order 5C of the Circuit Court Rules as inserted
by S.I. 486 of 2009 provides:
10. (1) A motion referred to in section 28(5) shall be an originating notice of motion entitled
in the matter of section 28 and in which the person who claims to be the subject of a
statement that he or she alleges is defamatory shall be named as applicant and the person
against whom relief is sought shall be named as respondent.
(2) A grounding affidavit referred to in section 28(5) shall:
(a)
(b)
(c)
(d)
(e)
set out the circumstances in which it is claimed that the alleged defamatory
statement was made, including the time and method of publication;
set out the grounds on which it is claimed that the statement is defamatory of
the applicant;
contain an averment that the respondent has no defence to the application;
contain an averment that the applicant requested the respondent to make and
publish an apology, correction or retraction (as the case maybe) in relation to the
alleged defamatory statement and specify when and the manner in which the
applicant requested the respondent to make and publish such apology, correction
or retraction in relation to the alleged defamatory statement (and if in writing,
exhibit a copy of such request and proof of delivery of same), and
produce evidence of the response (if any) by the respondent to the request (and
if in writing, exhibit a copy of such response).
Thus while there has been at least one application before the court under Section 28 which
was brought by way of Civil Bill and Notice of Motion it is submitted that, in the opinion this
author, the application was improperly constituted as there is no provision under the rules
for issuing a civil bill seeking declaratory relief under section 28. The only mechanism to
bring such an application is by way of originating notice of motion and it is submitted that
this is the only mechanism appropriate for conferring jurisdiction on the court to deal with
the application.
On the return date the Court will direct pleadings and allow for the filing of a replying
affidavit or affidavits. There is no clear precedent as to the procedures to be followed at this
stage Section 28 (7) provides:
“The court may, for the purposes of making a determination in relation to an application
under this section in an expeditious manner, give directions in relation to the delivery of
pleadings and the time and manner of trial of any issues raised in the course of such an
application”.
It is clear therefore that the court is not limited to determining the issue on the affidavits
before it. In the small number of cases that have been before the court the court has dealt
with the issue firstly on the affidavits before it and has made a decision on that stage as to
whether or not to grant a Declaratory Order on the basis of the affidavits.
It is submitted that the appropriate test to be applied as to whether or not to grant
judgment on the affidavits is the standard law on the summary judgment as set out in the
Supreme Court case First National Commercial Bank plc. v. Anglin [1996] 1 I.R. 75. In that
case Murphy J. speaking for the court said at pp. 78 and 79: "For the court to grant summary judgment to a plaintiff and to refuse leave to defend it is
not sufficient that the court should have reason to doubt the bona fides of the defendant or
to doubt whether the defendant has a genuine cause of action (see Irish Dunlop Co. Ltd. v.
Ralph (1958) 95 I.L.T.R. 70). In my view the test to be applied is that laid down in Banque
de Paris v. de Naray [1984] 1 Lloyd's Rep. 21, which was referred to in the judgment of the
President of the High Court and reaffirmed in National Westminster Bank plc. v. Daniel
[1993] 1 W.L.R. 1453. The principle laid down in the Banque de Paris case is summarised in
the headnote thereto in the following terms: 'The mere assertion in an affidavit of a given situation which was to be the basis of a
defence did not of itself provide leave to defend; the court had to look at the whole situation
to see whether the defendant had satisfied the court that there was a fair or reasonable
probability of the defendant's having a real or bona fide defence.'
In the National Westminster Bank case, Glidewell L.J. identified two questions to be posed in
determining whether leave to defend should be given. He expressed the matter as follows:
'I think it right to ask, in the words of Ackner L.J. in the Banque de Paris case, at p. 23, 'Is
there a fair or reasonable probability of the defendant having a real or bona fide defence?'
The test posed by Lloyd L.J. in Standard Chartered Bank v. Yaacoub (Unreported, Court of
Appeal, (Civil Division), 3rd August, 1990) 'Is what the defendant says credible?', amounts
to much the same thing as I see it. If it is not credible then there is no fair or reasonable
probability of the defendant having a defence'."
If there is no difference between the parties on the relevant facts on the affidavit then it will
be open to the court to assess whether or not on the basis of those facts there has been a
defamatory statement and whether the defendant has shown a fair and reasonable
probability of having a real or bona fide defence. If the court finds no defence at this stage
it is open to the Judge to grant the declaratory order at this stage without further
proceeding.
If the court finds that there has been no proper request for a correction within the meaning
of the Act at this stage then the court ought to dismiss the proceedings at that stage as the
making of such a request is a condition precedent to the bringing of an application before
the court. Any failure to make the request cannot be rectified or remedied after the
application is brought before the court.
If the defendant meets the test set out above then this is not the end of the matter. Section
28 requires that the court determine whether “the statement is defamatory of the applicant
and the respondent has no defence to the application”. It is not restricted to being a
summary procedure and requires the court to “make a determination” of these issues in an
“expeditious manner”. As such, if the court cannot determine the issues by way of affidavit
then ought at that stage to issue directions as to pleadings and mode of trial. There is
unfortunately again no guidance provided in relation to these issues but in view of the
requirement that the court act in an expeditious manner it is submitted that the court could
only direct pleading and evidence in relation to the issues found to be in contention as a
result of the exchange of affidavits. Thus if it is the case that the plaintiff has established his
entitlement to relief under the section and the only issues in contention are those of defence
then it would not be the most expeditious course to direct the service of points of claim but
simply to direct the defendant to deliver points of defence. Similarly it might simply grant
leave to one or either party to cross-examine. Because defamation proceedings are almost
uniquely dependent on the nature of the defence being proffered it is difficult to say what
the appropriate mode of trial would be in the absence of considering the affidavits delivered
on behalf of the defendant. That being said it would seem to me that where the plaintiff has
foregone his entitlement to damages in order to seek an expeditious trial of the matter, it is
incumbent on the court to ensure that the actual matters at issue are dealt with as
efficiently as possible. As such the court ought not require the calling of oral testimony
where the matters have been adequately dealt with in an uncontroverted manner on
affidavit. Thus, for example, where the Plaintiff has established his entitlement to relief
under the section it would seem that it would be unnecessary and inefficient to require that
he give oral evidence unless the defendant is relying on truth (nèe justification) as a
defence.
Why Proceed by Way of Declaratory Order
Historically, and with good reason, the principal goal of defamation proceedings is to
achieve an award of damages. The greater the award from the jury, the greater the signal
that the Plaintiff has been wronged. The difficulty is that achieving such a result can be
difficult, expensive, time consuming and fraught with risks. A plaintiff can even go so far as
to win her action but by virtue of matters entirely extraneous to the defamation receive a
negligible award of damages. Historically defendants have been in a position to throw a lot
of mud (and not always legitimately) at a Plaintiff as soon as he or she loudly weeps as to
the damage done to their reputation by reason of statement or another. Also a protracted
hearing on the defamation can often mean a very public re-airing of a slur long forgotten by
the general public. Public figures in particular run very serious risks in re-airing the subject
matter of a complaint some two years or more after the defamation.
The advantages to a plaintiff of the declaratory system as follows:
(a)
(b)
(c)
(d)
(e)
The court is obliged to achieve a determination as expeditiously as possible
thereby applying the cure as soon as possible after the slur.
By virtue of the fact that the procedure is grounded on affidavit a plaintiff is
insulated and protected from the mud-slinging which can accompany defamation
proceedings. A plaintiff has a significantly greater level of control of the issues in
relation to his or her life that will be aired at the hearing of the action. A thick
skin is not necessarily a pre-requisite to bringing declaratory proceedings
Even a plaintiff who may be unpopular or generally unmeritorious may be
entitled to succeed and will do so in circumstances which could not be ensured in
a jury trial.
A defendant is required to disclose fully its defence at the earliest possible stage.
Costs (and therefore risks) are kept to a minimum for both sides.
Thus declaratory applications are peculiarly suited to a number of distinct types of Plaintiff.
The first such type is the corporate entities which has traditionally not sought damages for
defamation in this jurisdiction (and indeed it is proposed under the draft English Bill that
companies lose their entitlement to sue for defamation). Where a commercial entity is
defamed it is submitted that it is of utmost importance that the damage be stopped as
quickly as possible and that the company is in a position to utilise a court declaration as
confirmation of the untruth of the allegation.
Secondly the orders are particularly suited to individuals of high net worth and indeed any
person who wishes to loudly proclaim that they are not bringing the action for the money.
Yet again those persons get a quick and effective remedy and the media cannot accuse a
plaintiff of being a gold-digger if they are not seeking damages.
Similarly politicians and other persons who depend on the goodwill of the public at large
have much to gain from seeking relief under the declaratory order.
Finally the person who’s reputation is already close to rock bottom but who has been
defamed would be better placed to seek the remedy under Section 28 rather than bring an
action for damages before a jury such as in the case of person convicted on charges of
possession of illegal pornography who successfully sued a tabloid for alleging he had
conducted “a seedy and weird relationship with another prisoner”. It is unlikely that this
applicant would ever have succeeded before a jury or indeed in retrieving damages from a
judge sitting alone.
Prohibition and Correction Orders
Pursuant on a determination under either Section 28 or Section 34 the court may make an
order directing the publication of a correction under Section 30 and/or prohibiting the
publication of defamatory material under Section 33.
The power under section 30 is considerably broader than that given to the English Courts in
the relevant section. Under S.9 (2) of the English Act states:
“The content of any correction and apology, and the time, manner, form and place of
publication, shall be for the parties to agree. If they cannot agree on the content, the court
may direct the defendant to publish or cause to be published a summary of the court’s
judgment agreed by the parties or settled by the court in accordance with rules of court. If
they cannot agree on the time, manner, form or place of publication, the court may direct
the defendant to take such reasonable and practicable steps as the court considers
appropriate.”
Gatley, (11th edit at p32.24) states that “clearly it was considered undesirable that the court
take an active role in formulating the terms of the correction and apology”.
It would appear that the Oireachtas had a little more faith in the ability of the judiciary (or
perhaps a little less faith in the bona fides of parties to defamation suits) and provided
under Section 30 of the 2009 Act that a correction order shall
“(a ) specify—
(i) the date and time upon which, or
(ii) the period not later than the expiration of which, the correction order shall be published,
and
(b ) specify the form, content, extent and manner of publication of the correction, and shall,
unless the plaintiff otherwise requests, require the correction to be published in such
manner as will ensure that it is communicated to all or substantially all of those persons to
whom the defamatory statement was published.”
Section 33 of the act provides “the High Court, or where a defamation action has been
brought, the court in which it was brought, may, upon the application of the plaintiff, make
an order prohibiting the publication or further publication of the statement in respect of
which the application was made”. It is worth noting that the section appears to envisage
circumstances whereby proceedings can be brought before the High Court purely for
injunctive relief and no other relief. In respect of the Circuit Court the jurisdiction is limited
to granting injunctive relief as ancillary relief in proceedings for either damages or
declaratory orders. That being said this is a rare piece of legislation which extends the
Circuit Court’s injunctive or equitable powers beyond its traditional remit of real property.
DAMAGES
While the purpose of Section 28 was clearly make desirable the bringing of defamation
proceedings in the Circuit Court it would appear that the provisions in relation to damages
had the diametrically opposite motive. The draft English 2011 bill seeks to significantly
reduce the role of juries in defamation cases. The Legal Advisory Group in 2003 did not
share this antipathy. At paragraph 19 of the report it they state.
“Given the recommendations made by the Group regarding High Court defamation actions,
the role of the Circuit Court in such actions was then considered. Concern was expressed
that the proposed increase in that court’s jurisdiction from €38,092 to
€100,000 could, if implemented in the context of defamation actions, largely nullify the
valuable role of the jury in such actions since it was likely that a large number of cases
would fall outside the ambit of the High Court’s jurisdiction. At the same time, the view was
taken that it was important to ensure that parties be discouraged from initiating defamation
proceedings in a court of higher jurisdiction simply because the potential for a damages
award might be perceived to be greater in that court. The Group was anxious to reconcile
these differing considerations. Accordingly, it was proposed that the Circuit
Court should, in future, have jurisdiction in defamation cases where the amount of the
damages claimed does not exceed €50,000. Such a limit could be varied from time to time
using the provisions of section 16 of the Courts Act 1991 which allows for variations in the
monetary jurisdiction of the courts to be made by way of Government order. The Group also
recommended that the legislative provisions dealing with the costs implications of failing to
reach the jurisdiction of the court in which the suit is brought be amended to reflect the
proposed change in Circuit Court jurisdiction. It is considered that these provisions, if utilised
to their full potential, could have a beneficial effect in terms of ensuring that plaintiffs bring
defamation proceedings in the court which is most appropriate to the circumstances of their
particular case.
It is submitted that the change in damages jurisdiction is unlikely to alter the traditional
choice of jurisdiction set out at the beginning of this paper and in all likelihood is will
probably mean an increase in damages for actions traditionally issued in the circuit court
rather than a saving for defendants by reason of plaintiffs electing for the lower court on the
basis of raised threshold.
RECENT DEVELOPMENTS IN DEFAMATION LAW
DEVELOPMENTS IN THE DEFENCES OF HONEST OPINION, AND FAIR AND
REASONABLE PUBLICATION ON A MATTER OF PUBLIC INTEREST.
Paper by Eoin McCullough SC
9th April 2011
1.
The Defamation Act 2009 came into operation on the 1st January 201075. It applies
only to causes of action accruing after its commencement.76 Although the Act has had
a substantial effect on practice, almost nothing of significance has come to court
bearing upon its interpretation. Thus, one must look elsewhere to see what
developments there have been in the law of defamation since the implementation of
the Act.
2.
That in turn raises an issue as to the relevance to defamation law in Ireland of
developments in other jurisdictions. In England, the law of libel and slander is based
upon the common law, although subject to statutory modifications, principally the
Defamation Acts of 1952 and 1996. In Ireland, the Defamation Act 2009 is now the
principle source of the law of defamation. It should be noted in passing that section
3(2) of the 2009 Act provides as follows:-
“This Act shall not affect the operation of the general law in relation
to defamation except to the extent that it provides otherwise (either
expressly or by necessary implication).”
While it might appear therefore that the intention of the Oireachtas was to keep alive
the pre-existing common law of defamation, section 15(1) of the Act provides as
follows:-
“Subject to sections 17(1) and 18(1), any defence that, immediately
before the commencement of this Part, could have been pleaded as a
defence in an action for libel or slander is abolished.”
While there is saver for defences that arose under statute77, namely that the statutory
defences that were available prior to the coming into operation of the 2009 Act
75
Defamation Act 2009 (Commencement) Order 2009 (SI No. 517 of 2009)
Section 3(1)
77
Section 15(2)
76
continue to be available, the previous defences of fair comment and Reynolds type
privilege with which this paper is concerned did not have a statutory origin. Thus,
the exclusive basis for these defences in future will be the 2009 Act.
Notwithstanding that, developments elsewhere continue to be relevant. Nor is this
surprising: the 2009 Act was (as far as substantive law was concerned) largely a
codifying measure, and was thus based on the law that continues to apply in England.
HONEST OPINION
3.
Section 20 of the 2009 Act creates the defence of honest opinion.
There is little
difference between the new defence of honest opinion and the old defence of fair
comment.
Honest opinion is available as a defence where each of the following
criteria can be established by the defendant:(a)
The defendant believes in the truth of the statement, or where the defendant
was not the author of the statement, he believed that the author believed it
was true:
(b)
(i)
(ii)
The opinion was based on allegations of fact.
(I)
specified in the Statement containing the opinion or
(II)
referred to in that statement, that were known, or might
reasonably have been expected to have been known, by
the persons to whom the statement was published, or
the opinion was based on allegations of fact to which
(I)
the defence of absolute privilege, or
(II)
the defence of qualified privilege, would apply:
and
(c)
The opinion related to a matter of public interest.
Where the opinion is based on allegations of fact, a defendant cannot rely on honest
opinion unless either (a) he proves the truth of all of the allegations, or (b) where
some allegations are proved and some not, his opinion is honestly held in light of the
allegations of fact which have been proved. 78
4.
78
Malice does not vitiate the defence of honest opinion, but the defence does not apply
unless the plaintiff can show that he honestly believed the statement of opinion to be
true.
This is not really a change, save in respect of the burden of proof. Malice
vitiated the old defence of fair comment, but it had been established that malice did
not have the same meaning in fair comment as it had in qualified privilege. Malice in
the former was essentially confined to circumstances where there was an absence of
belief in the stated opinion. Spite or ill will could not be relied upon to defeat a
defence of fair comment, although it could be relied upon to defeat a defence of
Section 20 (3)(a)
qualified privilege.79 This no doubt is why malice or ill will does not vitiate the new
defence of honest opinion. In fair comment, the burden of alleging and proving
malice lay on the plaintiff. In honest opinion, the burden of alleging and proving belief
in the truth of the statement lies on the defendant.
5.
In British Chiropractic Association v. Singh [2011] 1 WLR 133, the Court of Appeal in
England, relying in part upon the renaming of the defence in the Irish Act, said that it
would be better to describe the defence in that jurisdiction in future as one of “honest
opinion”. It said that “……to describe the defence for what it is would lend greater
emphasis to its importance as an essential ingredient of the right to free expression.”
6.
In Singh, the defendant, a scientist and science writer, wrote an article in a national
newspaper which stated that the plaintiff claimed that its members could help treat
children with various ailments “even though there is not a jot of evidence” and that it
“happily promotes bogus treatments.” In the High Court, it had been ruled that these
were statements of fact, which fell to be defended as justification or nor at all. The
Court of Appeal disagreed. The statements made by the defendant may look like
statements of fact, but there have been indications in previous cases that inferences of
fact might in an appropriate case constitute expressions of opinion.80 An often quoted
example is that of Ferguson J. in the New South Wales case of Myerson v. Smith’s
Weekly (1923) 24 SR (NSW) 20, 26:
“To say that a man’s conduct was dishonourable is not comment; it is
a statement of fact. To say that he did certain things and that his
conduct was dishonourable is a statement of fact coupled with a
comment.”81
7.
79
The significance of Singh is that it confirms and expands this point of view. The Court
of Appeal held that the comments set out above were expressions of opinion. The
distinction between fact and comment falls to be made in the context of the particular
article and the dispute to which it relates. In areas of scientific controversy, the
relationship of primary fact to secondary fact, and of both to permissible inference, is
heavily and legitimately contested. The Court of Appeal clearly thought that it was
better to let scientific controversies be determined by public debate, and not in the
courts. It said :-
th
See Gatley (11 Ed.) paras. 12.25 to 12.26 for discussion. The difference in the meaning of malice as
between the two defences arose from their different social purpose. Qualified privilege applies because a
person has duty to communicate information that ought to be communicated. He ought therefore to be
protected where this is his dominant motive, and not where he is in fact motivated by spite or ill will. Fair
comment is not based on any notion of the performance of a duty, but rather on the importance of protecting
the freedom of comment, irrespective of motive. Thus, honest opinion ought to be protected, no matter what
the motivation of the person communicating it.
80
See Gatley (11th Ed) at para. 12.7.
81
In Joseph v. Spiller, Lord Philips PSC in the UK Supreme Court said (paragraph 5) that this example is not
wholly satisfactory. He said that a comment such as that contained in the first sentcence is not a simple
statement of fact, but is rather a comment coupled with an allegation of unspecified conduct upon which the
comment is based. He continued however by saying that judges and commentators have treated a comment
that does not identify the conduct on which it is based as if it were a statement of fact, which must be
defended by justification and not fair comment.
“The opinion may be mistaken, but to allow that party which is being
denounced on the basis of it to compel its author to prove in court
what he has asserted by way of argument is to invite the court to
become an Orwellian Ministry of truth. Milton, recalling in the
Areopagitica his visit to Italy in 1638 to 1638:
‘I have sat among their learned men, for that honour I had,
and being counted happy to be borne in such a place of
philosophic freedom, as I supposed England was,
while
themselves did nothing but bemoan the servile condition in
which learning amongst them was brought ….. but nothing
had been there written now these many years but flattery and
fustian. There it was that I found and visited the famous
Gallileo grown old, a prisoner of the Inquisition, for thinking in
astronomy otherwise than the Franciscan and Dominican
licensers thought.’
This is a pass to which we ought not to come again.”
The report does not reveal whether the quote was suggested by counsel, or came
from the court’s store of knowledge.
8.
Singh is relevant to the defence of honest opinion under section 20. Section 20 offers
no guide as to how one distinguishes opinion from fact, and the common law in that
issue will continue to be relevant. On its face, Singh appears to expand the range of
material that can legitimately be described as opinion as opposed to fact, at least in
areas of scientific controversy
9.
In Joseph v. Spiller [2010] 3 WLR 1791, the UK Supreme Court addressed an issue
that has long caused difficulty in this area of the law, but that was firmly addressed
in section 20 of the 2009 Act.
The question is that of the extent to which the
defendant, in order to be able to take advantage of the defence, must have set out for
the reader the facts upon which the comment is based. In the Court of Final Appeal
of Hong Kong in Tsi Wai Chun v. Cheng [2001] EMLR 777, Lord Nicholls had set out
what he said were the five component parts of the defence of fair comment,
describing them as “non-controversial matters” which were “well established”. In
relation to this issue, he said :-
“19.
Next, the comment must explicitly or implicitly indicate, at last
in general terms,
what are the facts upon which the
comment is being made. The reader or hearer should be in a
position to judge for himself how far the comment was well
founded.”
This had been questioned in both Gatley82 and in Duncan and Neil83 The issue is
particularly acute where, for example, the comment is made on a subject of political
controversy, where the author is perhaps entitled to assume that the reader will have
a fair degree of knowledge of the factual background. One might expect it also to
arise where the comment is made upon highly complex matters, such as for instance
82
83
th
Gatley (11 Ed) para. 12.8
Duncan and Neil on Defamation (3rd Ed.) para 13.20
a tribunal report, where it is simple unrealistic to expect that the author will set out
the entire of the relevant background facts. In Joseph v. Spiller, the Supreme Court
determined that what Lord Nicholls had said was wrong. It was not necessary that the
comment should identify the matters on which it is based with sufficient particularity to
enable the reader to judge for himself whether it was well founded. Lord Philips said
(paragraph 104) :-
“The comment must, however, identify at least in general
terms what it is that has led the commentator to make the
comment, so that the reader can understand what the
comment is about and the commentator can, if challenged,
explain by giving particulars of the subject matter of his
comment why he expressed the views that he did. A fair
balance must be struck between allowing a critic the freedom
to express himself as he will and requiring him to identify to
his readers why it is that he is making the criticism.”
Lord Philips said (paragraph 105) that Lord Nicholls’ proposition was thus more
correctly put as follows:
“Next, the comment must explicitly or implicitly indicate, at
least in general terms, the facts on which it is based.”
When pressed to make wholesale alterations in the law relating to fair comment, the
Supreme Court said that it felt those reforms should be considered, but that this was
a matter for parliament. The most that it felt able to do was to say that in future the
defence should be renamed “honest comment”.
10.
One can certainly envisage cases in which protection will be obtained on the basis of
the test in Joseph v. Spiller, but not on the basis of the test in section 20. There is no
great difference between the requirement in Joseph that the commentator must
“indicate” the facts on which he basis his comment, and the requirement in section
20 that the commentator must “refer to” those facts. The important distinction
however is that, according to the test in Joseph, once the commentator has stated
generally what it is that he is talking about, he is protected, irrespective of the fact
that the subject matter of his comment may be obscure and generally unknown to the
public. Under section 20, there will be no protection unless the subject matter is
known, or might reasonably be expected to be known, to the public. There will be
many cases in which this makes no difference, including cases of comment on matters
of general political controversy or wide public interest. There will however be many
cases where it might make a difference. If for instance, the author of a comment such
as that made in Singh was writing in an ordinary daily newspaper, he would have to
take care to give a reasonably specific indication of the facts upon which he was
basing his comment. It could not reasonably be assumed that members of the public
generally would be aware of the details of scientific controversy upon which an expert
might base an opinion. Whether Joseph v Spiller will have any impact on the
interpretation of section 20 remains to be seen.
FAIR AND REASONABLE PUBLICATION ON A MATTER OF PUBLIC INTEREST
11.
Section 26 of the 2009 Act provides for this new defence. A defendant must establish
that the statement was published :-
(a)
In good faith – section 26(1)(a)(i):
(b)
In the course of, or for the purpose of, the discussion of a subject of public
interest, the discussion which was for the public benefit - section 26(1)(a)(ii).
(c)
In a manner and to an extent which did not exceed what was reasonably
sufficient in all the circumstances – section 26(1)(b), and
(d)
In all the circumstances of the case, it was fair and reasonable to publish this
statement – section 26(1)(c).
The requirement in section 26(1)(c) that a defendant must show that, in all of the
circumstances of the case, it was fair and reasonable to publish the statement is
fleshed out in section 26(2). It lists ten factors which, insofar as they are relevant,
shall be taken into account by the court in assessing whether it was fair and
reasonable to publish the statement. The ten factors are as follows:(a)
The extent to which the statement concerned refers to the
performance by the person of his or her public function;
(b)
The seriousness of any allegations made in the statement;
(c)
The context and content (including the language used) of the
statement;
(d)
The extent to which the statement drew a distinction between
suspicions, allegations and facts;
(e)
The extent to which there were exceptional circumstances that
necessitated the publication of the statement and the date of
publication;
(f)
In the case of a statement published in a periodical by a person who,
at the time of publication, was a member of the Press Council, the
extent to which the person adhered to the code of standards of the
Press Council and abided by determinations of the Press Ombudsman
and determinations of the Press Council;
(g)
In the case of a statement published in a periodical by a person who,
at the time of publication, was not a member of the Press Council,
the extent to which the publisher
of the periodical adhered to
standards equivalent to the standards specified in paragraph (f);
(h)
The extent to which the plaintiff’s version of events was represented
in the publication concerned and given the same or similar
prominence as was given to the statement concerned;
(i)
If the plaintiff’s version of events was not so represented , the extent
to which a reasonable attempt was made by the publisher to obtain
and publish a response from that person: and
(j)
The attempts made, and the means used, by the defendant to verify
the assertions and allegations concerning the plaintiff in the
statement.
12.
The section 26 defence is of course based upon the defence recognised by the House
of Lords in Reynolds v Times Newspapers [2001] 2 AC 127 and developed in Jameel v.
Wall Street Journal Europe SPRL [2007] 1 AC 359. It proceeded also from a
perception, shared by the House of Lords in Reynolds, that international obligations
under the ECHR required the introduction of a defence of this nature. As yet, section
26 remains untested in litigation. Because of the common origin of the Reynolds and
the section 26 defence, and because of the continuing influence of the Convention, it
is likely that common law development will be of assistance in the interpretation of
section 26.
13.
There were however, even as of the enactment of the 2009 Act, potential differences
between the scope of section 26 on the one hand and the common law on the other
hand. This may make English cases misleading. There are two issues in particular
that arise in this regard. First, in Reynolds, Lord Nicholls had listed a series of
factors to be considered in order to assist a court in determining whether
a
duty/interest test had been established. In Jameel, the House of Lords emphasised
that, once it was determined that the subject matter of an article was of legitimate
public interest, enquiry then shifted to whether the defendant had engaged in
“responsible journalism”. The factors listed by Lord Nicholls in Reynolds were not be
considered separately as a series of hurdles to be negotiated. Rather, the issue of
responsible journalism was to be approached on a practical and flexible manner, with
due deference to editorial discretion. In Jameel, the defendant had failed to obtain
the plaintiff’s comments. The House of Lords determined that a publication may (and
in that case did) attract privilege notwithstanding this circumstance. The 2009 Act
was of course enacted after the decision in Jameel, and there may be no practical
difference between the requirement for the defendant to establish that it was “fair and
reasonable” to publish the statement, and the requirement of “responsible journalism”
as explained in Jameel. Section 26(2) certainly makes it clear that this issue is to be
determined by taking into account such matters as the court considers relevant, and it
does not seem to be a requirement that the defendant should be able to establish its
compliance with any or all of the specific factors thereafter listed. On the other hand,
simply because the factors are listed, it is very likely indeed that the jury will in fact
be asked to consider those factors. Given the structure of section 26, one has to
imagine that it is less likely that a defendant who had done what the defendant did in
Jameel would be able to mount a successful defence.
14.
Secondly, the courts in England have developed a sub-category of cases of qualified
privilege which they describe as “reportage” cases.84 In this category, a journalist
simply reports in an accurate and neutral manner both sides of a controversy which is
itself of public interest. In Roberts v. Gable [2007] EMLR 16, the Court of Appeal said
that the “reportage” doctrine was a special example of Reynolds qualified privilege,
but with different features.
Most importantly, it is irrelevant in reportage cases to
consider whether the defendant has taken steps to verify the accuracy of what is
published, and less important to consider whether the defendant has sought the
views of both sides.
If upon a proper construction of the article, the defamatory
84
See Gatley (11th ed.) para 15.16
material is attributed to another
and is not being put forward as true, then a
responsible journalist would not need to take steps to verify its accuracy.
He is
absolved from that responsibility because he is simply reporting in a neutral fashion
the fact that it has been said without adopting the truth. While section 26 certainly
does not expressly exclude a reportage defence, it is by no means clear that it easily
accommodates it. Thus, the factors listed in section 26(2) (i) and (j) cannot really arise
in a reportage case.
15.
In Flood v. Times Newspapers [2011] 1 WLR 153, the plaintiff was a police officer
against whom allegations of corruption had been made. The defendant published an
article in which it revealed that fact, and included details of the allegations that had
been made against the plaintiff. A central feature of the case was the fact that the
defendant had not made any real effort to investigate the truth of the allegations
against the plaintiff. The defendant contended that this was not fatal to the claim to
qualified privilege. The Court determined that the fact that allegations were being
investigated by the police did not relieve journalists of their obligation to verify their
accuracy. Whatever about publishing the fact that an investigation was under way,
the failure of the defendant to take reasonable steps to verify the details of the
allegations meant that the publication could not constitute responsible journalism.
16.
Although one may legitimately doubt the extent to which this decision is compatible
with the decision of the House of Lords in Jameel, or how it relates to the reportage
defence, it is certainly a decision that is roughly in accordance
with the tenor of
section 26. Section 26(2)(j) suggests that the court should take into account, inter
alia, the attempts made, and the means used, by the defendant to verify the
assertions and allegations concerning the plaintiff and the statement. While it is not
impossible, it is difficult to conceive that one could successfully mount a defence under
section 26 of an article such as that in Flood, that consisted essentially of allegations
which the defendant had made no effort to either investigate or substantiate.
17.
An interesting distinction between the law in England and the law in Ireland that is
brought into focus by Flood concerns the role of the judge and jury respectively.
Although this is not expressly stated in section 26, it appears to be envisaged that, at
a minimum, the decision as to whether it was fair and reasonable to publish the
statement would be made by the jury. That arises from the fact that section 26(2)
provides that the “court” shall take certain matters into account in determining
whether it was fair and reasonable to publish the statement, and the fact that section
26(4) provides that the word “court” means the jury, if the High Court is sitting with a
jury. In England, both the issue of public interest, and the evaluation of the
defendant’s conduct against the standard of responsible journalism, is for the judge,
although it appears that this has not proved easy to operate with trial by jury85.
18.
The issue arose in Flood, because it had been contended on behalf of the defendant,
on the basis of a statement to this effect by the Court of Appeal in Galloway v.
Telegraph Group Limited [2006] EMLR 221, that an appellate court should not
interfere with the judge’s conclusion on this type of privilege unless he had erred in
principle or reached a conclusion which was plainly wrong. The Court of Appeal in
Flood disagreed, and said that the inquiry involved in deciding whether qualified
privilege attached to a publication was a matter of judgement rather than exercise of
85
th
See Gatley 11 Ed) at 15.9 both for the statement of principle and for an analysis of the role properly played
by the jury in England.
discretion,
and raised a question of law to which there could be only one right
answer. It held that, where a first instance court had carried out a balancing exercise
of this nature, the appeal process required the appellate court to decide whether the
judge had been right or wrong, but the appellate court should bear in mind the
advantages which the trial judge had had of seeing the witnesses and how the case
had developed, particularly where the balance to be struck was between freedom of
speech and the protection of reputation. Accordingly, the court held that where the
determination was a mater of balance and proportionality, it was generally difficult
for an appellate to establish that the judge had gone wrong. Notwithstanding that,
the Court of Appeal in Flood in fact found that the trial judge had gone wrong.86
Under section 26, while it remains an open question as to whether the judge will
determine questions of good faith,
public interest and benefit, and excess
publication, it seems clear that it is up to the jury to determine the question of
whether it was fair and reasonable to publish the statement. Quite how that question
will be put to the jury remains to be determined, but one can certainly anticipate that,
once the question has been answered by the jury on foot of a proper direction, it will
be very difficult indeed to persuade the Supreme Court that the jury’s verdict was
wrong.
19.
Somewhat prior to this, in December 2009, the Supreme Court of Canada continued
the tendency across the common law world to expand the law to provide for a
Reynolds type defence. In Grant –v- Torstar Corporation (2009) SCC 61, the plaintiff
complained that he had been defamed by an article which reported on a proposed
private golf course development on his lakefront estate. The story aired the views of
local residents who were critical of the development’s environmental impact and
suspicious that he was exercising political influence behind the scenes to secure
government approval for the new golf course. The article quoted a neighbour who
said that “everyone thinks it’s a done deal” because of the plaintiff’s influence. The
reporter, an experienced journalist, attempted to verify the allegations in the article,
including asking the plaintiff for comment, which he chose not to provide.
20.
The Supreme Court determined, relying principally on the constitutional value of free
expression enshrined in the Canadian Charter of Rights and Freedoms, that the law of
defamation should be modified to provide greater protection for communications on
matters of public interest, even those which contain false imputations. To insist on
court-established certainty in reporting on matters of public interest may have the
effect not only of preventing communication of facts which a reasonable person would
accept as reliable and which were relevant and important to public debate, but also of
inhibiting political discourse and debate on matters of public importance, and impeding
the cut and thrust of discussion necessary to discovery of the truth. A defence that
would allow publishers to escape liability if they can establish that they acted
86
The proper role of the judge and jury respectively in the assessment of this type of privilege was also
discussed by the Supreme Court of Canada in Grant v Torstar (see below). The court held that it is for the judge
to determine whether the impugned statement relates to a matter of public interest. If public interest is
shown, then it is for the jury to decide whether on the evidence the defence of responsible communication is
established. That is certainly consistent with one interpretation of section 26.
responsibly in attempting to verify the information on a matter of public interest
represents a reasonable and proportionate response to the need to protect reputation
while sustaining the public exchange of information that is vital to modern society.
The court determined therefore that the law of defamation should be modified to
recognize a defence of responsible communication on matters of public interest.
21.
To be protected by this defence, first, the publication must be on a matter of public
interest. Second, the defendant must show that publication was responsible, in that
he or she was diligent in trying to verify the allegations, having regard to all the
relevant circumstances. In determining whether a publication is on a matter of public
interest, the judge must consider the subject matter of the publication as a whole.
The defamatory statement should not be scrutinized in isolation. To be of public
interest, the subject matter must be shown to be one inviting public attention, or
about which the public, or a segment of the public, has some substantial concern
because it affects the welfare of citizens, or one to which considerable public notoriety
or controversy has attached. Public interest is not confined to publications on
government and political matters, nor is it necessary that the plaintiff be a “public
figure”. The following factors may aid in determining whether a defamatory
communication on a matter of public interest was responsibly made: (a) the
seriousness of the allegation; (b) the public importance of the matter; (c) the urgency
of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s
side of the story was sought and accurately reported; (f) whether the inclusion of the
defamatory statement was justifiable; (g) whether the defamatory statement’s public
interest lay in the fact that it was made rather than its truth (“reportage”); and (h) any
other relevant circumstances.
22.
As set out above, the Supreme Court specifically approved a reportage exception as an
example of this new privilege. It held that the repetition rule does not apply to fairly
reported statements whose public interest lies in the fact that they were made rather
than in their truth or falsity. If a dispute is itself a matter of public interest and the
allegations are fairly reported, the report will be found to be responsible even if some
of the statements made may be defamatory and untrue, provided: (1) the report
attributes the statement to a person, preferably identified, thereby avoiding total
unaccountability; (2) the report indicates, expressly or implicitly, that its truth has not
been verified; (3) the report sets out both sides of the dispute fairly; and (4) the
report provides the context in which the statements were made.
23.
All of this is recognises a defence that it similar to that discussed in Reynolds and
Jameel, and that is (if anything) wider than that for which section 26 provides. It is
particularly noteworthy that it recognised a reportage defence, where the absence of
an investigation into the truth of the allegations can even be a positive virtue. As
suggested above, such a defence is less easily reconcilable with section 26, but the
fact that it expressly recognised in a jurisdiction whose law on this topic has its origin
in constitutional provisions that are similar to those of our constitution may make it
more likely that it will be recognised here.
24.
One can conclude therefore that the decisions of other common law jurisdictions will
continue to have relevance to the interpretation of the 2009 Act, and in particular to
the principles set out in section 20 (honest opinion) and section 26 (fair and
reasonable publication on a matter of public interest).
However, one would
necessarily have to be far more cautious than was heretofore the case in making use
of foreign authorities. The fact that the law of defamation has been codified in the
2009 Act may well deprive it of the flexibility that would be required to respond to
developments elsewhere, and in particular developments in the interpretation of the
ECHR in Strasbourg.
RECENT DEVELOPMENTS IN DEFAMATION LAW
SOME THOUGHTS ON RECENT DEVELOPMENTS ON BOTH SIDES OF THE IRISH
SEA
Paper by Desmond Browne QC
9th April 2011
Desmond Browne QC: [email protected]
5, Raymond Buildings, Gray’s Inn, London, WC1R 5BP
A: THE SCOPE OF THIS PAPER:
A1. It is not just in Ireland that efforts have been made in recent years to reform
and codify the law of defamation. In England some important practical changes were
introduced in the Defamation Act 1996, including the offer of amends (echoed in s. 22 &
23 Irish Defamation Act 2009) and a scheme for summary judgment where damages
are limited to £10,000, and on 15 March the Ministry of Justice put out their draft
Defamation Bill for a three-month consultation. Simultaneously a Joint Committee of both
Houses of Parliament is giving the Bill pre-legislative scrutiny, and has issued a call for
written evidence. It will also be hearing oral evidence over a six-week period starting on 27
April 2011.
A2. In introducing the draft Bill, the Lord Chancellor and Secretary of State for
Justice, Kenneth Clarke, said that it reflected “mounting concern over the past few years
that our defamation laws are not striking the right balance, but rather are having a chilling
effect on freedom of speech”. The Coalition Government has particularly emphasised the
following objectives:
● to avoid the threat of libel proceedings being used to frustrate robust
scientific and academic debate or impede responsible investigative journalism, and
● to reduce the potential for trivial and unfounded claims and address the
perception that our courts are an attractive forum for libel claimants with little connection to
England and Wales.
A3. This paper looks at three particular issues which have important practical
ramifications in both our jurisdictions:
● the operation of the offer of amends scheme
● the defence of responsible journalism on a matter of public interest, and
● Internet publication and so-called libel tourism.
A4. It also considers possible future developments in England in relation to:
● mode of trial and the role of juries, and
● the effect of the recent Strasbourg case-law, emphasising rights under
Art.10 ECHR, but also treating the right to reputation as part of the rights under Art.8
ECHR.
B: THE ENGLISH EXPERIENCE WITH OFFERS OF AMENDS:
B1. Since libel is a tort which does not require proof of an intention to refer to the
claimant or knowledge on the part of the defendant that the words are defamatory and
untrue, Parliament first sought to address the severity of the consequences by introducing
offers of amends in s.4, Defamation Act 1952.
But the scheme was of Byzantine
complexity and seldom used. Its defects were analysed in the Report of a Committee
presided over by Sir Brian Neill in July 1991, and one of its members (the future Mr Justice
Eady) drafted a new scheme, which eventually became s. 2 & 3 Defamation Act 1996.
B2. Broadly speaking, s.22, 2009 Act mirrors s.2, 1996 Act. There are the same
formal requirements that the offer is made in writing and stated to be an offer under the
Act. The wording of the 2009 Act is a little different in relation to one matter, which can
give rise to complications, the so-called “qualified offer”. S. 2(2), 1996 Act defines a
qualified offer as one “in relation to a specific defamatory meaning which the person making
the offer accepts that the statement conveys”. In contrast, s.22(2)( c), 2009 Act requires
the offeror to state whether the offer relates to the entire statement or is “in respect of (1)
part only of the statement, or (2) a particular defamatory meaning only”. In England
qualified offers tend to be made, when there are disputes over the gravity of the meaning –
typically, whether the words suggest guilt or merely reasonable cause for suspicion.
B3. The difference in the wording between s.3, 1996 Act and s.23, 2009 Act is
more pronounced, and there appear to be some important practical differences:
(1) Under s.3(2), 1996 Act acceptance of the offer disbars the claimant
from bringing or continuing defamation proceedings in respect of the publication against the
offeror. S.23(1)(d), 2009 Act contains a qualification: the ban on bringing or continuing
proceedings applies “unless the court considers that in all the circumstances of the case it is
just and proper to so do”.
(2) S.3(10), 1996 Act expressly provides that “proceedings under [the]
section shall be heard and determined without a jury”. This provision is in line with the
tendency in England in recent years to simplify proceedings and speed up their resolution by
means of trial by Judge alone (see, for example, s.69 Supreme Court Act 1981 as
interpreted in Goldsmith v. Pressdram Ltd. (1988) 1 WLR 64). Trial by Judge alone
has resulted in much greater certainty in relation to the quantification of damages. It thus
enables the parties to predict the likely damages with greater confidence and means that
many cases are settled once the offer of amends is accepted, without the need to proceed
to a hearing before a Judge. Indeed it has been said by the Court of Appeal that the main
purpose of the scheme is “to encourage the sensible compromise of defamation proceedings
without the need for an expensive jury trial”: see Milne v. Express Newspapers (2005)
1 WLR 772, [14].
B4. Without doubt the primary reason for the success of the offer of amends scheme
in England has been the teeth in s.4(2) & 3, 1996 Act. It is a brave claimant who takes on
the challenge of trying to defeat the defence by proving that the offeror “knew or had
reason to believe that the statement complained of –
(a) referred to the aggrieved party or was likely to be understood as referring
to him, and
(b) was both false and defamatory of that party.”
B5. Proving knowledge of falsity (like proof of malice) is never easy, and the English
legislation contains a presumption that until the contrary is shown, it will be assumed that
the offeror did not know and had no reason to believe that was the case. S.23(2), 2009
Act contains no such express presumption.
B6. There is a further difference which could conceivably be significant: instead of
having to prove that the offeror knew or had reason to believe such matters, in Ireland the
burden is on the plaintiff to prove that “the defendant knew or ought reasonably to have
known”. On one reading this might be thought to require an attempt at verification, where
that was reasonable to expect. In contrast, in Milne v. Express Newspapers plc (2005)
1 WLR 772 the Court of Appeal held that mere negligence on the defendant’s part did not
suffice and that s.4(3) required the defendant to prove that the defendant had acted in bad
faith. Recklessness will only suffice as reason to believe that a statement is false, if it is that
degree of recklessness which amounts to indifference to the truth: see Horrocks v Lowe
(1975) AC 135, Lord Diplock at 150.
Practical lessons:
B7. The English experience of offers of amends has been long enough to provide
some important practical lessons:
(1) It is important for the claimant to put his cards on the table from the start
in relation to both his case on meaning and on damages. This is part of his obligation under
the Defamation Protocol procedure in any event, but it is particularly important once an
offer of amends is made, since a claimant will not usually be allowed “to enlarge significantly
pleaded allegations upon the basis of which the offer was made and accepted”: see Nail v.
News Group Newspapers Ltd. (2005) 1 AER 1040, [15]. For example, a new case on
malice aggravating damages will not normally be permitted at the assessment, if has not
been notified prior to the offer being accepted. The rationale is obvious; a defendant should
be protected from making an offer on a false basis and then being ambushed later when the
damages are assessed. Conversely, a defendant who wishes to confine his amends to less
than the full measure of the damage notified by the claimant should limit his offer
appropriately, lest the offer be accepted on a false basis.
(2) Although the Act does not lay down a set time-limit for accepting or
rejecting an offer, in Tesco Stores v. Guardian News & Media Ltd. (2009) EMLR 90,
[41-51], Eady J ruled that the decision must be made within a reasonable period, having
regard to all the circumstances of the case. He gave an extreme example of what was
impermissible: “if the cross-examination of the journalists does not go too well, the
suggestion seems to be that the claimant could, at that point, simply pull the plug on the
statutory defence by accepting the offer and be subject only to adverse costs orders.” The
Judge said the claimant would not be allowed “to thumb its metaphorical nose at the
legislative intention.” (Although the report does not say so, the Judge gave the claimants six
weeks).
(3) In exceptional cases a claimant has been able to obtain disclosure before
deciding whether to accept an offer. In Rigg v. Associated Newspapers Ltd. (2004)
EMLR 52, the claimant disputed the defendant newspaper’s account of what she had said
in an interview. In the correspondence before action the defendant asserted that the article
was supported by the notes made by their journalist during the interview, and their Defence
set out at length and in detail the words which Dame Diana was alleged to have spoken.
Gray J held that in such circumstances it was appropriate to order disclosure of the notes,
but warned that he was not giving his approval “on a routine or wide-scale basis to
applications for disclosure by claimants faced with a decision whether or not to accept an
offer of amends.” In the Tesco case, ibid, [43], Eady J warned that the burden was fairly
and squarely on a claimant wishing to prove malice to discharge that burden: “it is not
legitimate to hold up the decision whether to accept or reject the offer to call for
information, or disclosure of documents, relating to the defendants’ state of knowledge or
the quality of its journalism.”
(4) Where an offer of amends is accepted, it will only be in exceptional
circumstances that the court will allow a party to resile from the offer and undo the
agreement. In Warren v. Random House Group Ltd. (2009) 2 WLR 314, the
defendant unsuccessfully tried to amend to plead justification on the basis of information it
acquired after acceptance of its offer. It was agreed that the court retained a residual
discretion; in the view of Sir Anthony Clarke MR, [17], “whether or not a contract properly
so called comes into operation, the court would permit either party to resile from it on one
of the traditional contractual grounds”.
In Warren there was no suggestion that the
defendant had been lured into making the offer by a misrepresentation by the Claimant on
which it had relied to its disadvantage, and the argument that refusing permission to plead
justification infringed the defendants’ rights under Art. 6 & 8 ECHR made no headway. The
Court held that the offer had been made voluntarily, with the benefit of legal advice, and
that the defendant had not made all the reasonable inquiries it might have done before
making the offer.
B8. There is no cap on the damages the court may award under the procedure, and
where the amount is not agreed, the approach to quantification involves the same principles
of causation, aggravation and mitigation as an ordinary action: see s.3(5), 1996 Act, and
s.23(1)( c), 2009 Act. In theory, there is no reason why special or exemplary damages
should not be recovered, though there does not seem to be any reported case where that
has happened. Indeed, a case satisfying the conditions for an award of exemplary damages
would almost certainly be one where the defence could be defeated by proof of bad faith in
any event.
B9. The approach adopted by the English courts to fixing damages is first, to assess
the likely figure which would have been awarded after trial (assuming no aggravation or
mitigation of damages), and then to decide by what amount that figure should be
discounted by reason of such mitigating factors as exist. Obviously the very fact of making
an offer goes to mitigation, and where following the acceptance of an offer of amends an
agreed apology is published, there is (in Eady J’s words) “bound to be substantial
mitigation”: see Nail v. News Group Newspapers Ltd. (2005) 1 AER 1040, [41].
B10. Although the Court rejects the notion that there is a standard percentage by
which damages will be discounted when the procedure is used, insisting that each case must
be assessed on its own facts, in Nail the discount was 50%. Gatley, Libel and Slander,
11th Edn. sets out at §A3.37-3.42 recent awards (including the discounts applied).
Examples of cases which illustrate the general approach are the following:
(1) In Campbell-James v. Guardian Media Group Plc (2005) EMLR 24,
an army officer was accused of partial responsibility for the notorious abuses which occurred
at the Abu Ghraib prison in Iraq. The newspaper took three months before publishing a
correction and apology, and Eady J considered its attitude “remarkably casual”. He took
£90,000 as the starting point for damages, and discounted it by only 35%, allowing for the
limited mitigation. The award was therefore £58,500.
(2) In Turner v. News Group Newspapers Ltd. (2006) 1 WLR 3469,
the claimant was accused of introducing his wife to sex parties and of breaking up his
marriage by pressurising her to have sex with other men. This was a case where the
defendants relied in mitigation on matters of directly relevant background context, under the
principle established in Burstein v. Times Newspapers Ltd. (2001) 1 WLR 579. This
led to an award of £9,000 (upheld by the Court of Appeal), after applying a limited discount
of 40%.
(3) Veliu v. Mazrekaj (2007) 1 WLR 495 shows that the court will
differentiate between a defendant who makes an offer of amends and one who does not.
The allegation in an Albanian-language newspaper was that the claimant had been
implicated in the London terrorist bombings. Five months passed before an apology was
published. Describing the libel as of exceptional gravity, Eady J set the starting point at
£180,000, and discounted it by a third for the defendant who had offered amends, making a
figure of £120,000. In contrast, his co-defendant was ordered to pay £175,000.
C: THE DEFENCE OF RESPONSIBLE PUBLICATION ON A MATTER OF PUBLIC
INTEREST:
C1. No one could possibly be unaware of the scale of the complaints from the
English media that judges have both developed an extra-Parliamentary law of privacy, and
stacked the law of libel against freedom of expression. Lord Lester QC, who had recently
introduced his own reform bill in the House of Lords, greeted the publication of the Ministry
of Justice’s Bill with an article in The Times headlined “These disgraceful libel laws must be
torn up”. Whilst it is undoubtedly true that the first decade of the new century has seen a
significant shift in English law between the right to freedom of expression and the right to
respect for private life, this is very much in contrast to the position in defamation.. As Lord
Hoffmann pointed out in Jameel v. Wall Street Journal Europe Sprl (2007) 1 AC 359,
[38]:
“Until very recently, the law of defamation was weighted in favour of
claimants and the law of privacy weighted against them. True but trivial intrusions into
private life were safe. Reports of investigations by the newspaper into matters of public
concern which could be construed as reflecting badly on public figures domestic or foreign
were risky. The House attempted to redress the balance in favour of privacy in Campbell v.
MGN Ltd. (2004) 2 AC 457 and in favour of greater freedom for the press to publish
stories of genuine public interest in Reynolds v. Times Newspapers Ltd (2001) 2 AC
127.”
C2. Although it is common to speak of “Reynolds privilege”, it would seem that,
properly analysed, it is not really a privilege at all in the traditional, common law sense of
reciprocal duty and interest. It is clear from the speeches of Lord Hoffmann [46] and Lady
Hale [146] in Jameel that it is a different creature altogether. This is more than
jurisprudential semanticism: in Reynolds the House rejected the attempt of Lord Lester
acting for the Sunday Times to create a privilege for publication of defamatory statements of
a political character, subject only to proof of malice, the burden of which would be on the
claimant: see Lord Nicholls at ibid, p202. The House considered that such a scheme would
provide inadequate protection for the reputation of defamed individuals: see Lord
Hoffmann’s summary of the position in Jameel at [44]. Instead, we have a defence in
relation to matters published in the public interest, which turns on the responsibility of the
publisher. But it is not as sometimes described “a defence of responsible journalism” – it is
open to any publisher of such material in any medium. That is clear from what Lord
Hoffmann said in Jameel at [54]: “The question in each case is whether the defendant
behaved fairly and responsibly in gathering and publishing the information” [emphasis
added].
C3. In contrast to the emphasis placed on responsibility in English law, s.26, 2009
Act talks of “fair and reasonable” publication. The emphasis on reasonableness takes the
Irish law closer to the Australian model: see Theophanous v. Herald & Weekly Times
(1994) 182 CLR 104. How much difference this makes in practice is debateable: in
Jameel the House overruled the Court of Appeal and gave judgment for the Wall Street
Journal, holding that failure to obtain the claimant’s response to the allegation that his bank
account was being monitored by the Saudi Central Bank to prevent any channelling of funds
to terrorist organisations was an insufficient ground on which to deny the defence. The
House attached importance to the considerable public importance of the subject-matter of
the article, and to the fact that the inclusion of the names of those allegedly being
monitored was a necessary ingredient. They also emphasised that the article had been
written by an experienced and specialist reporter and that senior staff had sought to verify
its contents.
C4. The House did not so much re-state the Reynolds doctrine in Jameel as
demonstrate its liberality by the manner in which they applied it to the facts. Thus they were
unimpressed by the jury’s finding that, whilst it had been proved that the journalist had
received the information he claimed from a Saudi businessman, it had not been proved that
it had then been confirmed by four further sources in the banking and diplomatic
community.
C5. The Working Group set up by the last Lord Chancellor to examine the extent to
which our libel law chilled freedom of expression had 17 members – only three of whom
could be said to be claimant-orientated, and probably only two described as neutral as
between claimants and defendants. Nonetheless it did not recommend pure codification of
Reynolds [p26]: it recommended further work by the Ministry of Justice on whether it is
possible to reconcile the competing rights to reputation and freedom of expression in a way
which clarified Reynolds in the light of (Mohammed) Jameel v. Wall Street Journal
(2007) 1 AC 359.
C6. The Working Group was sufficiently realistic to acknowledge that the quest for
certainty of application was illusory: the need for flexibility in reconciling competing public
interests would always make that impossible [p33]. Indeed, because these cases are factspecific, this is the task of the courts balancing the competing Convention interests
proportionately on a cass-by-case basis, and applying a degree of margin of appreciation for
legitimate editiorial judgment: see Fressoz v. France (2001) 31 EHRR 28.
The Flood case: the duty to verify:
C7. The decision of the Court of Appeal in Flood v. Times Newspapers Ltd.
[2010] EWCA Civ 804 was significant because it appears to have been the first time that
a successful Reynolds defence at first instance has been overturned by the Court of
Appeal. Naturally the decision caused the media to express fears for the future of
investigative journalism. The case is now going to the Supreme Court in October (on terms
that no order for costs is sought against the claimant in the event that the defendants
succeed).
C8. Mr Flood was a Metropolitan police officer, who had been the subject of
allegations to the force by an unidentified source that he had taken bribes. The Times
published a story that the allegations had been made and the Met was investigating them.
Moore-Bick LJ [98] regarded the article as not being “a classic piece of investigative
journalism, in which the newspaper reports facts uncovered by the journalist”. “In this
case”, he said [100], “the allegations were the whole story”. The journalists had discovered
the fact of the investigation prompted by the informant, and they had succeeded in finding
out from the informant what he/she had told the Met. But they had no basis for the
inculpatory information in the article which went beyond the fact of the investigation.
Indeed the trial judge had held that there was no evidence known to the journalists that Mr
Flood had behaved corruptly. The inclusion of the inculpatory evidence could only be
defended under Reynolds, if the journalists had verified it, which they had not done. The
contrast with Jameel was that in the latter case the article had been defensible because it
was a report of the bare fact of the monitoring by the Saudi Central Bank. Accordingly the
newspaper had not needed to verify whether there were good grounds for the monitoring.
C9. The Supreme Court will have to consider whether the distinction of the facts in
the Flood case from those in Jameel really holds water. After all, the story in Jameel
naming the individuals who were being monitored would more than likely have left readers
with the impression that there was a sound basis for doing so – some suspicion of
involvement in funding terrorism. But Lord Neuberger MR was left in no doubt that the
Times article could not be defended as reportage: [63]:
“.... it seems to me that it would be tipping the scales too far in favour of the
media to hold that not only the name of the claimant, but the details of the allegations
against him, can normally be published as part of a story free of any right in the claimant to
sue for defamation just because the general subject-matter of the story is in the public
interest.”
C10. Of particular concern to the media about the Flood decision was the fact that
the Court of Appeal agreed with the Judge, [21], that Lord Nicholls’ statement in
Reynolds, 205, much relied upon by newspapers that “any lingering doubts should be
resolved in favour of publication” could not stand after the Human Rights Act. Lord
Neuberger said that it was clear from cases such as In re S (a child) (2005) 1 AC 593
that Articles 8 and 10 have equal weight.
Practical difficulties with Reynolds:
C11. Whether one compares s.26, 2009 Act with Lord Nicholls’ non-exclusive list in
Reynolds of ten relevant factors bearing on the issue of responsibility or with clause 2 of
the draft Bill, it is clear that s.26 is considerably more complex. It would be tedious to
compare the three, but such complexity limits the availability of the defence. No wonder it
has been described by Eoin O’Dell as “unworkably narrow”: Informm Blog: 20 March
2011.
C12. There are a number of features of a Reynolds defence, which can turn out to
be significant in practice:
(1) The inter-relationship between Reynolds and the defence of honest
opinion has not been clearly worked out. Clause 2(2)(h) of the draft Bill refers to the tone of
the statement as being relevant, “including whether it draws appropriate distinctions
between suspicions, opinions, allegations and proven facts”. The reference to “opinions” is
curious, because it might be thought that Reynolds was intended as a defence for the
responsible publication of untrue facts. Opinions, by their very nature, do not have the
quality of being either true or untrue, and it hard to see a defendant preferring to shoulder
the burden of demonstrating responsibility in publication, as opposed to honesty of belief.
(2) The need to preserve journalistic confidence presents difficulties for
defendants in running the defence. By and large s.10 Contempt of Court Act 1981
preserves sources from identification, and no court has yet decided that disclosure is
necessary in the interests of justice in a Reynolds case: see Lord Cooke in Reynolds, ibid,
p219F-G. The problem comes with the need to persuade the court of the credibility of the
source; there is a temptation to provide as much detail as possible in order to bolster his or
her authority. But with that detail comes the risk of identification. In the course of the trial
in Loutchansky v. Times Newspapers (2002) QB 783 the identity of a number of the
newspaper’s sources was apparent by the end of the trial.
(3) Both Loutchansky and Flood illustrate the importance for the media of
qualifying a disputed article which remains on the defendant’s website. In neither case did
The Times do so, and since the publication was continuing and responsibility is judged at
the time of publication, the failure deprived the paper of a Reynolds defence. The
defendant’s complaint in the Loutchansky case that this ruling was a breach of Art.10 was
rejected by the ECHR as inadmissible: Times Newspapers Ltd v. UK: 11 October 2005.
(4) Although the so-called “single-meaning rule” applies to the meaning of
the words for the purpose of considering whether they are defamatory, it is nevertheless
open to a defendant raising a Reynolds defence to contend that he thought they bore
some different, lesser meaning which justified publication. This is clear from Lord Nicholls’
opinion in Bonnick v. Morris (2003) 1 AC 300, [24]: “a journalist should not be
penalised for making a wrong decision on a question of meaning on which different people
might reasonably take different views.”
(5) Where the defendant raises both a Reynolds defence and one of
justification, it is almost invariable practice in the interests of good case management for the
court to order the trial of the Reynolds defence first: see GKR Karate v. Yorkshire Post
Newspapers (2000) 1 WLR 2571. If the defendant wins on Reynolds, that is the end of
the matter, whereas if the claimant succeeds on justification, it is not, since Reynolds
remains an issue. This is a most unsatisfactory position for claimants, because they never
obtain a vindicating verdict on the truth or falsity of the words. Declarations of falsity are as
yet unknown to the English court, save in the exceptional case of the statutory procedure
under s.9(1)(a), 1996 Act. The recent report of the Commons Culture, Media and
Sport Committee recommended that a claimant debarred from recovering damages in
relation to a statute-barred internet publication should be entitled to a court order to correct
a defamatory statement: see para.230. If such a remedy is desirable, that approach might
be thought to apply equally to a statement not sought to be justified, and yet defended
under Reynolds.
(6) In Jameel v. Wall Street Journal Europe (2005) QB 904, [70], the
Court of Appeal expressed strong doubts about the desirability of jury trial in a Reynolds
case. In a case where there currently remains a statutory right to jury trial under s.69(1)
Senior Courts Act 1981, it is for the judge to rule on the validity of the defence (or, as
once would have been said, on the issue of privilege, but before he or she does so, it may
be necessary to have the jury answer questions as to the underlying facts on which the
ruling will be based. This is a cumbersome business, much disliked by the judiciary. It is also
not easy for juries, since instead of returning a general verdict, they are faced with an
examination paper of specific factual questions to resolve. In Loutchansky there were over
a dozen.
D: INTERNET PUBLICATION AND LIBEL TOURISM:
A single publication rule:
D1. Clause 6 of the draft Bill designed to create a single publication rule has been
generally welcomed. In an attempt to despatch finally the Duke of Brunswick’s case, it is
proposed in clause 6(3) for the purpose of the Limitation Act “any cause of action against
the person for defamation in respect of the subsequent publication is to be treated as
having accrued on the date of the first publication”. In s.11(2), 2009 Act the simple
solution has been adopted of allowing the court to sanction “more than one defamation
action in respect of a multiple publication where it considers that the interests of justice so
require”. The draft Bill in clause 6(6)(a) preserves the court’s discretion to disapply the timelimit under s.32A Limitation Act 1980.
D2. The English Bill also differs in adopting the approach of specifically excluding
from the operation of the section a subsequent publication “if the manner of that publication
is materially different from the manner of the first publication”. This is not designed simply
for Internet publication, but it will apply particularly in cases where there may first have
been limited Internet publication on a little-known website, followed later by much wider
(and more damaging) electronic or non-electronic publication. In deciding whether the
manner of publication is materially different, the court is naturally is directed to consider,
inter alia, the level of prominence a statement is given and the extent of the subsequent
publication.
The liability of service providers and operators of search engines:
D3. In Metropolitan International Schools Ltd. v. Google Inc. (2009) EMLR
522 Eady J had to consider whether the Californian company which operates the Google
search engine was liable at common law for the publication of defamatory words contained
in a search result (ie. not merely on a link to which the user is directed by the search). He
held that it was not and that it was merely a facilitator, given that the function of the search
engine was confined to making an automatic search in response to search terms entered by
Internet users, which Google played no part in formulating, and given that it had no
knowing involvement in the publication of the offending words.
D4. The Court considered the operation by Google of their “take down” policy, where
they are informed of exact web addresses or URLs. The evidence showed that there was no
way that Google could block access to specific words without that information. At [58] Eady
J commented that “while efforts are being made to achieve a “take down” in relation to a
particular URL, it is hardly possible to fix [Google Inc] with liability on the basis of
authorisation, approval or acquiescence”. Hence it would seem that there might well be
liability if a request for a take-down was refused outright, or not implemented within a
reasonable period after being notified of the URL.
Libel tourism:
D5. Clause 7 of the draft Bill is aimed at so-called “libel tourism”, but it tackles the
issue by reference to the domicile of the defendant, not that of the assumed tourist – the
claimant. It would therefore catch an English claimant, not merely one from overseas. The
drafting is also forced to acknowledge the impact of the Brussels and Lugano Conventions
by limiting the operation of the clause to defendants not domiciled in the UK, a Member
State or states which are parties to the Lugano Convention. Clause 7(2) provides that the
Court shall not have jurisdiction to determine an action against such a defendant, unless it is
satisfied that “of all the places in which the statement complained of has been published,
England and Wales is clearly the most appropriate place in which to bring an action in
respect of the statement.”
D6. It is natural for American publishers also operating overseas to resent the impact
of the libel laws of other nations not imbued with the spirit of the First Amendment. Lord
Hoffmann pointed out in his Ebsworth Memorial Lecture: 2 February 2010 that the
American approach is unique, and not to be found in the common law world or in other
European legal systems. It is fundamentally incompatible with the Strasbourg jurisprudence
which abhors giving pre-eminence to any one Convention right over another. In England the
Court of Appeal in Don King v. Lennox Lewis (2005) EMLR 45 has applied the principle
laid down by the High Court of Australia that:
“If a publisher publishes in a multiplicity of jurisdictions, it should understand,
and must accept that it runs the risk of liability in those jurisdictions in which the publication
is not lawful and inflicts damage”.
D7. On the assumption that by damage is meant “substantial” damage, it might be
thought that this principle was unobjectionable. Non-substantial cases can be disposed of
under the Jameel doctrine. In seeking to persuade the court to do this, defendants will be
assisted by the ruling in Al Amoudi v. Brisard (2006) 3 AER 294 that with Internet
publications, there is no presumption that the words were actually read, the burden being
on the claimant in this respect. The 2009 Act is silent on this issue, but it should not be
assumed that there will be a rush of tourists to Dublin if the Bill goes through in its present
form. Despite the impression created in the media, there have been precious few libel
tourists in London in recent years, and the myth of Dr Rachel Ehrenfeld (the defendant in
Mahfouz v. Ehrenfeld (2005) EWHC 1156 QB) as the victim of libel tourism was
punctured by Lord Hoffmann in his Ebsworth Lecture. Having claimed in the preface to
the second edition of her book that she intended to provide the UK court with evidence by
way of justification. She neither pleaded that nor a Reynolds defence. As Lord Hoffman
acerbically comments: “Perhaps she had some doubts about whether she would satisfy the
English test of responsible publication”. Nor did she even enter an appearance for the
purpose of challenging service out of the jurisdiction or arguing that (given the limited
circulation of the book in England) there was not a substantial tort.
E: MODE OF TRIAL AND THE ROLE OF JURIES:
E1. Clause 8(1) of the draft Bill proposes the removal of libel and slander from those
causes of action where there is a right to trial by jury under s.69(1) Senior Courts Act,
save “where the court is of the opinion that the trial requires any prolonged examination of
documents or accounts or any scientific or local investigation which cannot conveniently be
made with a jury”. This means that, as the heading to the clause recites, defamation trials
will be without a jury unless the court orders otherwise. A fascinating dissertation on the
approach to jury trial over the years is to be found in the very recent judgment of
Tugendhat J in Cook v. Telegraph Media Group Ltd [2011] EWHC 763 (QB): 29
March 2011, in which he also addresses the substantial case management benefits that
may accrue from trial by Judge alone.
E2. Today the effect of s.69(3) Senior Courts Act is that where the Court has a
discretion it is very rarely exercised in favour of trial by jury, for reasons which can be found
in the judgment of May LJ in Armstrong v. Times Newspapers (2006) 1 WLR 2462,
[15]. In Cook, [90 et seq] the Judge gave some indication of the circumstances in which
trial with a jury will generally be ordered as a matter of discretion, in particular, where the
state or a public authority is a defendant. That was the case in a second recent decision of
Tugendhat J, Lewis v. Metropolitan Police [2011] EWHC 781, where a solicitor is suing
the Met over allegations arising out of the furore over the number of actual cases of hacking
at The News of the World and the thoroughness of the initial police investigation.
E3. In Lewis the police applied to have the action struck out and for a ruling from
the Judge on the actual meaning of the words in dispute. Because the Judge was unable to
say that this was a case which would never be tried by a jury, he declined to make the
ruling sought and confined himself to deciding whether the claimant’s pleaded meaning was
one which the words were capable of bearing. It is clear that he did so with some regret,
because he felt his hands were tied. In many cases there is enormous benefit to the parties
in having the issue of meaning resolved at the earliest possible stage. There are many cases
where, for example, the defendant asserts justification of a meaning of reasonable cause for
suspicion, but the claimant contends that the words conveyed the imputation of actual guilt.
Cases will often settle very quickly, once it is decided what is the actual meaning of the
words, but that cannot be done whilst there is any chance of the trial being before a jury.
F: FUTURE DEVELOPMENTS: THE CONTINUING INFLUENCE OF STRASBOURG’S
CASE LAW:
The right to reputation as part of Art.8 ECHR:
F1. The law of defamation is par excellence a common law tort. It has been
developed by the judges over two centuries to try and strike the balance between the right
to reputation and the right to free expression. Today, of course, that balance has to be
struck by reference to Articles 8 and 10 of the European Convention, neither of which, as we
have been repeatedly reminded from London and Strasbourg, has presumptive preeminence. That is why the invocation outside the United States of their First Amendment
jurisprudence cuts no ice. The Strasbourg Court has repeatedly emphasised the media’s
duties and responsibilities. Hence in the words of the report of the former Lord
Chancellor’s Working Party on Libel Reform: fn.45, p28-9:
“to free the media from liability for defamation purely on the basis of the
subject-matter of the publication being of legitimate public concern, without imposing any
standards of responsible journalism, would under-protect reputation and could well
therefore violate Article 8.”
F2. Recent Strasbourg case-law, endorsed by the Supreme Court in Guardian News
& Media Ltd: re Ahmed v. HM Treasury (2010) All ER D 178, has established that a
person’s reputation is an aspect of their rights under Art.8. Thus there was once a time
when clients were advised that if a statement about them was true, their remedy was in
confidentiality (assuming the Art.8 threshold was crossed), and if it was false that their
remedy was in libel (assuming it was defamatory). The distinction is no longer so clear-cut
in the light of ECHR cases from 2005 onwards indicating that the right to respect for private
life embraces the right to reputation. This is necessary to protect human dignity, which is
damaged by the publication of false personal information.
(1) In Radio France v. France (2005) 40 EHRR 706 the ECHR ruled that
there had been no violation of Article 10 in relation to the conviction of broadcasters for
false allegations that the Deputy Mayor of Paris had supervised the deportation of Jews in
the Second World War. The allegations were obviously highly defamatory, and the parties
before the Court did not disagree that the interference with the Applicants’ Article 10 rights
was in pursuit of the legitimate aim in Art.10(2) of “protecting the reputation and rights of
others”. At §31 p729 the Court noted that:
“The right to reputation does indeed figure among the rights
safeguarded by Art.8 of the Convention, as an element of the right to respect for private
life.”
(2) In Cumpana & Mazare v. Romania (2005) 41 EHRR 200 the Court
was concerned with the criminal conviction for libel of journalists who had made false
allegations of bribery in the award of government contracts. It was nothing to the point that
the story would unquestionably have been of significant public interest, had it been true.
The Court held that the restriction on the Applicants’ freedom of expression met a pressing
social need, but that the penalty imposed had been disproportionate. At §91 p220 the
Court stated that its task was:
“to ascertain whether the domestic authorities struck a fair balance
between, on the one hand, the protection of freedom of expression as enshrined in Art.10,
and on the other hand, the protection of the reputation of those against whom allegations
have been made, a right which, as an aspect of private life, is protected by Art.8 of the
Convention. That provision may require the adoption of positive measures designed to
secure effective respect for private life even in the sphere of the relations of individuals
between themselves.”
F3. Consistently with the Strasbourg case-law, there is no principled reason why a
claimant should not be afforded protection from a false statement whose subject-matter
trespasses into the area where there is a reasonable expectation of privacy. A false
statement can be just as intrusive, if not more so, than a true one. Sometimes, too, the
falsity of particular details aggravates the fact that private information is being disclosed at
all. In Campbell v. MGN, ibid, p485D-E §102, Lord Hope observed that such
inaccuracies as were published did not detract from the private nature of what was
published:
“... there is a vital difference between inaccuracies that deprive the
information of its intrusive quality and inaccuracies that do not.....”.
F4. The decision of Eady J in Beckham v. Gibson: 29th April 2005 shows how the
Court will now protect information both true and false, provided it is private in nature. The
Court will be at pains to spare the Claimant the embarrassment that the intrusion on privacy
and the resultant need to litigate threatens:
“It would defeat the purposes of the injunction, if [the Claimants] are
compelled to spell out which revelations are true, false, or a grain of truth and are
distorted.”
F5. Sometimes when the defendant is a public authority, which is bound by s.6(1)
Human Rights Act 1998 not to act in a way which is incompatible with a Convention
right, a claim for infringement of Art.8 may succeed, where a claim in libel has failed. This
in W v. Westminster City Council (2005) EWHC 102 (QB), a claim was brought in libel
in relation to allegations of paedophilia and sexual abuse of a minor. This was dismissed by
Tugendhat J on the ground of qualified privilege: (2004) EWHC 2866 (QB), but a
subsequent claim for infringement of Article 8 succeeded based on the acknowledgment that
the allegations were untrue, and the Judge granted declaratory relief under s.8 HRA.
F6. Whilst false commercial information will not be protected for obvious reasons
(see Sedley LJ’s judgment in Interbrew SA v. Financial Times Ltd. (2002) EMLR 446,
[27] p462), today there would be a remedy for the lacuna in the law revealed by the facts
of Charleston v. News Group Newspapers Ltd. (1995) 2 AC 65. In that case a claim
in libel was brought unsuccessfully in respect of photographs with the claimants’ faces
superimposed on near-naked models in pornographic poses. The accompanying text made it
clear that the photographs had been manipulated. Lord Bridge at p69E expressed
“considerable sympathy with [the] point of view” that “the law ought to give some redress
to the plaintiffs against the publication of such degrading faked photographs irrespective of
what the accompanying text may have said.” Charles Gray QC (as he then was) for the
defendants in argument at p68B-C pointed the way to the remedy which would exist today:
“If any offence is felt by the plaintiffs it has to be cured by an aspect of the law of privacy
which is available in other jurisdictions.”
F7. Mr Gray doubtless had in mind that publicity placing someone in a false light is
one of the four categories of privacy torts recognised in American law: see the seminal
article by Dean Prosser: “Privacy”, (1960) 48 Cal LR 383, 389, cited by Tugendhat &
Christie, 2nd Edn, fn.8, p92. Prosser linked privacy in information to reputation: “it is in
reality an extension of defamation, into the field of publications which do not fall within the
narrow limits of the old torts, with the elimination of the defense of truth”. In line with the
American approach, the definition of privacy contained in the Recommendation on Mass
Communication Media and Human Rights (adopted by the Council of Europe on 23
January 1970) included “private, family and home life, physical and moral integrity, honour
and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and
embarrassing facts”.
F8. The decision of the Court of Appeal in a privacy case, McKennitt v. Ash
(2008) QB 73, left no doubt that English law now provides protection against false private
statements. At [78-79], the Court of Appeal rejected the argument that in relation to the
statements in the defendant’s book alleged to be false, the claimant should have sued in
defamation. The Court distinguished the case from one where even though the nub of the
complaint was the falsity of the allegations, a claim was brought in confidence, in order to
circumvent the rule in Bonnard v. Perryman (1891) 2 Ch 269 and thus obtain an
interlocutory injunction: [79].
(1) Without relying on the European case-law, Buxton LJ stated: [80]
“... provided the matter complained of is by its nature such as to
attract the law of breach of confidence, then the defendant cannot deprive the claimant of
his article 8 protection simply by demonstrating that the matter is untrue.”
(2) Longmore LJ warned judges against being sidetracked into an irrelevant
inquiry into the truth of the allegation (save in cases like Interbrew which, he said, were
entirely different): [86]
“The question in a case of misuse of private information is whether
the information is private, not whether it is true or false. The truth or falsity of the
information is an irrelevant inquiry in deciding whether the information is entitled to be
protected........”.
Interlocutory Injunctions:
F9: Treating the right to reputation as part of Art. 8 rights has also put a questionmark over the long-established rule that an interlocutory injunction in libel will be refused
out of hand in cases where the defendant indicates an intention to raise a defence of
justification: see Bonnard v. Perryman (1891) 2 Ch 269. The issue had already been
raised by reference to s.12(3) Human Rights Act 1998, which provides that no
interlocutory relief affecting the Convention right to freedom of expression should be
granted “unless the court is satisfied that the applicant is likely to establish that publication
should not be allowed.”
F10. In Greene v. Associated Newspapers (2005) QB 972 the Claimant
mounted the argument that the effect of s.12(3) (as interpreted by the House of Lords in
Cream Holdings v. Banerjee (2005) 1 AC 253) had been to qualify the apparently
absolute rule in Bonnard v. Perryman. The issue arose because the Judge at first instance
had held that if the test was whether the claimant had demonstrated that the alleged libel
was clearly untrue, she had failed. But, on the other hand, it was a different matter if the
test was derived from Cream Holdings: that is to say, was it more likely than not that she
would succeed at trial ?
F11. The decision of the Court of Appeal upholding the primacy of Bonnard v.
Perryman was all the more striking for the fact that the claimant had introduced strong
computer evidence that the e-mails upon which the defendants sought to rely to
demonstrate an association between the claimant and a convicted con-man were forgeries.
Giving the judgment of the Court, Brooke LJ stated that they had no hesitation in holding
that there was nothing in s.12(3) that could properly be interpreted as weakening in any
way the force of the rule in Bonnard v. Perryman: [66]. The rule that there should be no
prior restraint on publication in defamation cases, unless it is clear that no defence will
succeed at trial, was said to be founded on a number of considerations: [57]:
(1) The importance that the court attaches to freedom of speech.
(2) The necessity of a judge not usurping the constitutional function of the
jury (as fact-finders), unless he is satisfied that there is no case to go to the jury.
(3) The fact that until there has been disclosure of documents and crossexamination at trial, a court cannot safely proceed on the basis that what the defendants
wish to say is not true. If the defence failed at trial, the defendants would have to pay
damages, which might include aggravated or exemplary damages.
F12. These considerations no longer carry quite their former weight in the light of
the Strasbourg case-law and the diminishing number of trials by jury. But at the time the
decision in Greene came as no great surprise. The false allegations against the claimant
could not have been said to intrude on her private life. It would
have been a more
interesting debate, if the allegations had related to sexual conduct, for example. Then it
could have been argued that Art. 8 was brought into play just as much (if not more so)
than if the allegations were true. This was the argument which some years later was to
succeed in McKennitt.
Future developments: disposing summarily of trivial claims:
F13. Until recently the presumption of damage following the publication of a
defamatory statement had been regarded as an integral part of English law. But the
Strasbourg doctrine of proportionality has caused that to be questioned. Thus clause 1 of
the new Defamation Bill, seen by the Ministry of Justice as codification rather than reform,
reads as follows:
“A statement is not defamatory unless its publication has caused or is likely to
cause substantial harm to the reputation of the claimant.”
F14. The cases on which the Ministry states that it is building are a recent judgment
of Tugendhat J in Thornton v. Telegraph Media Group (2010) EMLR 609, and the
earlier and highly important decision of the Court of Appeal in Youssef Jameel v. Dow
Jones (2005) QB 946. In the most recent of the many attempts over the years to define
“defamatory”, Neill LJ said in Berkoff v. Burchill (1996) 4 AER 1008 that it meant words
which affect the attitude of other people towards the claimant in an adverse manner. But for
Tugendhat J in Thornton this was not enough in the post-Human Rights Act age: there had
to be a threshold of seriousness -- some tendency or likelihood of adverse consequences for
the claimant. Not surprisingly, what prompted this debate was the Youssef Jameel
decision, which effectively requires the claimant to show more than minimal actual damage
to his reputation, if his action is not to interfere disproportionately with the defendant’s
freedom of expression.
F15. Tugendhat J therefore re-wrote the Berkoff definition to read “substantially
affects in an adverse manner the attitude of other people towards the claimant, or has a
tendency to do so”: ibid, [95]. As it happens, this was a recommendation made by the
minority of the Faulks Committee in 1975. It is also consistent with the Jameel doctrine
which requires the establishment of a real and substantial tort. In Jameel publication on a
subscription website was limited to three associates of the claimant (including his solicitors)
and two individuals to whom he was unknown. Thus it was that Lord Phillips MR could
describe the action as not worth the candle or even the wick.
RECENT DEVELOPMENTS IN DEFAMATION LAW
Chairman, Press Council of Ireland
Paper by Daithí O’Ceallaigh
9th April 2011
Despite the nay-sayers, I think it is fair to say that the Irish media landscape has been
substantially changed by the passage of the 2009 Defamation Act. Part of this change has
involved the translation of much case law into statute law: I am not a lawyer, so I wouldn’t
presume to go further down that road, except to say that I am sure that this will be of value
both to the media and to legal practitioners.
My remarks today have to do more with exploring and explaining the role of the Press
Council and the Office of the Press Ombudsman in the new dispensation, and the effect –
insofar as it can be ascertained at this early stage – of the recognition of these bodies by
the Oireachtas under the terms of this Act.
In doing so I may be giving a passable imitation of a bad fairy at a christening, in that I am
speaking to an assembly of lawyers about an initiative, both by government and by the
press industry, which, if it works, has the potential to reduce the quantum for the legal
profession. However, in an evolving situation such as now exists, I believe that a mutual
exchange of information cannot but be of benefit to all participants.
It is hardly a state secret that the issue of press regulation has been one that has surfaced
intermittently in Irish public life, or that political or administrative initiatives on the
neighbouring island have from time to time given rise to emulation on this side of the Irish
Sea. Our defamation legislation itself is a case in point: the 1961 Irish legislation which has
now been reformed after half a century had a distinctly cousinly relationship with similar
legislation passed some time earlier in Britain.
We were not, however, in lock-step with Britain either in relation to subsequent changes in
British defamation law, or in relation to the industry initiatives which, in Britain, generated,
first, the Press Council there, and, later, the Press Complaints Commission.
The reasons for this are unclear. It was, however, not until some fifteen years ago that the
issue of press regulation surfaced in a substantive form in Ireland. This was in the
deliberations, and the Report, of the Commission on the Newspaper Industry, set up in 1995
under the former Chief Justice, Tom Finlay, in the wake of the collapse of the Irish Press
Group.
That body recommended the creation of the office of Press Ombudsman, deciding not to
recommend the establishment of a Press Council as such because of the relatively small size
of our population and of the newspaper market serving it. This was one of the many
recommendations of this Commission that were allowed to gather dust, until it was taken
down off the shelf a decade later and refurbished as part of on-going discussions between
the press industry and the government about matters of common interest. These matters
included not only the establishment of a regulatory mechanism for the press, but also
reform of the legislation on defamation.
The agreement eventually arrived at – and it was, essentially, a win-win solution – was that
at least some of the changes in defamation law sought by the industry would be
incorporated in a new Act and, in return, the industry would sponsor an independent Press
Council and Press Ombudsman along lines broadly acceptable to government.
To give credit where it’s due, the role of a distinguished member of the Bar, Michael
McDowell SC, who acted as one of the midwives during a sometimes painful birth process
that took more than four years, should be recognized here. Our thanks are due to him and
others in helping to bring this process to a successful conclusion.
The subsequent recognition of the Council and the ombudsman by a resolution passed by
both Houses of the Oireachtas last year was the final stage in this process.
This resolution gives our new regulatory structures a status which, although not unique, is
accorded to few other non-governmental bodies in Irish law. Although there are some
similarities with other organizations such as the Red Cross and An Taisce, it is a body that is
recognized under statute rather than a body created by statute.
The purpose of the recognition offered under the Act, and bestowed by the Oireachtas
under the same Act, is to give the decisions of the Press Council and the Press Ombudsman
on complaints about the print media protection against any action for defamation, not
simply because it is the Press Council, but because it has satisfied the important and very
specific pre-conditions for recognition that are laid down in the second schedule to the Act.
Its core characteristic is that it is an independent body, with its own rules and procedures,
and its own Code of Practice, governed by Articles of Association as a company limited by
guarantee without shareholders.
It is wholly funded by the press industry, but the membership of the Council has a nonpress-industry majority, and both the Council and the Press Ombudsman are, in their
operations, completely independent of the industry.
They are also completely independent of government, which does not have any role in the
appointment or ratification of the membership of the Council, or of the Press Ombudsman.
From the experience I have garnered since my appointment as Chairman of the Council, I
think I can safely say that the model we have adopted here in Ireland is unique. Only two
other European Press Councils have a Press Ombudsman as well as a Press Council, and, in
each of those, the role of the Press Ombudsman is less significant than it is in Ireland.
Where there is a unicameral system, appeals and procedures are generally more limited.
Some other Press Councils accept subventions from their governments – Germany and the
Netherlands are two that spring to mind – without having to compromise their independence
by accepting a government role in appointments. Not all Press Councils have a majority of
independent, non-industry members, as we do.
It may be thought that what we have created is, in the words of a former Taoiseach, an
Irish solution to an Irish problem. But against that I can offer the evidence that, especially in
the countries of central and eastern Europe, and sometimes further afield, our experience,
though limited, is frequently called on in countries which are anxious to create structures
that can resolve or at least ameliorate the inevitable tensions between government and
media in a way that can command public support and respect.
The way our system works is basically quite simple. We generally carry out conciliation and
reach conclusions on the basis of documentation alone, although there is also provision for
face-to-face mediation. We publish all decisions, whether by the Press Ombudsman or, on
appeal, by the Press Council, to the interested parties and on our website. We publish an
annual report, of which copies have been made available to you, giving details of our
activities.
We actively discourage the involvement of legal practitioners. This is not of course only
because of the patent desire of the newspaper industry for a low-cost (free to complainants)
mechanism for conflict resolution. We also find that experienced conciliation, such as our
staff can engage in, can help to resolve up to a quarter of all cases without the necessity for
a formal decision.
What we don’t know, as yet, is how and where our procedures, actions and decisions will fit
into the new defamation law landscape. Unlike regulatory structures in some other
countries, we cannot insist that complainants give an undertaking not to engage in legal
action based on the article or articles that are the cause of complaint. If formal legal
proceedings have been initiated before we get a complaint, the complaint will not be
processed until these legal proceedings are withdrawn or concluded. If formal legal
proceedings are initiated during the course of the consideration of a complaint,
consideration of that complaint will be suspended until those proceedings, also, have been
withdrawn or concluded.
I am aware of anecdotal evidence to suggest that some cases that have been dealt with by
our structures have persuaded those involved not to proceed with legal action. Although we
do not make any decision in relation to possible monetary compensation, I have learned
informally of one case of mistaken identity which, if it had gone to court, would have
resulted in – at the very least – a four-figure settlement, that was informally resolved on the
basis of a €150 restaurant voucher. I am also aware of one case in respect of which a
complainant took legal proceedings despite the apparently satisfactory conclusion of the
conciliation process, but I am unaware of the eventual outcome in that case – possibly a
small monetary settlement might have been involved.
However – and I know you will be relieved to hear this – there will always be cases in which
a complainant, and the courts, may be persuadable that monetary compensation is the most
appropriate remedy for the loss of a person’s good name. Although the Press Council and
the Press Ombudsman are not concerned with monetary compensation in any shape or
form, the new legislation does give them a significance- albeit an indirect one - in legal
proceedings in two important respects.
One of the most radical changes in the law under the new Act is the provision that a
published apology may be considered by the court, not as an admission of liability exposing
the publication to considerable legal hazards, but as something that can be taken into
account, at the discretion of the Court, in mitigating any financial sanction applicable.
Insofar as the conciliation service of the Office of the Press Ombudsman may, on occasion,
secure such publication, this provision of the Act obviously enhances the role of the new
institution.
Secondly, any publication that is a member publication of the Press Council may, in its
pleadings in a defamation case, provide evidence that it is a member publication in good
standing of the Council, that it observes the Code of Practice for Newspapers and
Magazines, and that it publishes decisions of the Press Ombudsman and/or the Press Council
upholding complaints about it in full accordance with the Code and the Council’s procedures.
This evidence may also be taken into consideration by a Court, at its discretion, when
deciding on any possible monetary sanction for defamation.
Interestingly, this can in certain circumstances act to disadvantage publications that are not
member publications of the Press Council. This is because, in order to avail of a similar right
to plead mitigation, such publications will have to provide satisfactory evidence to the Court
that they abide by a Code of Practice and complaints procedures that are at least equivalent
to those adopted by the Press Council. Those of you who are familiar with our Code and our
procedures will be aware that the bar, in this matter, is being set fairly high.
I am not sure that non-member publications are, as yet, aware of this. We are taking steps
to ensure that this information gap is filled as soon as possible, to the advantage of press
standards generally in Ireland.
What remains to be seen is what will happen if a complainant who has had a complaint
against a newspaper or magazine upheld in our system, and where the publication has had
to publish a decision of the Press Ombudsman and/or of the Council itself that it has been in
breach of the Code of Practice, takes this trophy to the Circuit Court or the High Court in
search of the monetary sanction which our system is, correctly in my view, not empowered
to impose.
This is, of course, a matter which is entirely within the competence of the courts, and, for
that very obvious reason, is not one on which I would venture to comment.
A final point about the internet. You will be aware that internet publication is, to all intents
and purposes, a totally unregulated medium. Although the Defamation Act, in its provisions
for press regulation by a recognized body, does not specifically include internet-based
publication, there is nothing in our Articles of Association that would preclude membership
of the Council by web-based publications, and in recent times one such publication has
already applied for, and has been accepted into, membership of the Council. This is a wholly
positive development with substantial potential implications for the future.
.
RECENT DEVELOPMENTS IN DEFAMATION LAW
THE PHONEY WAR?
Paper by Paul O’Higgins SC
9th April 2011
[In collaboration with David Whelan BL]
A.
1.
Introduction
A year and a half ago, November 2009, I addressed a conference on the Defamation
Act in Trinity College. On that occasion I stated:
“If I feel a sense of deja vous in addressing the Defamation Act 2009, I can
perhaps be forgiven since its period of gestation has spanned more than
three years and the issues given rise to by the Bill have been the subject of
much discussion during that period. It should be observed that the Act,
although signed into law, has not yet been commenced and while this will
happen very soon, the old regime applies to this day.”
2.
On that occasion I too, among others, looked at a number of the Acts’ provisions and
tried to anticipate the way in which they would pan out in practice. In many respects
guidance was to be had from the pre-existing approach of the Irish Courts. In others,
as is so frequently the case in this small jurisdiction, the approach and practice of the
English courts, which deal with so much greater a volume of contested libel cases,
gave significant indications as to the way in which our courts might approach issues of
interpretation and application of the statute.
3.
Since that time, as was predictable given the Act applied only to causes of action
arising after the 1st January 2010, little further enlightenment has been gained from
our courts in relation to the workings of the Act. A number of summary cases have
been dealt with by the Circuit Court, but no authoritative decision has been given on
the Acts’ provisions. This is not to say, however, that matters destined to have an
effect here may not be occurring elsewhere since cases in one way or another
affecting in some degree the law of defamation in Ireland occur on a regular basis
before the European Court of Human Rights. It is with the implications of two aspects
of this nexus that this paper is primarily concerned.
4.
Since, in my experience, almost all published material on the subject of defamation
takes the form of articles criticising its unfairness to Defendants, I have felt the need
in the past to articulate a contrary view. I would also add that during the period of
this “phoney war” when cases are developing into the form in which they will
eventually be heard, time does not stand still. In particular case law continues to
emanate from the two jurisdictions habitually most persuasive in Irish defamation and
other law; the United Kingdom and the Court of Human Rights in Strasbourg. While I
advance no statistics in the matter, the case law of the ECtHR in relation to Article 10
of the Convention consists predominantly of cases chosen to be brought before it by
the media. It has the money, the expertise and the organisation to do so. In
consequence its decisions, more often than not, adavance the cause of free speech at
the expense of the reputation of the individual.
5.
Because s.12 of the Human Right Act 1998 is held to give “direct effect” to Article 10
of the Convention, English law moves and is perhaps at times dragged in the direction
in which it is pushed by the ECtHR. Formulation of its judgments is in terms of the
Convention and the authorities posit approaches and solutions which, even though
there are significant differences in the interface between the Convention in Irish law
and that in English law propose challenges to the Irish analyst to maintain a degree of
independence of approach where appropriate from European and UK decisions to
reflect that difference.
6.
The combined effect of the enactment of the European Convention on Human Rights
Act 2003 and the Defamation Act 2009 has been to create a complex intersection in
the field of defamation and media law between statutory provisions, rules of common
law, constitutional protections and convention rights.
7.
While a range of cases both before and after the passing of the 2003 Act have
stressed the similarities between the protections afforded to the right of freedom of
expression under the Convention and the Constitution, it is suggested in this paper
that the differences which exist at a textual level are being amplified by recent
decisions of the European Court of Human Rights (“ECtHR” hereafter), and that the
European Court is developing Article 10 and Article 8 jurisprudence which sits
uncomfortably with the existing understanding of the equivalent Constitutional rights
in this jurisdiction and which may conflict with the new defences provided for under
the 2009 Act.
B.
Place of ECHR in Irish Defamation Law
Pre-2003 Act Position
8.
The European Convention on Human Rights Act 2003 was brought into force to
“enable further effect to be given, subject to the Constitution, to certain provisions of
the Convention”87. The European Convention on Human Rights itself had been ratified
by the State some 50 years earlier88 and although its precise status before the Irish
Courts was the subject of some debate, its influence on Irish jurisprudence
undoubtedly grew over the years prior to the passing of the 2003 Act.89
9.
In re Ó Laighléis90 the Supreme Court stated as follows:
“The Oireachtas has not determined that the Convention of Human Rights
and Fundamental Freedoms is to be part of the domestic law of the State,
and accordingly this Court cannot give effect to the Convention if it be
contrary to domestic law or purports to grant rights or impose obligations
additional to those of domestic law.”
10.
A similar approach to the Convention was adopted in Norris v Attorney General91, in
which the Supreme Court refused to accept that the Convention and the associated
case law of the ECtHR could have an impact on Irish law, holding that as the
Convention had not been incorporated into domestic law that the decision of the
ECtHR in Dudgeon v United Kingdom92 was not “in any way” relevant to the case at
issue.93
11.
However, in later cases, and in particular later cases relating to defamation and
freedom of expression, the Convention has had a significant impact on domestic law.
In Irish Times v Ireland94 O’Flaherty and Barrington JJ. rejected the narrower view of
freedom of expression which had been adopted in earlier cases95 in favour of an
interpretation of the right coloured by the terms of the Convention, with Barrington J
stating as follows at page 405:
12.
87
See the long title to the Act. The legislation came into force on December 31, 2003 by operation of S.I. No.
483 of 2003 in accordance with s.9(2) of the Act.
88
Ireland signed the Convention in 1950 and ratified it in February 1953
89
See European Convention on Human Rights Act: Operation, Impact and Analysis, de Londras & Kelly,
Thomson Reuters (Professional) Ireland Ltd, 2010, 2-05
90
[1960] I.R. 93 at 125
91
[1984] I.R. 36
92
(1981) 4 EHRR 149
93
[1984] I.R. 36, per O’Higgins C.J. at 67
94
[1998] I.R. 151
95
See Attorney General v Paperlink [1984] I.L.R.M. 373
“It... appears to me that the right of the citizens "to express freely their
convictions and opinions" guaranteed by Article 40 of the Constitution is a
right to communicate facts as well as a right to comment on them. It appears
to me also that when the European Convention on Human Rights states that
the right to freedom of expression is to include "freedom . . . to receive and
impart information" it is merely making explicit something which is already
implicit in Article 40.6.1 of our Constitution.”
13.
The Courts in both the Irish Times96 decision and the case of Murphy v IRTC97applied
proportionality tests which bear clear similarities to those favoured by the ECtHR. As
Geoghegan J. said in the High Court judgment in Murphy:
“[a]lthough the European Convention on Human Rights is not part of Irish
municipal law, regard can be had to its provisions when considering the
nature of a fundamental right and perhaps more particularly the reasonable
limitations which can be placed on the exercise of that right". 98
14.
In Mahon v Post Publications99, Fennelly J. stated as follows
Our courts, therefore, recognise that the right of freedom of expression is not
absolute. It may be necessary to reconcile it, in the event of conflict, with
other constitutional rights... As I hope to explain, this approach is, and has
been recognised by this court to be, closely comparable to that adopted by
the European Court of Human Rights when interpreting the Convention.”
15.
Despite this recognition of the close parallels between certain Constitutional and
Convention rights, the lack of a direct enforcement mechanism for Convention rights in
the Irish Court led to calls for the incorporation of the Convention into national law.100
16.
The manner in which this incorporation was to be effected proved a thorny issue, with
commentators describing the background to incorporation as follows:101
96
[1998] I.R. 151
[1999] 1 I.R. 29
98
This dictum was approved by Hamilton C.J., speaking for the majority of the court, in his judgment in de
Rossa v. Independent Newspapers [1999] 4 I.R. 432 at p. 450.
99
[2007] 3 I.R. 338 at 377
100
See for example, Constitution Review Group, May 1996 Report (Dublin: Stationary Office, Pn.2632)
101
See European Convention on Human Rights Act: Operation, Impact and Analysis, de Londras & Kelly,
Thomson Reuters (Professional) Ireland Ltd, 2010, 1-08
97
“There was a perception that the Constitution already adequately guaranteed
the protection of fundamental rights in Ireland, and that incorporation of the
Convention was unnecessary as it would do little or nothing to change this
situation. There was furthermore a fear described as “a psychological block”,
that the Convention would undermine or replace the rights regime under the
Constitution, or that incorporation of the Convention would be perceived as
an encroachment upon national sovereignty.”
17.
It has been also been noted by commentators that the decision to incorporate the
Convention into Irish law was ultimately informed more by realpolitik considerations
than notions of legal principle. The 1998 Good Friday Agreement required the
Government to “take steps to further strengthen the protection of human rights in its
jurisdiction” and “to ensure at least an equivalent level of protection of human rights
as will pertain in Northern Ireland”.102
18.
Prior to his appointment to the High Court, Mr. Justice Hogan, writing in the Bar
Review, stated that:
“Incorporation...is important, since, in the context of the impending crossborder bodies and the North-South Ministerial Council, it is important to have
a neutral yardstick of fundamental rights protection. Irrespective of the legal
virtues of the Constitution as compared with the ECHR, the latter provides a
politically neutral template for sensitive cross-border dealings which the
former could never hope to attain.”103
19.
Whatever the motivation for incorporation, the Government had a number of options
as to the manner in which the Convention place in Irish law might be bolstered. The
first and perhaps most important decision which it was required to make was whether
incorporation should take place at a constitutional or sub-constitutional level.
20.
At constitutional level, it was, theoretically at least, open to the Government to attempt
a wholesale replacement of the fundamental rights provisions of the Constitution with
those of the Convention, to combine both streams of authority by adding the
Convention rights to those enshrined in the Constitution or to seek the addition of an
Article in the Constitution invalidating any law inconsistent with the State’s Convention
obligations.
102
Chapter 6, “Rights, Safeguards and Equality of Opportunity”, Northern Ireland Peace Agreement, April 10,
1998, para. 9.
103
G. Hogan, “The Belfast Agreement and the Future Incorporation of the European Convention of Human
Rights in the Republic of Ireland” (1999) 4 (4) Bar Review 205 at 210.
21.
Ultimately, change at a constitutional level proved unpalatable for a range of political
reasons and the Government determined that further effect should be given to the
Convention at sub-constitutional level through the enactment of the 2003 legislation.
The 2003 Act
22.
The Act came into force on the 31st December 2003 and as of this date, Convention
rights, as provided for in the Act, were directly justiciable before the Irish Courts. The
Court in Foy v An T-Ard Chláraitheoir104 emphasised that the passing of the 2003 Act
did not “incorporate” the Convention into Irish law per se, but merely gave effect to
the rights which it protected in so far as those rights were provided for in the Act, with
McKechnie J. stating as follows:
“It will be recalled that as and from the 31st December, 2003, the rights
contained in the Convention became part of Irish law. It is a misleading
metaphor to say that the Convention was incorporated into domestic law. It
was not. The rights contained in the Convention are now part of Irish law.
They are so by reason of the Act of 2003. That is their source. Not the
Convention. So it is only correct to say, as understood in this way, that the
Convention forms part of our law.
The method employed by the Oireachtas was the interpretive method.
Section 2 of the 2003 Act, compels this Court to interpret and apply any and
every statutory provision and rule of law, insofar as is possible (see paras. 34
and 55 to 57 inclusive) in a manner compatible with Ireland's obligation under
the Human Rights Convention.”
23.
Section 2 of the Act provides as follows:
2.—(1) In interpreting and applying any statutory provision or rule of law, a
court shall, in so far as is possible, subject to the rules of law relating to such
interpretation and application, do so in a manner compatible with the State's
obligations under the Convention provisions.
(2) This section applies to any statutory provision or rule of law in force
immediately before the passing of this Act or any such provision coming into
force thereafter.
24.
104
The Act specifies that the phrase “rule of law” includes common law and defines
“statutory provision” as any provision of an Act of the Oireachtas or of any order,
regulation, rule, licence, bye-law or other like document made, issued or otherwise
created thereunder or any statute, order, regulation, rule, licence, bye-law or other
[2007] IEHC 470 at para.93
like document made, issued or otherwise created under a statute which continued in
force by virtue of Article 50 of the Constitution.
25.
It seems clear then that the Constitutional provisions cannot amount to rules of law for
the purposes of the Act. As the formal incorporation of Convention rights under the
2003 Act occurred at a sub-constitutional level, it was not open to the statutory
draughtsmen to dictate, even in the relatively permissive terms of section 2(1), the
manner in which the Courts should interpret the Constitution. Indeed, the
Constitutional Review Group doubted whether a general clause could exist at a
statutory level which could validly provide that other legislation must be compatible
with the Convention in order to be valid and enforceable105. If invalidating provisions
are of questionably efficacy horizontally at a statutory level, then a statute purporting
to directly influence the construction of the Constitution would clearly be
impermissible.
26.
Section 5 of the Act does empower the High Court or the Supreme Court to make a
declaration of incompatibility in relation to a particular rule of law or statute, but the
Act makes clear that such a declaration does not affect the “validity, continuing
operation or enforcement of the statutory provision or rule of law in respect of which it
is made” meaning that it falls somewhat short of the type of general clause queried by
the Constitutional Review Group.
27.
The supremacy of Constitutional rights over Convention rights was affirmed by the
Supreme Court in Mahon v Keena106, with Fennelly J. stating as follows from
paragraph 66 of the report:
“Although no issue arises in the present case of conflict between the
Convention provisions and the Constitution, it is important to recall that, in
the event of such a conflict, it is the Constitution which must prevail.”
28.
Accordingly, while the persuasive status of decisions of the ECtHR has been put on a
formal footing by the 2003 Act, and a positive obligation has been placed on the
Courts to interpret statutes and rules of law in a manner compatible with the
Convention, the ECHR remains inferior to the Constitution in the hierarchy of legal
rights. It is suggested, therefore, that it is quite clearly not only open to but obligatory
on the domestic Courts to depart from the position adopted by the ECtHR on a given
issue if its position is inconsistent with the scope of Constitutionally protected rights.
C.
Journalistic Privilege and Freedom of Expression
105
106
Constitution Review Group Report, May 1996, p.191.
[2010] 1 I.R. 336 at 355
29.
The case of Sanoma Uitgevers B.V. v The Netherlands107 concerned an illegal car race
held in the Netherlands in January 2002 which journalists from Autoweek, a magazine
published by the Applicant, were allowed to attend and take photographs. This
permission was conditional on the journalists involved agreeing not to disclose the
identities of those involved and to blur or otherwise hide identifying details in any
photographs published.
30.
The Netherlands police subsequently came to believe that one of the cars in the race
had been used in a series of violent ram raids and wanted to use the Applicant’s
photographs to identify the driver. When the Applicant refused to provide access to
these photographs, the police served Autoweek’s editor with a summons signed by the
Amsterdam public prosecutor to surrender all the photographs of the race. When the
editor refused, he was arrested, and the police and public prosecutors threatened to
shut down and search the Applicant’s premises.
31.
With the consent of the public prosecutors, the Applicant contacted the duty
investigating judge of the Amsterdam Regional Court for his opinion. The duty judge
considered that the needs of the criminal investigation outweighed the Applicant’s
journalistic privilege and, although he recognised that he had no legal competence to
do so, he stated that he would have been prepared to order surrender and a search if
such a power existed. Under this pressure, the Applicant finally surrendered a CD-ROM
containing the photographs to the public prosecutor.
32.
The Applicant complained to the Dutch national courts, which lifted the seizure and
ordered the CD-ROM to be returned. However, the Dutch courts held the seizure was
lawful and refused to make an order for copies of the photographs to be destroyed or
to grant an injunction to prevent the use of the information contained within them.
33.
The Applicant complained to the ECtHR that in being compelled to give up information
that would allow its journalistic sources to be identified, its rights under Article 10 had
been violated. Initially, the Chamber held that there had been no such violation, but
on appeal to the Grand Chamber, it held that there had been a violation of the
Applicant’s Article 10 rights and awarded €35,000 in compensation.
34.
From paragraph 59 of the judgment, the Court conducted a review of its case law on
the issue of journalistic sources and provided a concise summary of the approach
which has been adopted by the ECtHR to this issue:
“59. In its earlier case-law the Court has found various acts of the authorities
compelling journalists to give up their privilege and provide information on
their sources or to obtain access to journalistic information to constitute
interferences with journalistic freedom of expression. Thus, in Goodwin v. the
United Kingdom, cited above, the Court held a disclosure order requiring a
journalist to reveal the identity of a person who had provided him with
107
Application no. 38224/03 - 14/09/2010
information on an unattributable basis, and the fine imposed upon him for
having refused to do so, to constitute an interference with the applicant's
right to freedom of expression as guaranteed by paragraph 1 of Article 10.
60. In the British Broadcasting Corporation decision referred to by the
Government (paragraph 54 above), the Commission distinguished the case of
Goodwin v. the United Kingdom case on the grounds that Mr Goodwin had
received information on a confidential and unattributable basis, whereas the
information which the BBC had obtained comprised recordings of events that
had taken place in public and to which no particular secrecy or duty of
confidentiality could possibly attach”. The Court notes that nothwithstanding
this finding the Commission “assume[d] an interference with the BBC's Article
10 rights in the case”.
61. In Roemen and Schmit v. Luxembourg, cited above, § 47; Ernst and
Others v. Belgium, no. 33400/96, § 94, 15 July 2003; and again in Tillack v.
Belgium, no. 20477/05, § 56, ECHR 2007-XIII, the Court found that searches
of journalists' homes and workplaces seeking to identify civil servants who
had provided the journalists with confidential information constituted
interferences with their rights guaranteed by paragraph 1 of Article 10. In
Roemen and Schmit, loc. cit., the Court also pointed out that the fact that the
searches proved unproductive did not deprive them of their purpose, namely
to establish the identity of the journalist's source.
62. In Voskuil v. the Netherlands, cited above, § 49, an interference with the
applicant's rights under Article 10 of the Convention was found in that a
journalist's refusal to name the person who had presented him with
information on alleged wrongdoing by police officers in a criminal
investigation led the domestic court to order his detention in an attempt to
compel him to speak.
63. Most recently, in Financial Times Ltd and Others v. the United Kingdom,
[2010] ECHR, 24,the Court found an order for the disclosure of the identity of
an anonymous source of information addressed to four newspaper publishers
and a news agency to constitute an interference with their rights under Article
10. Even though the order had not been enforced, that did not remove the
harm to the applicant company since, however unlikely such a course of
action might appear by the time the Court delivered its judgment, the order
remained capable of being enforced.”
35.
The Grand Chamber held that the order for compulsory surrender of journalistic
material in the instant case, which contained information capable of identifying
journalistic sources, was an interference with the Applicant’s freedom to receive and
impart information under Article 10(1).108 Although no search of the Applicant’s
premises had actually occurred, and the material was eventually surrendered
voluntarily, there was no doubt that the threat of such action, accompanied as it was
by the arrest of the editor, was a serious one which could have had a detrimental
effect on the Applicant and free speech with the Court stating that “a chilling effect
will arise wherever journalists are seen to assist in the identification of anonymous
sources.”109
36.
However, unlike the Chamber, the Grand Chamber did not consider this interference to
be ‘prescribed by law’. Although Article 96a of the Dutch Code of Criminal Procedure
(which sets out the power to order a surrender of material where a crime is suspected
of having been committed) provided the statutory basis for the interference, the Grand
Chamber considered that the “quality” of this law was deficient.
37.
The Grand Chamber found that the “vital importance” of the protection of journalistic
sources meant that any interference with it should be attended with legal procedural
safeguards. Most important of these safeguards was the guarantee of a review by a
judge or other independent and impartial decision-making body:
“[I]nvested with the power to determine whether a requirement in the public
interest overriding the principle of protection of journalistic sources exists
prior to the handing over of such material and to prevent unnecessary access
to information capable of disclosing the sources’ identity if it does not.”110
38.
The exercise of Article 96a in the Netherlands was entrusted to the public prosecutor.
He was, in procedural terms, a party to proceedings and thus could “hardly be seen as
objective and impartial”.111 Although the duty investigating judge had been contacted
in this particular case, this was only by the agreement of the parties, and he had
lacked any legal basis for his involvement. By law, his role was merely advisory and in
theory the public prosecutor could have continued to compel surrender regardless of
the investigating judge’s opinion.112 In the view of the Grand Chamber, this meant
that:
“[T]here was no procedure attended by adequate legal safeguards for the
applicant company in order to enable an independent assessment as to
108
para 72
para 71
110
paras 88- 90
111
para 93
112
paras 96-97
109
whether the interest of the criminal investigation overrode the public interest
in the protection of journalistic sources” (para 100) which was “scarcely
compatible with the rule of law”.
39.
Accordingly the interference amounted to a violation of Article 10 as it was not
prescribed by law.
40.
R. v. National Post,113 is a decision of the Supreme Court of Canada relating to the
“Shawinigate” scandal involving former Canadian Prime Minister Jean Chrétien. The
scandal arose from the sale of a golf course and adjacent hotel by the former PM and
his business partners to a Mr. Duhaime in 1993, shortly before Mr. Chrétien became
PM. The purchaser of the hotel wished to expand the premises and to this end applied
for a loan from the Business Development Bank of Canada (BDBC). Though his initial
application was rejected, a second application succeeded and he received a loan for
$615,000.
41.
Following media investigations, Mr. Chrétien admitted to calling the president of BDBC
on behalf of Mr. Duhaime prior to the loan approval and thereafter the president of
the Bank resigned. In 2001 the National Post obtained related documents from a
secret source purporting to contain evidence of a debt owed by Mr. Duhaime to a
Chrétien family holding company.
42.
The former PM claimed the documents were forged and his lawyer claimed that Mr.
Beaudoin was the source. Under a promise of confidentiality a “secret source”,
appropriately referred to as Mr. X, and through an intermediary, Mr. Y, provided a
journalist with the documents implicating Mr. Chrétien.
43.
To assess the authenticity of the documents the journalist forwarded them to the
Prime Minister’s Office, the PM’s legal counsel, and the Bank. All claimed the
documents were a forgery and a complaint was made to the police. After the National
Post denied a request from the police to hand over the documents the police obtained
a warrant and assistance order from the Ontario Court of Justice for the National Post
to produce the documents.
44.
The National Post made a successful application to the same court to quash the
orders.114 The Ontario Court of Appeal overturned that decision115 and the National
Post was granted leave to appeal by the Supreme Court (“SCC” hereafter).
45.
The following primary questions were addressed by the SCC:
113
2010 SCC 16
R. v. National Post (2004), 69 O.R. (3d) 427
115
R. v. The National Post (2008), 89 O.R. (3d) 1)
114
Does a journalist-source confidentiality privilege exist under s. 2(b) of the Canadian
Charter of Rights and Freedoms?
Is there a common law journalist-source confidentiality privilege?
If question 2 is answered in the affirmative, should a journalist-source confidentiality
privilege be applied on a class or case-by-case basis?
Does the media merit special consideration under s. 8 of the Charter?
i.
ii.
iii.
iv.
46.
Section 2(b) of the Charter provides that everyone has fundamental freedoms
including “freedom of thought, belief, opinion and expression, including freedom of the
press and other media of communication.” The appellants and supporting interveners
argued that s. 2(b) of Charter affords journalists a “constitutional immunity against
compelled disclosure of secret sources.”
47.
In arguing for constitutional (Charter) immunity, the British Columbia Civil Liberties
Association and the Canadian Civil Liberties Association proposed the following broad
three-part test: if (1) a journalist, has (2) engaged in news gathering, and (3) “has
acquired information under a promise of confidentiality” she should enjoy immunity,
unless an exception can be established under s. 1 of the Charter. This submission was
rejected by the Supreme Court for a number of reasons.
48.
First, the SCC held that finding in favour of constitutional immunity would establish
Canada as one of the first common law jurisdictions to establish such a level of
protection and noted that similar privileges, such as solicitor-client privilege, have not
been afforded constitutional protection.
49.
Second, the majority found that the phrase “news gathering” necessitated a broad
interpretation and various forms of news gathering, including the use of long-range
microphones and telephoto lenses, were not “techniques entrenched in the
Constitution.” In keeping with this line of reasoning, the majority stated that in this
day and age the notion of “journalist” is quite broad, incorporating “blogging…[and]
tweeting.” The majority was accordingly of the view that:
“[T]o throw a constitutional immunity around the interactions of such a
heterogeneous and ill-defined group of writers and speakers and whichever
“sources” they deem worthy of a promise of confidentiality and on whatever
terms they may choose to offer it…would blow a giant hole in law
enforcement and other constitutionally recognized values such as privacy.”116
50.
116
In relation to the second and third major issues in the case, namely whether a
journalist-source confidentiality privilege had a basis in the common law and whether
it should be a class-based privilege, the SCC held that the existence of such a privilege
fell to be determined on a case-by-case basis.
Para. 40
51.
The applicant’s contention that a class privilege for journalists existed was rejected on
the basis of a lack of precedent in both Canadian and foreign jurisdictions and the fact
that journalists are not a regulated professionals such as lawyers or the police. In
addition, the majority was of the view that it would be difficult to measure the scope
and particulars of such a privilege in light of the variable nature of the journalism
profession.
52.
The Court held that if confidentially could be established at common law then a
measure of protection could be afforded to certain confidential communications, if the
following factors are met:
1. The communication originates in a confidence that the identity of the
informant will not be disclosed;
2. The confidence must be essential to the relationship in which the
communication arise;
3. The relationship must be one which should be “sedulously fostered” in the
public good;
4. The court must consider whether in the instant case the public interest
served by protecting the identity of the informant from disclosure outweighs
the public interest in getting at the truth.
53.
While the first three conditions were satisfied in this case, the Court found that the
fourth criterion was not. The majority found that when making a determination under
criterion 4:
“[T]he nature and seriousness of the offense under investigation, and the
probative value of the evidence sought to be obtained…[are] measured
against respecting the journalist’s promise of confidentiality.” 117
54.
117
The SCC did not shy away from spelling out the consequences of its decision, stating
as follows at paragraph 69:
Para 61.
“The bottom line is that no journalist can give a source a total assurance of
confidentiality. All such arrangements necessarily carry an element of risk that
the source’s identity will eventually be revealed. In the end, the extent of the
risk will only become apparent when all the circumstances in existence at the
time the claim for privilege is asserted are known and can be weighed up in
the balance. What this means, amongst other things, is that a source who
uses anonymity to put information into the public domain maliciously may not
in the end avoid a measure of accountability.”
55.
The final issue considered by the Court related to warrant and assistance order
obtained by the police and is not directly relevant to the present discussion.
Irish Approach
56.
The Court of Criminal Appeal in re Kevin O'Kelly (1974) 108 I.L.T.R. 97 held that
journalists enjoyed no special privilege in relation to their sources or informants.
Walsh J. dealt with that aspect of the matter (at p. 101 of the report) in the following
terms:
“The Constitution, in Article 40, s. 6, states that the State shall endeavour to
ensure that the organs of public opinion, such as the radio and the press,
while preserving their right of liberty of expression, including criticism of
government policy, shall not be used to undermine public order or morality or
the authority of the State. Subject to these restrictions a journalist has the
right to publish news and that right carries with it, of course, as a corollary
the right to gather news. No official or governmental approval or consent is
required for the gathering of news or the publishing of news. It is also
understandable that newsmen may require informants to gather news. It is
also obvious that not every news gathering relationship from the journalist's
point of view requires confidentiality. But even where it does journalists or
reporters are not any more constitutionally or legally immune than any other
citizens from disclosing information received in confidence.”
57.
In addition, Walsh J. held that the confidential nature of a document does not, of
itself, confer any privilege on a party, stating:
“The fact that a communication was made under terms of expressed
confidence or implied confidence does not create a privilege against
disclosure. So far as the administration of justice is concerned the public has
a right to every man's evidence except for those persons protected by a
constitutional or other established and recognised privilege.”
58.
In Burke v. Central Independent Television plc [1994] 2 I.R. 61 Murphy J in the High
Court cited the above dicta with approval and set out the following three propositions
of law applicable to the defendant's claim for privilege as made before him:
"First, that the courts in this jurisdiction and I believe the courts in the United
Kingdom do not accept the concept of privilege from the production of
documents based solely on a promise of confidentiality.
Secondly, that in this jurisdiction journalists do not enjoy any special rights or
privileges to protect their informants from disclosure.
Thirdly, that the alleged or claimed privilege from production based on the
possibility or even the probability that human life may be in danger has never
been recognised in any reported decision of our courts.”
59.
Murphy J. rejected the defendant’s claim to privilege based on a threat to human life
holding that the court lacked the right or duty to create such a new category. This
portion of the judgment was reversed on appeal to the Supreme Court, but the first
two propositions were not so appealed and Finlay C.J. made the following comments in
relation to the said propositions at p76:
“The learned trial judge then continued to deal with the first two of these
propositions of law developing them and setting them out in a manner which
I am satisfied was correct. On those two issues he rejected the claim for
privilege made pursuant to an asserted ground of promise of confidentiality
or a journalist's special privilege.”
60.
Similarly, O’Flaherty J in the Supreme Court stated at p.90 that he:
“…would, in general, have no difficulty in concurring with the proposition set
forth in the judgment of the Court of Criminal Appeal in In re Kevin O'Kelly
(1974) 108 I.L.T.R. 97, at p. 101, that "so far as the administration of justice
is concerned the public has a right to every man's evidence except for those
persons protected by a constitutional or other established and recognised
privilege", nonetheless, if the right to life is under threat that is a more sacred
right than the right of full and untramelled resort to the courts.”
61.
In light of the foregoing it is submitted that the approach up to the enactment of the
2003 Act in this jurisdiction in relation to the protection of journalistic sources has
more in common with the Canadian approach which emphasizes that “the public has
the right to every person’s evidence”118 than the decisions of the ECtHR which
underline the “vital importance” of the protection of journalistic sources. While both
Courts recognise the need to balance competing interests in this sphere, it is
suggested that the framing of the issue in terms of confidentiality at common law by
the SCC is the more appealing approach in an Irish context.
62.
In Mahon v Keena119, both the High and Supreme Courts reviewed much of the
European case law set out above. The conclusions of the Supreme Court were put as
follows by Fennelly J:
“Following an extensive examination of the case law of the European Court of
Human Rights, the High Court expressed the view that the exercise of
deciding between competing interests "in a democratic society based on the
rule of law is reserved to courts established by law for that purpose". That, it
seems to me, is a correct and unexceptionable principle. I have summarised,
as did the High Court, the judgments of the European Court concerning the
balance which the courts must strike between the right to freedom of
expression, on the one hand, and the interests recognised in article 10.2 of
the Convention, on the other. That court accords a margin of appreciation to
the contracting states, and their courts, when they decide those matters. It
does not propose that these matters can be decided other than by courts.
The High Court correctly said that the defendants had "cast themselves as the
adjudicators of the proper balance to be struck between the rights and
interests of concerned". The courts cannot and should not abdicate their
responsibility to decide when a journalist is obliged to disclose his or her
source. The unilateral decision of a journalist to destroy evidence with intent
to deprive the courts of jurisdiction is, as the High Court has held, designed to
subvert the rule of law. The courts cannot shirk their duty to penalise
journalists who refuse to answer questions legitimately and lawfully put to
them.
[92] Careful consideration needs, of course, to be given to Goodwin v The
United Kingdom (1996) 22 E.H.R.R. 123. The court must "take due account"
of the principles it lays down. At this point, I raise the question as to whether
it can truly be said to be in accord with the interests of a democratic society
based on the rule of law that journalists, as a unique class, have the right to
decide for themselves to withhold information from any and every public
institution or court regardless of the existence of a compelling need, for
118
119
Para. 1 Binnie J
[2010] 1 I.R. 336 at 363
example, for the production of evidence of the commission of a serious crime.
While the present case does not concern information about the commission of
serious criminal offences, it cannot be doubted that such a case could arise.
Who would decide whether the journalist's source had to be protected? There
can be only one answer. In the event of conflict, whether in a civil or criminal
context, the courts must adjudicate and decide, while allowing all due respect
to the principle of journalistic privilege. No citizen has the right to claim
immunity from the processes of the law.”
63.
While the above dictum is broadly in accord with the decision of the ECtHR in Sanoma
Uitgevers B.V. v The Netherlands120 in so far as it emphasizes the central role of the
Courts in determining the balance to be struck between competing rights, its firm
rejection of a class privilege for journalists as a group is in line with the R. v. National
Post121decision in Canada.
64.
What is also striking, however, about the decision of the Supreme Court in Mahon v
Keena, is that it succeeds in discusses the issues of freedom of speech and journalistic
privilege without any reference at all to freedom of expression as guaranteed by Article
40.6.1.1 of the Constitution or to the possibility that it might differ in some respect
from the right considered in Article 10 of the ECHR. In view of the fact that in the
event of a conflict between Convention and Constitution provisions, the Constitution
prevails, it is perhaps surprising that an analysis of the issue would not first be
embarked on under the Constitution and subsequently, if necessary, under the
convention or at least under the provisions en bloc lest there be a divergence.
65.
In Mahon v Post Publications Fennelly J stated at paragraph 101:
“101. I believe, therefore, that the Convention analysis provides particularly
useful mechanism for examination of the justification for imposition of the restriction
sought by the Plaintiffs in the present case. As Geoghegan J said in the High Court
Judgment in Murphy v IRTC [1997] 2 ILRM ‘[A] though the European Convention on
Human Rights is not part of Irish municipal law, regard can be had to its provisions
when considering the nature of a fundamental right and perhaps more particularly
the reasonable limitations which can be placed on the exercise of that right’. “
66.
120
Fennelly J, does not, however, go on to deal with the nature of Geoghegan J’s
subsequent analysis of Article 10 where Geoghegan J states122 “It is sufficient in my
view, if there are good reasons in the public interest for the ban. Irish people with
religious beliefs tend to belong to particular churches and that being so religious
advertising coming from a different church can be offensive to many people and might
be open to the interpretation of proselytizing. Religion has been a divisive factor in
Northern Ireland and this is something which the Oireachtais may well have taken into
Application no. 38224/03 - 14/09/2010
2010 SCC 16
122
[1997] 2 ILRM 479
121
account. As McCullough J pointed out [in R v Radio Authority ex-parte Bull [1996] QB
169] a person listening to a commercial radio is for all practical purposes compelled to
listen to the advertisements. This being so, it is legitimate for the Oireachtais to have
regard to the type of advertisements which might be permitted.”
67.
My difficulty with the Judgments, both of the High Court and of the Supreme Court in
the two Mahon cases is that they treat of the issue of freedom of speech almost as
though the Constitution had by now become redundant and all analysis of the right to
free speech and restrictions thereon were to be viewed through the prism of Article
10(1) and (2) of the Convention complete with its a priori elevation of the right to free
speech above that of the protection of reputation. Not only has the protection of
reputation in question to be “necessary in a democratic society”, but as the juris
prudence of the ECtHR has subsequently prescribed, it must serve “a pressing social
need”.
68.
While for a limited class of cases in more recent times Article 8 has been successfully
prayed in aid not only in relation to privacy, but reputation, the limitations of this
oblique approach are obvious. In the first place, there is a clear incongruity between
the phraseology of article 10(2), which unquestionably makes protection of reputation
subordinate to freedom of expression and the implications which have been argued to
arise from Article 8. Whereas it has been argued that the application of an implied
protection for reputation as part of the private life of a person leads to a balancing of
this right against that of free speech without preconceptions, this approach is far from
established. This weakness is illustrated in the recent Polanco Torres decision of the
ECtHR discussed later in this paper.
69.
The Judgments of the court in Mahon v Keena and the majority Judgment in Mahon v
Business Post employed a “ECtHR” approach to the freedom of speech question. In
each case they could do so in the context that they posited no conflicting constitutional
right in opposition. The minority judgment123 dealt with the matter differently. It
implicitly indicated that the European Court of Human Rights approach might not
necessarily be apposite or adequate to resolve problems given rise to by the need to
uphold other constitutional principles. Geoghegan J stated at page 363:
“The argument then runs that the Tribunal being a creature of statute does
not have inherent powers. I cannot accept this argument for a combination
of reasons. First of all, the system of delivering an advance brief to
somebody who might be adversely affected by evidence likely to emerge at a
public hearing arises directly from the Constitution and the constitutional
obligations both to adopt fair procedures and to protect the good names of
persons. If the tribunal did not owe that constitutional obligation it would be
much simpler and more efficient from its point of view to keep everything
secret until the public hearing. A constitutional obligation superimposed in
this way and to some extent creating problems for the efficient running of the
123
(that of Geoghegan J with which Hardiman J agreed)
Tribunal cannot be more than is reasonable in all of the circumstances and it,
therefore, must necessarily embrace any desirable limitation that does not
derogate from that obligation such, as in this case, the imposition of
confidentiality. The right to impose such confidentiality is, therefore, merely
an element of the carrying out of the constitutional obligation and where it is
reasonable it would seem to me that there is an implied right by virtue of the
Constitution to impose it. A special section is not therefore necessary.
Furthermore, and for the same reason, the legal basis for the alleged
restriction exists for the purpose of Article 10 of the European Convention.
The imposed confidentiality is necessary for the ‘protection of the reputation
or the rights of others’.
70. What is in issue in the ‘journalistic privilege’ cases is the supposed chilling effect on
freedom of speech. How will the Irish courts approach the matter where the
reputation of the individual is acknowledged to be directly in the balance against the
right to freedom of speech? The Irish Constitution on its face, unlike the European
Convention confers no primacy on either right and it would appear that if a strict
‘necessary in a democratic society’ and ‘pressing social need’ approach is taken, the
European Convention is capable of producing a result in conflict with the Constitution
in that it is likely to dilute the right to good name enshrined equally in the
Constitution, principally in the interests of journalists.
71.
That the right to freedom of speech enjoyed no primacy is suggested strongly by the
Judgment of Henchy J in the Supreme Court in Hynes O’Sullivan v O’Driscoll124 where
he states in relation to qualified privilege:
“I have no difficulty in rejecting the submission, which has only slender judicial
support, that the occasion is one of qualified privilege if the person making the
communication honestly believes that the person receiving the communication has a
duty or interest in hearing it. I cannot believe that the guarantee in Article 40 s.1
sub-section 3 of the Constitution that the State will protect, and, as far as
practicable, by its laws defend and vindicate the personal rights of the citizen would
be effectuated if a right to defame with impunity is recognised on such a purely
subjective basis. An occasion of qualified privilege is to be given recognition only to
the extent that it is necessary under Article 40 s.6 sub-section 1 to recognise, on an
objective basis, the right to express freely convictions and opinions.
The
constitutional priorities will be ignored if the law considered an occasion of qualified
privilege to depend only on the honest opinion of the communicator as to the
existence of a right or duty in the other person to receive the communication.”
124
[1988] IR 436 at 449
72.
Not only does this not give a priori primacy to freedom of speech, but it actually
permits of qualified privilege only where it is necessary to recognise on an objective
basis the right to express freely convictions and opinions. To a significant extent it
inverts the language of Article 10.2 of the ECHR.
73.
It is suggested that the type of journalistic privilege contended for by the ECtHR has
the potential to conflict with the requirements of the defence of qualified privilege at
common law and the new s.26 defence created by the 2009 Act.
74.
On 21 September 2009 the Third Section of the Court of Human Rights gave
judgment in the libel case of Polanco Torres et Movilla Polanco v Spain.125 The
applicants complained that the failure of their domestic libel action was a breach of
the State’s positive obligation to protect their Article 8 rights to reputation. The
application was dismissed on basis that the article had the characteristics of a neutral
report, included a denial, and on the basis of a finding that the journalist had acted
in good faith and discharged the obligation to take sufficient steps to verify the
factual statements made.
75.
The applicants were the wife and daughter of CM, the former President of the Civil
and Criminal Division of the Cantabria Higher Court of Justice who died in 1998. The
second applicant was acting on behalf of her father. On 19 May 1994 an article in
the national daily newspaper “El Mundo” accused the first applicant (identified as the
wife of CM) of involvement in unlawful dealings with a company. There were said to
be “irregular” transactions which were “opaque” to the tax authorities. It was
suggested that these were illegal operations with “dirty money”.
76.
The report was based on computer discs received from an anonymous source which
purportedly contained the company’s accounting data. “El Mundo” had verified with
the company’s former accountant that the accounts were genuine and quoted him
using quotation marks. He confirmed that the financial transactions at issue had
been unlawful and that transfers of funds had not been declared by the company to
the tax authorities. The article also contained a statement by the first applicant
categorically denying any links with the company.
She said that the fact she
appeared in the accounts of the company in question was probably the result of a
“manoeuvre” by a defendant in a criminal case with the aim of discrediting her
husband C.M. The full article also appeared the same day on the front page of the
newspaper “Alerta”
77.
The first applicant and her husband C.M. brought defamation proceedings against “El
Mundo”. They succeeded at first instance and on appeal but the Constitutional Court
quashed the judgments of the courts below. It found that the journalist had used all
“effective” possibilities to verify the information, having confirmed the authenticity of
125
application no. 34147/06 - The judgment is available only in French. There is, however, a press release in
English.
the impugned accounts with the source of information that was the most reliable on
that question, namely the former accountant of the company.
78.
The Constitutional Court took into account the fact that the journalist had included in
his article the denial by Mrs Polanco Torres. The lower courts had also found against
the newspaper “Alerta” but its appeal was declared inadmissible because “Alerta”
had not made any efforts to verify the information it reported but had simply copied
it from “El Mundo”. The applicants complained that Spain was in breach of its
positive obligation to protect the honour and reputation of the first applicant and her
husband.
79.
The ECtHR first noted that it had already held that:
“A person’s reputation was part of his personal identity and moral integrity
which formed part of his private life, even within the framework of a political
debate … It was necessary for the allegations to be sufficiently serious for
their publication to have a direct impact on the private life of the person
concerned. In order for Article 8 to be in play, the publication which might
tarnish a person’s reputation had to constitute an impairment of his
reputation of such seriousness that his personal integrity is compromised”.126
80.
The Court noted that it had to strike a fair balance between the right to protection of
reputation and the right to freedom of expression. It recalled that Article 10
provides journalists with protection when they are acting bona fide, reporting on
matters of general interest based on accurate factual information.127
81.
It was accepted that Article 8 was applicable, bearing in mind the seriousness of the
allegations. The El Mundo article undoubtedly concerned a subject of general interest
for its Spanish readers. The journalist who wrote it had a duty to ensure that it had
a sufficient factual basis. The journalist had verified the authenticity of the discs
with the former accountant of the company and had given the first applicant an
opportunity to comment128. Although the accountant had been dismissed and was
subject to criminal proceedings, the Court found that this did not call into question
his reliability as a source who implicated a third party and the legality of the means
by which the information was obtained was not relevant.129
82.
As a result, the Court concluded that:
126
(Karakó v. Hungary, Judgment of 28 April 2009, para 23), cited at para. 40
Para. [43]
128
Para. [50]
129
Para. [51]
127
“the journalist who wrote the article in question could reasonably rely on the
sources that he had available … There was no reason to doubt that he had
taken sufficient measures to verify the veracity of the information” 130
83.
The ECtHR concluded that the Constitutional Court had put forward sufficient
grounds in finding that the journalist’s right to impart information in the general
interest had to be given more weight, than the applicants’ right to the protection of
their reputation and honour and by six votes to one, held that there had therefore
been no violation of Article 8.
84.
Judge Zupančič dissented holding that:
“To support, as the majority do in this case, a pro forma verification and
confirmation of the source, involves an unacceptable lowering of the
protection of the individual against unprofessional or malicious conduct”
85.
The ECtHR was of the view that the fact that the domestic courts had upheld the
applicants’ complaint against another newspaper, “Alerta” was not discriminatory or
inconsistent. The second newspaper had run the story on the front page and had
taken no steps to verify, simply reproducing the “El Mundo” article in a non neutral
form without telling its readers that this is what is had done. 131
86.
A number of interesting points arise out this judgment. First, the Third Section has
confirmed that “honour and reputation” are protected by Article 8, subject to a
“threshold of seriousness” meaning that the relevant attack must be on personal
integrity.
Second, it is clear that the Court took a relatively “media friendly” approach to the
requirements of verification and the level of journalistic responsibility which must be
satisfied if a false public interest story is to attract the protection of Article 10. The
steps taken to verify the data in the instant case simply involved interviewing the
company’s dismissed former accountant (who was subject to criminal prosecution).
Though nothing further was done to verify the story, the Court nevertheless found
that the requisite standard for Article 10 protection had been met.
87.
88.
A “denial” by the first applicant was included in the article, but the story appears to
have made direct allegations of wrongdoing. This test appears to be less stringent
130
Para. [52]
131
Para. [60]
than that laid down in earlier case law132 and less stringent that the Reynolds
requirements of responsible journalism.
89.
It will be recalled that the third factor which Lord Nicholls outlined in Reynolds133 for
consideration in relation to a plea of qualified privilege related to the source which
provided the information published. As Lord Nicholls indicated in that case:
“Some informants have no direct knowledge of the events. Some have their
own axes to grind, or are being paid for their stories.”134
90.
There is considerable force in the dissenting judge’s view that what was done by way
of verification was “pro forma”. In particular, the source appears to have been
someone with a clear “axe to grind” whose evidence should have been viewed with
considerable caution.
91.
Third, the Court accepted that a second newspaper which had lifted the story from
the first and repeated it without attribution or investigation was in a different
position to the paper which had carried out the investigations, such as they were,
and was rightly sanctioned by the domestic courts.
D.
Reynolds Privilege in Ireland
92.
Whatever the arguments may have been about the existence of Reynolds Privilege in
Ireland and its precise form, it is now clear following the introduction of the 2009 Act
that so far as causes of action since the 1st January 2010, it exists in statutory form.
93.
Before looking briefly at some aspects which create difficulty in detail, it should not
be forgotten that in the absence of the enactment of the Human Rights Act 1998 in
the UK there is no particular reason to believe that the Reynolds case would have
been decided in the way it was. In consequence we would not have had Jameel and
the pre-existing law in relation to qualified privilege or a public interest defence,
however it might be called, may well not have arisen.
132
see, eg Alithia v Cyprus, Judgment of 22 May 2008
Reynolds v Times Newspapers Ltd [2001] 2 AC 127
134
[2001] 2 AC 127 at 205
133
94.
It is fashionably considered axiomatic that a privilege of this nature ought to exist.
However, it is quite unfashionable at present to dwell on the hazards which the
adoption of the current approach embodies. Quite apart from the potential damage
to a person’s reputation a critical philosophical issue is represented by its potential
effect on the status and credibility of information which is given to the public. In his
dissenting judgment in Dun & Bradsrteer, Inc v Green Moss Builders, 472 U.S. 749
(1985) Justice White articulated a concern, not shared by a majority of the Court,
which encapsulates a potentially serious problem presented by a more “liberal” view,
stating:
“In a country like ours, where the people purport to be able to govern
themselves through their elected representatives, adequate information about
their government is of transcendent importance. That flow of intelligence
deserves full First Amendment protection. Criticism and assessment of the
performance of public officials and of government in general are not subject
to penalties imposed by law. But these First Amendment values are not at all
served by circulating false statements of fact about public officials. On the
contrary, erroneous information frustrates these values. They are even more
disserved when the statements falsely impugn the honesty of those men and
women and hence lessen the confidence in government. As the Court said in
Gertz:
"[T]here is no constitutional value in false statements of fact. Neither the
intentional lie nor the careless error materially advances society's interest in
'uninhibited, robust, and wide-open' debate on public issues.”
95.
It should not be underemphasised that in departing from the “gold standard” of the
defences of justification/truth and fair comment/honest opinion in respect of public
comment, the interest of the public in the dissemination of accurate information is
just as likely to be compromised as it is argued to be enhanced by proponents of
public interest privilege.
96. Given the potential for confusion between the observations of O’Caoimh J in Hunter
v Gerard Duckworth & Company135and the ruling of Charleton J in Leech v
Independent Newspapers136 , which broadly adopts the Jameel approach, it is
scarcely believable that s.18(1) of the 2009 Act was enacted in its current form.
Leech purports to adopt Jameel, but leaves to a jury for decision as a matter of fact
all those matters as to the existence of the defence including those reserved in
England to the trial judge. The trial judge’s function appears to be limited to finding
whether there is evidence to go before the jury on the basis of which it could come
to conclusions as to whether the publication was in the public interest and the
journalism responsible. While the Act appears intended to and may well codify the
law on fair reporting in a matter of public interest, it was surely not too much to ask
that s.26 might unambiguously set out the only regime so that a journalist could
135
136
st
High Court unreported 31 July 2003
[2007] IEHC, 223
evaluate a story and a litigant could contemplate engaging in litigation or refraining
from it.
97. Despite this, it is suggested that there is a tension between claims to journalistic
privilege and “Reynolds” defences, whether statutory or otherwise. In Reynolds
itself the third of Lord Nichols’ criteria to be taken into account was “the source of
the information. Some informants have no direct knowledge of the events. Some
have their own axes to grind, or are being paid for their stories.” This necessarily
involves the possibility of the jury having to evaluate the worth of the informant and
perhaps consider the informant’s identity. S.26 of the Act in addition to requiring a
consideration of whether in all of the circumstances it was fair and reasonable to
publish a statement includes consideration of the attempts made, and the means
used by, the Defendant to verify the assertions and allegations concerning the
Plaintiff in the statement. In either case a question arises as to the entitlement of a
Plaintiff, faced with such a defence to know the source of the story so that the jury
may consider whether or not it was of sufficient weight to justify the publication.
98. The universal and unsurprising attitude of the newspapers has been to refuse by way
of particulars or in discovery any information which would lead to the identification of
the source. Can the Defendant, which may prima facie be entitled to protect its
source do so, while continuing to insist on conducting a defence which depends
significantly on the weight and standing of that source? If the defence is maintained
should not the source be revealed? If the source is not revealed can the defence be
maintained?
99. The issue arose for argument before McKechnie J in Leech v Associated Newspapers,
but after argument the case was settled before Judgment was given by McKechnie J.
More recently an issue arose before De Valera J in Roche v Sunday
Newspapers Limited. Here the Plaintiff sued in relation to allegations, inter alia that
she was a member of a cocaine taking jet-set. The Defendant relied, inter alia, on a
100.
defence of public interest qualified privilege. In the particulars of the claim, the
Defendant claimed that the articles concerned an investigation by the Gardai into the
death of model and socialite Katy French. The particulars alleged that Ms. French
was a friend of the Plaintiff and instanced various other alleged connections. The
particulars stated: “The authors had a professional duty to seek out the information
imparted in the article. The articles were thoroughly researched prior to publication
and the Defendant believed the facts stated in the article to be true. The Defendant
acted reasonably in gathering and publishing the information.”
101.
The defence went on to plead that an award of damages against it would
constitute an infringement of its right under Article 10 of the European Convention.
102.
In due course the Plaintiffs sought discovery of the materials “pertaining to
the thorough research carried out by the authors of the articles, the subject matter
of these proceedings, and all information gathered by the authors of the said article
prior to their publication.”
103.
The Defendant declined to make discovery and was eventually ordered to do
so. Ultimately, it swore an Affidavit disclosing supposed research primarily consisting
of a mass of prior tabloid stories about the death of Katy French. Among the
documents in respect of which privilege was claimed were 19 unspecified documents
described simply as “document from potential witness”. No basis for this claim of
privilege was then made. A much later Affidavit claimed privilege in the following
terms:
“Firstly, they were obtained by a journalist from a confidential source, and the
production of the documents would tend to lead to the identification of that
source. Secondly, they subsequently came into the possession of the
solicitors for the Defendant in the course of their preparation for the defence
of this claim and were therefore obtained in contemplation of litigation and
for the purpose of the same.”
104.
Without dwelling for the purposes of this paper on the second of these two grounds,
the basis for the Defendant’s claim of “journalistic privilege” is worthy of remark.
The Defendant claimed privilege by reference to Goodwin v United Kingdom, Mahon
& Others v Keena and Financial Times Limited v United Kingdom137. The Plaintiff’s
solicitor’s suspicion, as expressed on Affidavit, is that the documents are ones
unlawfully given by some person, one of the many, who had access to materials
gathered for the police investigation. The Defendant has given no indication
whatever of the basis for the claim of confidentiality. It has not said that the
documents would name or reveal a confidential source. It merely says that the
production of the documents would “tend to lead” to the identification of that source.
In argument is founded primarily on the Financial Times Limited v United Kingdom, it
says that:
“Even in circumstances were disclosure would not lead to identification of a
source, but only of documents which might, on examination, lead to such
disclosure, that distinction was not crucial, since a chilling effect would arise
wherever journalists were seen to assist in the identification of anonymous
sources. It was sufficient for that purpose that journalists were required to
give information or assistance for the purpose of identifying the source.”
105.
137
The upshot of this stance which is, needless to say, founded on the “necessary in a
democratic society” and “corresponding to a ‘pressing’ social need”, is that the
obverse of what was found by the grand chamber to be deficient in Sanoma v The
Netherlands would then arise. The court, without any evidence on which it could
evaluate this, would be put in a position were the Defendant’s claim would be selffulfilling. In order to succeed in a claim of privilege the journalist need only advance
that claim without providing any material on the basis of which a court could
evaluate its weight. In a situation in which the court was required to conduct a
balancing exercise involving the risk of identification of a source against the
importance of the documents one way or another in the litigation, it could not do so.
All of this would arise in a situation in which the Defendant seeks to rely on a
defence casting the onus on it to prove that it acted in the public interest as a
responsible newspaper.
All mentioned above
106.
It is suggested that in these circumstances involving, as they do, a balancing of the
right to free speech against the constitutional right of the Plaintiff to freedom of
speech, Sections 2 and 4 of the European Convention on Human Rights Act, 2002,
are no warrant for the use of the priorities ordained by Article 10.2 of the Convention
in conducting the balancing exercise. To do so would be to allow the statute
indirectly to alter the prima facie equal status given to the right to good name and
the right to freedom of speech prescribed in the Constitution.
107.
That this prima facie equality is an approach compatible with the law as it stood
immediately prior to the enactment of the European Convention on Human Rights
Act is indicated by the Judgment of Dunne J in Herrity v Associated Newspapers
(Ireland) Limited138:
“That is a powerful expression of the right of freedom of expression. It is not
authority however for saying that the right to freedom of expression is more
significant than the right to privacy. As Hoffman LJ noted in R v Central
Television Plc [1994] FAM 192, the freedom is subject to clearly defined
exceptions laid down by common law or statute. It is in that context that the
constitutional right to privacy comes into the equation. Accordingly, it seems
to me that there is a balancing exercise engaged in circumstances where the
right to freedom of expression conflicts with the right to privacy.”
E.
Conclusion
108.
The European Convention on Human Rights, applicable primarily to members of the
Council of Europe, is one with an extremely diverse history in relation to the freedom
of the press. Of the 47 member States of the Council 29, at least, have lived under
dictatorships without anything which might be recognized as a free press at some
time since and many up to much more recent times. Many do not have a full free
press still. For understandable reasons states and jurists whose background is
rooted in opposition to suppression of freedom of speech and a fundamental threat
to freedom of expression place a high value on this freedom in contrast to the
maintenance of the good name of the citizen. This, it is submitted, is reflected in the
language of Article 10 and has led to a hugely lopsided approach to conflicts
between these values, particularly by comparison with the values and balances
embodied in the judgments of the courts in the common law jurisdictions prior to
1998 in the United Kingdom and 2003 Ireland increasing its influence in domestic
law.
109.
However, significant differences arise from the different manner in which the
Convention has been dealt with under Statute in the United Kingdom and in this
jurisdiction. The United Kingdom approach was exemplified at the outset by the
decision of Butler Slossp in Venables & Thompson v Newsgroup Newspapers Limited
138
[2009] 1 IR 316
& Others139, which prescribed that the court, as a public authority, was obliged in
cases relating to the Convention to act compatibly with Convention rights in
adjudicating on common law causes of action and that by virtue of s.12(4) of the
Human Rights Act 1998, the court had to give direct effect to the right to freedom of
expression under Article 10 and that Articles 10(1) and 10(2) were to be construed
narrowly in circumstances where the onus lay on those seeking such restrictions to
show that they were in accordance with the law, necessary in a democratic society to
satisfying one of the strong and pressing social needs identified in the Article and
proportionate to the legitimate aim pursued.
110.
For the reasons outlined above, it is submitted that the manner of application of
Convention principles in Irish law is less absolute. However, the long tradition of the
Irish courts, particularly in matters such as defamation where our authoritative
domestic judgments are few is, to look to authorities there as weighty and
persuasive precedent. It is unsurprising that a combination of the decisions of the
Strasbourg court and those in the courts in particular of England and Wales have a
strong tendency to influence the course of the law here.
111.
It is submitted that, particularly since the passage of the 2009 Act, the law here is in
need of no further inclination towards the interests of Defendants in defamation
cases in particular. A glance at the European case law makes it very clear that the
tendency of the European Court of Human Rights to find in favour of the press is
compounded by the fact that the press is, in defamation cases, almost exclusively
the body which has the resources, financial and otherwise to bring litigation before
it. This alone very probably leads to a disproportionate gain for Defendants where
the only part to the underlying litigation which is represented before the court is the
erstwhile Defendant and the State sued may take a much less committed view on
the litigation in question. Contrary to what commentators may say, the 2009 Act on
balance represents a significant shift in the litigation equilibrium from Plaintiff to
Defendant. There is no evidence that serious journalism in Ireland has suffered by
comparison with other countries under the prior remit. Great caution should be
exercised before allowing the constitutionally ordained equality of rights suggested
prior to the enactment of the 2003 Act to be eroded further.
139
[2001] 2 WLR 1038