Libel reform now urgently required
The standard of a reasonable man is used to measure whether a statement is considered defamatory or not. In Ireland, the issue of defamatory effect is still left to a jury as representing a reasonable man. Such a man is presumed to be somewhere between the two extremes of unusually suspicious and unusually naive.
In a landmark judgment last week, the Court of Appeal set aside a jury verdict of defamation on the grounds that it was "perverse". The judgment, in the case of Martin McDonagh and Sunday Newspapers Limited, is as welcome as it is significant, and should form the basis of further required reform of this country's notoriously out-of-step defamation laws, not least on the issue of removing the presumption in favour of a trial by jury in such cases.
A defamatory effect is produced where a statement tends to lower a person in the eyes of society, or in the estimation of "right-thinking members of society generally" or in the eyes of the "average right-thinking man" or tends to hold that person up to ridicule, hatred or contempt, or causes the person to be shunned or avoided.
Martin McDonagh claimed that he was defamed in an article published by the Sunday World on September 5, 1999 entitled 'Traveller is new drug king'. The article narrated the background to the seizure by Gardai of illegal drugs worth IR€500,000 in Tubbercurry, Co Sligo a few days previously and identified McDonagh, although it did not name him as such, as the man behind the drug seizure.
McDonagh contended that the article meant that he was a criminal, a drug dealer, a tax evader and a loan shark.
The Sunday World, a newspaper with a distinguished record in crime journalism, claimed qualified privilege and justification, that is, that on the balance of probabilities that article was true. The newspaper led evidence from nine Gardai and a representative of a financial institution. The evidence related principally to the circumstances of the drug seizure, the detention of McDonagh and the admissions he was said to have made in custody. In February 2008, a jury found that McDonagh had been defamed and awarded him €900,000, more than twice the then existing record for defamation awards. This outcome which had a 'chilling effect' on media here, that in itself struck at the heart of the principle of freedom of speech.
Last week, the three-judge Court of Appeal, led by Mr Justice Peter Kelly, granted an appeal against "the entirety of the verdict". Mr Justice Gerard Hogan said: "It is clear the jury's verdict as far as it concerns a drug dealing allegation cannot be allowed to stand.
He said "viewed objectively" the evidence overwhelmingly pointed to the conclusion the plaintiff was indeed "a drug dealer associated with the drug seizure". If the allegation was correct, he said, the newspaper had a constitutional right to publish and that right could not be compromised by a jury verdict "which was, in essence, perverse".
There is a long-established principle that when somebody's life, honour or liberty is jeopardised they should have the right to be judged by their peers. This point was made in the UK parliament in opposition to the first reading of the bill that culminated there in the Defamation Act 2013. That act in effect reversed the presumption in favour of jury trials in defamation cases in the UK, making judge-alone trials the prevailing norm. It is time for politicians here to revisit the civil law of defamation.