Friday 21 October 2016

Review of defamation laws is long overdue

Published 19/12/2015 | 02:30

Martin McDonagh. Photo: Courtpix
Martin McDonagh. Photo: Courtpix

They say too many words can cheapen the value of speech, but they never seem to cheapen the value of libel awards. Yesterday, in a timely and insightful address, Attorney General Máire Whelan called for a review of Ireland's defamation laws. She did so on the grounds that journalists reporting in the courts should not be exposed to the risk of litigation or damages claims due to a simple oversight in reporting.

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She also highlighted the critical role Article 34.1 of the Constitution has in guaranteeing that justice should be administered in public. The media's role is therefore vital .

She said she believed the time had come to review defamation laws to ensure public interest was fully served. Ms Whelan's observations are both welcome and refreshing. The values in the Constitution should not be compromised or diluted by fears or concerns on the part of a journalist that an honest error could end in costly damages.

As this media group can attest, in Ireland the extraordinary cost of defamation has effectively enforced a gag on free speech. Recently, the Court of Appeal described a jury's decision to award damages of €900,000 to Martin McDonagh as "perverse" and overturned the decision.

Legal fees have sometimes resembled telephone numbers.

Of course, it is crucial that there is a balance between free speech and one's reputation.

But massively punitive awards can have a chilling effect and have not served the public interest. Fear of severe financial implications can indeed stymie necessary investigations.

What is known and what can be proved are very different in the eyes of the law. Compensation must rightly be paid when a person's good name is wrongfully tarnished.

But a sense of proportion must prevail. The Defamation Act of 2009 introduced valuable reforms, including the right for juries to receive guidance in relation to the matter of damages. The right to direct must be used. Juries can still decide on the size of a payout as they see fit. The Act also provides for a review of its operation within five years. This is now due. A level playing field, squaring off the parallel rights to a good name and freedom of expression, needs to be established.

Irish Independent

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