Sunday 4 December 2016

Long-awaited review of defamation laws announced

Published 01/11/2016 | 14:29

Frances Fitzgerald. Photo: Damien Eagers
Frances Fitzgerald. Photo: Damien Eagers

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

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A review of the Defamation Act 2009 was supposed to have commenced in July 2014, but was deferred by the Government.

Ms Fitzgerald announced today that as part of the review, the Department of Justice will take submissions between now and December 31.

Although the 2009 Act allowed judges to give more directions to juries on the assessment of damages, news organisations, including Independent News & Media, the owners of this website, believe this has brought about only limited changes and libel awards remain much higher than elsewhere in Europe.

NewsBrands, the representative body for national newspapers, both print and online, has warned the level of awards in defamation cases presents a huge challenge to freedom of expression.

The existing laws could also threaten the very existence of media organisations, it argues.

NewsBrands says uncertainty surrounding awards prevents a publisher from ascertaining the extent of potential liability.

Given the costs involved, many newspapers simply won’t take the risk of publishing an article, no matter how certain they are of their facts.

The organisation has pointed to a decision by the Supreme Court to award €1.25m in a case it accepted was not one of the most serious of defamation actions.

The award was approximately ten times higher than would have been made in the UK.

In announcing the review, Ms Fitzgerald said: “While this review is a statutory requirement, it also examines significant issues for our society.

“Defamation law needs to strike the right balance between two important rights – the right to freedom of expression in a democratic  society, and the right to protect your good name and reputation against unfounded attack.

“We want to ensure that our journalists, commentators and news media can exercise their vital role in a democratic society – to report, investigate and challenge, independently and vigorously, in the public interest.

“At the same time, we also want to ensure that the law offers effective protection against damaging comments which are defamatory – and which, even if untrue, can cause such distress, spread so quickly, and stick so fast, particularly online or in social media.”

Ms FitzGerald confirmed the review would examine reforms of defamation law in other jurisdictions and examine their applicability to Ireland.

Press Ombudsman Peter Feeney welcomed the decision to initiate the review.

“Central to any proposed changes in the Defamation Act must be the protection of the right of freedom of expression. The Press Council will be making a submission to the review body,” the council said in a statement.

In a statement, NewsBrands said it looked forward to taking part in the consultation process.

“The costs involved and the level of awards made place an enormous burden on publishers,” it said in a statement.

“Since 2010, defamation actions have cost NewsBrands members in excess of €30m.

“Awards made in Ireland are wholly out of kilter with other jurisdictions, including the UK, where effectively a cap of Stg£275,000 (€305,000) exists though the reality is that awards rarely exceed £100k, a fraction of the levels awarded in Ireland.”

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