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Saturday 17 November 2018

Call to end use of juries in libel cases

Conference hears that current 'out of kilter' regime helps neither plaintiffs nor defendants

Vincent Crowley Picture: Colm Mahady/Fennells
Vincent Crowley Picture: Colm Mahady/Fennells

Shane Phelan in Malaga

A conference has heard calls for the abolition of the use of juries in defamation cases and for a cap on damages awards.

Vincent Crowley, chairman of NewsBrands, the organisation representing 17 national newspapers, print and online, said the use of juries had lengthened cases, increased legal costs, and led to unpredictable outcomes, particularly in relation to the size of awards.

He also told the Bar of Ireland's 'Defamation Nation' conference in Malaga, Spain that new defences introduced in the 2009 Defamation Act had proved too complex to be run effectively before juries.

The conference also heard calls for news publishers to be afforded the same protection as Google and Facebook when it comes to user comments.

"The press needs protection and a system that will target the author, not the newspaper. News websites are currently at a legal and commercial disadvantage to companies such as Google and Facebook," he said.

"Google and Facebook are not deemed to be publishers, yet are purveyors and influencers but seem to take little or no responsibility." He said recent curbs on advertising related to the abortion referendum by Google and Facebook may be the beginning of a realisation that these organisations do have a responsibility for the content that goes up on their platforms.

Mr Crowley said newspaper publishers in Ireland were looking for "a level playing field", and pointed to the UK where legislation introduced in 2013 gave publishers protections in relation to comments posted to news websites.

A review of the effectiveness of the 2009 Defamation Act, ordered by then Justice Minister Frances Fitzgerald in 2016, has yet to be completed.

Mr Crowley said the current defamation regime serves neither plaintiff nor defendant effectively. In particular it allows for the imposition of huge damages that are largely out of kilter with awards made in defamation cases in other jurisdictions.

Between 2010 and 2015, in excess of €30m was spent by NewsBrands' members defending defamation actions, he said. Mr Crowley said the award by the Supreme Court of €1.25m to communications consultant Monica Leech, a decision later criticised by the European Court of Human Rights, remained "an overhang" affecting the industry.

This was having an impact not just on awards but on the size of out-of-court settlements. "You don't hear about them because you don't see them in the newspapers, but settlement amounts run in the hundreds of thousands on a regular basis for relatively minor infractions," he said.

During a questions and answer session, Senator Michael McDowell, a barrister and former Attorney General, asked if consideration had been given to the relationship between the media and the judiciary if judges determined liability and damages in defamation cases. He pointed to the "vicious reaction" by some UK newspapers towards judges who decided the British Government would need the permission of parliament to trigger Article 50 after the Brexit referendum.

Sunday Independent

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