home

Media Law Resource Center

Serving the Media Law Community Since 1980

Home

Media Defence in Ireland: An Update

By Mark Harty SC & Karyn Harty*


I.          Introduction

This paper covers the key legal developments affecting publishers in the Republic of Ireland (“Ireland”) since 2007[1].  There have been some significant changes over the past six years, including statutory reform in relation to defamation claims that has partially restated the existing law, added new defences and introduced procedural changes. The legislation has brought welcome changes and is considered here in some detail.

During this period Ireland has also seen the introduction of press regulation in the form of the Press Council of Ireland and the Press Ombudsman.  In the post Leveson context we examine whether this alternative mechanism for resolution of disputes relating to newspaper publications, which the media itself spearheaded, provides a useful template for other jurisdictions.

The top end of jury awards in defamation actions has soared since 2007 despite predictions that the economic downturn would lead to a reduction in libel damages.  We consider the reasons for this increase and the prospects of some of the more extravagant awards being reduced on appeal.

The threatened Privacy Bill 2006 did not ultimately progress beyond a draft, although a number of cases in this area merit consideration.  The Minister for Justice has recently indicated that a review of the Bill is underway, but there is considerable opposition to privacy legislation within the Cabinet and it seems unlikely that the Bill will progress within the lifetime of this Government.  We consider the recent development of the constitutional right to privacy, how the Irish courts are dealing with privacy claims and discuss the increasing use of Data Protection legislation as a strategic measure in litigation.

Bearing in mind the significance of legal costs for publishers, we examine some changes to the assessment of costs in defamation actions and discuss the Legal Services Regulation Bill 2011, currently making progress through Dáil Éireann and driven by the International Monetary Fund in the context of the ‘bail out’[2], which heralds a completely new regime of regulation of the legal profession, including new measures seeking to reduce legal costs.


II.        Defamation

A new statutory framework

The Defamation Act, 2009 applies to publications on or after 1 January 2010 (“The Act”).[3]  The Act was the result of widespread consultation and broadly implemented the recommendations of the Legal Advisory Group on Defamation[4].  That Group’s remit had been to consider international best practice with a view to achieving a “more efficient defamation regime.”  The resulting legislation is an interesting mix of procedural reform, restatement of the law and some imaginative new remedies.  The 1961 Act still applies to any publications before 1 January 2010.  Most of the libel actions that have come on for hearing since then have been heard under the old regime but this year we have begun to see cases being tried under the new regime, so we can give a flavour of the impact of the legislation.

We give below an overview of the key changes and the extent to which they have been tested.

Important procedural changes

The Act abolishes the distinction between libel and slander and substitutes a new ‘tort of defamation,’ actionable without proof of special damage, rendering the four quirky categories of slander action that are actionable per se obsolete once the older cases filter through the system.  A reduced one year limitation period now applies to all defamation claims[5], with discretion to extend the period to no more than two years in the interests of justice.[6]  The date of accrual of the cause of action is the publication date or, in the case of Internet publications, the date on which the defamatory statement is first capable of being viewed or listened to through that medium.

In respect of pre-Act publications, it is still not possible to make a payment into court with a denial of liability in High Court proceedings but this prohibition has been removed in respect of publications on or after 1 January 2010.[7]  There is a new ‘offer to make amends’ procedure, which largely (but not entirely) replicates the corresponding offer of amends provisions in England & Wales.[8]  These changes are welcome and give greater scope to encourage plaintiffs to settle on reasonable terms at an early stage.  There is however still a fair degree of ignorance among plaintiffs’ lawyers about how the offer to make amends operates and its implications, particularly in relation to the partial offer to make amends.  In particular the courts have not yet tested the consequences of a failure to accept an offer to make amends as regards the assessment of damages.

A defendant may now give evidence in mitigation of damages that he or she made or offered to publish an apology as soon as practicable after receiving the complaint.  The Act expressly provides that an apology does not constitute an admission of liability.[9]

There is a new requirement that parties swear verifying affidavits in support of any pleading within 2 months of serving the pleading.[10]  It is a criminal offence to knowingly make a false affidavit with substantial fines and the prospects of a term of imprisonment.  In addition the opposing party is entitled to cross-examine the deponent of any verifying affidavit at the trial of the action in respect of the averments made.  This new provision presents a challenge for publishers as well as for plaintiffs.  Who should swear the verifying affidavit?  It must be someone who can verify the facts pleaded but there may be reluctance to place reporters and editors in a position where there is an entitlement to cross-examine them. The identity of the deponent can be a key strategic decision and it must be taken early on in the proceedings, with a eye to the evidence that the defendant will seek to adduce at trial and any vulnerabilities in respect of witnesses.

Meaning

There is express provision under section 14 of the Act for applications on meaning, which may be brought at any time after proceedings issue, including at the trial of the action.  While it has been possible to bring meaning applications prior to the Act, the Irish courts regard the jury as fundamental to the trial of defamation actions and will err strongly on the side of leaving matters to the trial judge to determine, although there were instances of meaning applications succeeding under the old regime: see McGarth –v- Independent Newspapers.[11] There are three instances of reported meaning applications under the new regime that indicate that the Act may increase the prospects of defendants having meanings struck out at an interlocutory stage.

In Griffin –v- Sunday Newspapers Limited [2011] IEHC 331 the issue was whether an article about an investigation into allegations of moonlighting by the plaintiff (a former soldier) could reasonably bear a meaning that he was guilty of the conduct under investigation.  The President of the High Court granted the defendant’s application on the basis that the article could not reasonably bear the meaning that the plaintiff was guilty of the conduct alleged (Lewis v. Daily Telegraph Ltd. [1964] A.C. 234 applied).

In McCauley –v- Power and Anor [2012] IEHC 174 the President of the High Court, on an application by the defendants to strike out meanings, applied McGarth –v- Independent Newspapers (Ireland) Ltd in ruling that some of the meanings pleaded by the Plaintiff could not be supported by the article the subject matter of the proceedings or in the alternative were not capable of being defamatory. He directed that the pleadings be amended to remove those meanings, but declined to strike out other meanings.  The President was unwilling to accept arguments that he must strike out the claim on the basis of fair comment, as that was a matter that must be left to the trial of the action.

More recently in Travers –v- Sunday Newspapers Limited [2012] IEHC 185 Hedigan J declined to strike out meanings to the effect that the plaintiff was guilty of certain conduct.  In his judgment the judge confirmed that reportage of the fact that a person is under suspicion does not amount to an inference of guilt but said that the editing of the article under suit could arguably contribute to a higher meaning and it would be unfairly prejudicial to the plaintiff to withdraw that meaning from the jury.  The court pointed to the unique role of the jury in determining questions of meaning and noted that it is well established in Irish law that a meaning should not be withdrawn from the jury unless it would be “wholly unreasonable” to leave the question to the jury Quigley –v- Creation Limited [19710 IR 269.  In this case the meaning could reasonably be left to the jury to consider.   This emphasis on the special role of the jury in trying defamation actions is a factor that distinguishes Irish jurisprudence as compared with that in some other common law jurisdictions and is a theme we will return to below.

Multiple publication

Section 11 of the Act confines a plaintiff to a single cause of action in respect of the multiple publication of the same defamatory statement ‘whether contemporaneously or not,’ thus preventing plaintiffs from issuing separate claims in respect of the publication of an article in print and on line.  This is an important change from the perspective of publishers.

Corporate plaintiffs

The Act expressly entitles a corporation to sue for defamation whether or not it has suffered or is likely to suffer financial loss as a result of the defamatory publication.[12]

Defences

In respect of new causes of action the Act abolished all subsisting defences, but they continue to subsist in respect of pre-Act publications.

Truth

Justification is restated as the ‘defence of truth,’ that is, that the statement was true in all material respects.  This should allow some scope for defendants to avoid liability in respect of trivial details the truth of which cannot be proved.  The formula “true in substance and in fact” continues to apply in cases involving statements published prior to 1 January 2010.

Absolute and qualified privilege

The Act defines various publications over which absolute privilege can be asserted, including a fair and accurate report of proceedings in a court of law, proceedings in parliament (including the European Parliament) and reports of tribunals and commissions of investigation.[13]  Qualified privilege has been updated, with the traditional duty/interest test enshrined in section 18 of the Act and a new list of publications privileged without explanation or contradiction[14] and those privileged subject to explanation or contradiction[15].  By way of example, the former category includes determinations of the Press Ombudsman and statements made during the investigation of a complaint to the Press Ombudsman; the latter includes a fair and accurate report of a public meeting held for a lawful purpose and for the discussion of any matter of public concern, or of any related press conference.  The defence fails here if the defendant was asked to publish in the same medium a reasonable statement of explanation or correction and failed to do so.

Honest opinion

The defence of fair comment is now restated as ‘honest opinion’[16].  It is for the defendant to prove that in respect of a statement consisting of an opinion, honestly held, related to a matter of public interest and was based on facts the truth of which is proved.  There is a saver where only some of the facts are proved to be true, provided that the opinion was honestly held with regard to those facts.  This is a welcome change but it has been complicated unecessarily in our view by the inclusion of some rather clumsily drafted provisions relating to the circumstances in which the defence will fail and how the court should tackle distinguishing between fact and opinion.

The Irish courts have always placed the bar very high and defendants have generally only succeeded in relying on fair comment when also successfully relying on justification.  There are numerous examples of cases where defendants fought cases on fair comment but were found to have failed on accuracy grounds.  It is also difficult for juries to understand that comment need not, in fact, be fair in common parlance for a defendant to succeed.

A case which acutely illustrates the difficulties presented by the traditional fair comment defence has arisen in the week of writing this paper.  In McAuley –v- Times Newspapers Limited[17] the plaintiff sued in respect of a comment piece in the Sunday Times.  The plaintiff had sued a maternity hospital and midwife for breach of contract arising from a request that he desist from filming in the operating theatre while the midwife sought to clear his new born daughter’s airways following an emergency Caesarian section.   The plaintiff claimed that the hospital and midwife had breached an agreement that he could film the birth of his child.  The plaintiff had, unsurprisingly, lost that court case.  The Sunday Times published a comment piece critical of the plaintiff’s decision to sue and raising issues in colourful terms around the role of men in the labour ward.  The plaintiff claimed that the Sunday Times article meant that he was reckless as to the wellbeing of his wife and daughter.   Fair comment was central to the case.  Following a four day trial the jury retired to consider their verdict and returned a number of times seeking clarification on the defence of fair comment.  For example, after several hours of deliberation the jury asked whether in applying their common sense, as they had been directed to do, they must do so within the legal principles.  The jury resumed its deliberations the fifth day of the trial and informed the judge that they could not reach agreement on the question of fair comment.  Having been re-directed on fair comment and charged on majority voting, the jury could not reach agreement.  The newspaper sought to have the jury re-charged on fair comment, as it appeared that the confusion must stem from a misunderstanding of the defence.  The judge refused to do so, discharged the jury and directed a retrial.

The limited experience of the new defence of honest opinion does not bode much better for defendants.  In February 2013, in O’Brien –v- Associated Newspapers the plaintiff, a wealthy businessman, sued in respect of an editorial concerning the plaintiff’s conduct during the earthquake in Haiti, where he has significant business interests.  The editorial was critical of the plaintiff giving television interviews in Haiti in the immediate aftermath of the earthquake and alleged that he was seeking publicity for his charity work at a time when a tribunal was due to publish findings regarding his alleged involvement in payments to politicians.  The newspaper sought to rely on the new defence of honest opinion. The jury found against the newspaper, not on the basis that facts were not proved, or that the opinion was not honestly held, but on the basis that the subject matter was not a matter of public interest.  The jury awarded the plaintiff €150,000 in damages.  The newspaper has since indicated that it will not appeal the verdict.

Consent

Section 25 provides for a new statutory defence of consent to publication of the statement in respect of which the action was brought.  The defendant still has to prove that the consent was to the words published.  Thus the defendant must show that the defamatory statement was communicated to the plaintiff in its precise terms prior to publication and the plaintiff agreed to its publication.   This defence brings a new focus to the importance of retaining journalists’ notes, recordings and email communications for at least a year after publication and certainly in the event of a threat of litigation.

Fair and reasonable publication

The most significant change is the introduction of a new Reynolds style defence of fair and reasonable publication[18].

The context in which this section was enacted is of worth noting.  In June 2007 in Leech –v- Independent Newspapers[19] the High Court confirmed that a defendant could rely on a ‘responsible journalism’ defence, but that this was within the traditional defence of qualified privilege and not a stand alone defence.  This was a significant ruling.  The court ruled that to succeed the defendant must prove, by calling evidence, that the publication was on a matter of public interest and that responsible and fair steps had been taken prior to publication.  In Leech, having cross-examined the plaintiff at length on the basis of a qualified privilege defence, the newspaper called no evidence.  The court withheld the defence from the jury on the basis that the newspaper could not rely on responsible journalism if it was not calling any evidence.  In so ruling, Charleton J said the malice test was ‘probably’ replaced by a test of professional conduct by the journalist, but evidence of that conduct was a prerequisite to the defence being put to the jury.

Some felt that this fairly straightforward formulation placed the bar too high for publishers and one can see in the provisions of section 26, which followed extensive consultation, a dilution of the requirement that the journalism be “responsible” in the adoption of a more forgiving ‘fair and reasonable’ formula.  It remains to be seen to what extent juries will struggle with the more amorphous concepts of fairness and reasonableness, and the experience in respect of fair comment suggests that achieving a unanimous or acceptable majority verdict on a fair and reasonable defence may prove challenging.

In order to rely successfully on the defence of fair and reasonable publication the defendant must prove that the statement was published in good faith “in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit”; that in all the circumstances of the case the publication did not exceed that which was reasonably sufficient and that in all the circumstances of the case it was fair and reasonable to publish the statement.  Section 26(2) sets out criteria largely mirroring Lord Nicholls’s criteria to which the court can have regard in determining whether it was fair and reasonable to publish the statement, to which have been added whether the defendant adhered to the code of standards of the Press Council (see below).  Under section 26(3), the fact that a plaintiff failed or refused to respond to attempts to elicit his or her version of events does not constitute consent to publication or entitle the court to draw any inference.

The Act expressly provides that it is for the jury (and not the trial judge) to determine whether the publication was fair and reasonable[20].  This involves the jury adjudicating upon whether the statement was on a subject of public interest the discussion of which was for the public benefit, whether the manner and extent of the publication did not exceed what was reasonably sufficient and to apply the reasonableness criteria.  Bearing in mind the experience in our neighbouring jurisdiction, where increasingly the task of assessing defences like Reynolds privilege is being left to the trial judge rather than a jury, media organisations might question the sanity of this provision.  The explanation lies in a significant body of Irish jurisprudence that gives considerable emphasis to the unique role of the jury in defamation actions and a desire on the part of the legislature that the jury remain central to the adjudication of such cases.  The decision to entrust the assessment of whether a publication is fair and reasonable with juries will undoubtedly lengthen defamation actions and increase the risk of hung juries and retrials.

UK practitioners may find it surprising that the High Court has held that a defendant need not give particulars of the defence of fair and reasonable publication. A bald plea that the defendant is relying on the defence will suffice.[21]

Innocent publication

There is a statutory defence of innocent publication under section 27, protecting booksellers, printers and those involved in the distribution of material, provided that they can show that they were not the author, editor or publisher of the defamatory statement.  This finally lays to rest the spectre of bookshops being sued or bound by gagging letters in respect of the content of books on their shelves.

New remedies

The legislature has sought to move away from the traditional focus on financial compensation for defamation, so that under Part 4 of the Act an imaginative selection of remedies is now available to plaintiffs in respect of publications on or after 1 January 2010.  The Act enables a court to make orders requiring the publication of a correction, prohibiting the publication of a defamatory statement or giving judgment summarily.  There is also a novel declaratory mechanism, which enables a plaintiff who is not interested in damages to obtain an order declaring that he or she has been defamed.

Declaratory orders, correction orders, and summary dismissal

A plaintiff can now seek an order in the Circuit Court[22] confirming that a statement was false and defamatory of him or her (or, indeed, ‘it’ in the case of a corporate plaintiff)[23]. In order to make a declaratory order the Court must be satisfied that the statement is defamatory of the plaintiff and that the defendant has no defence to the application, and that the plaintiff asked for the statement to be corrected and the defendant refused or did so but refused to give the apology, correction or retraction the same prominence as the original statement.  There is no obligation on the applicant to prove that the statement was false but the applicant is precluded from bringing any other proceedings in relation to the defamatory statement and cannot recover damages in respect of it.

It can be of considerable strategic advantage to a plaintiff to seek a declaratory order, particularly to a corporate entity or high profile individual who is focused on reputation management rather than financial compensation, or does not want to incur the risks of a High Court action.  A declaratory application, brought in the right case can achieve a swift public confirmation of the falsity of a defamatory statement.

The Court can require a defendant to publish a correction and can stipulate the form, content, extent and manner of the publication[24].  Editors might well baulk at the prospect of a court, or indeed a jury, deciding how and where a correction must be published and what it should say.  See for example Mellon –v- Associated Newspapers, where the Circuit Court concluded that the newspaper had no defence to the claim and granted a declaratory order confirming that the plaintiff had been defamed and a correction order requiring the publication of an apology.[25]

The Court can also now grant summary relief to a plaintiff under section 34, where the defendant has no defence that is reasonably likely to succeed.  These orders can be sought together by way of notice of motion or, alternatively, (save for the declaratory order) can be sought at trial.

The combination of these various orders was tested in Lowry –v- Smyth [2012] IEHC 22, in which a former government minister unsuccessfully sought a declaratory order, a correction order and a prohibition order in the Circuit Court in respect of allegations made on a television broadcast to the effect that he was corrupt.  On appeal to the High Court the President upheld the Circuit Court ruling and noted that the defendant, a journalist, had put forward defences of truth and honest opinion, as well as pleading fair and reasonable publication and had a good arguable case on the facts before him.  The plaintiff correctly contended that the defendant could not rely on findings of fact by a tribunal of inquiry as evidence in other proceedings but the Court found that of course there were other avenues open to the defendant to prove the same matters.

The result of the decision in Lowry v Smyth is that early enthusiasm for applications for declaratory orders has waned.  The High Court has no original jurisdiction in respect of declaratory applications but its decision is binding on the lower courts. There are however a number of serious problems with the decision. First, the court appears to have made no distinction between the test for declaratory relief and the test for summary judgment. It would appear from the face of the decision that the plaintiff’s legal team accepted that the same test applied to both sections.  The President of the High Court then applied the usual tests for granting summary judgment being the absence of an arguable defence. It is undoubtedly the case that this is the test which should apply in granting summary relief under the Act.  The provisions relating to declaratory relief under Section 28 appear however to envisage a very different approach. The court was not asked to consider the section in detail nor to assess the wide powers granted to the lower court to fix the mode of trial in respect of declaratory relief. A more detailed consideration of declaratory relief could lead to some radically different conclusions.   In particular it is clear from the Act that the section provides for case management of the declaratory procedure, including that the court may direct the mode of trial.  This indciates that the procedure is designed to provide for a fast-track hearing and not just summary disposal.

As far as damages are concerned, the Act provides that juries shall be given directions on damages and that the parties may make submissions to the court in relation to damages[26].  The Act does not provide that reference to specific figures may be made, nor is there any reference to drawing comparisons with awards in other cases.  There is express provision for the award of aggravated and punitive damages.[27]  We consider some recent jury awards below.

Prohibition Orders

Section 33 expressly gives the court power to grant injunctive relief in respect of defamatory statements if it is of the opinion (a) “the statement is defamatory” and (b) “the defendant has no defence to the action that is reasonably likely to succeed. The orders can be interim, interlocutory or permanent. This marks a considerable shift from the traditional jurisprudence in relation to prior restraint in defamation actions.  While the courts would grant injunctive relief in relation to ongoing Internet publication it was rare to see courts restraining publication of as yet unpublished statements under the old regime.

See Tansey v Gill [2012] IEFC 42: orders restraining ongoing Internet publication pursuant to section 33.  The courts have granted prohibition orders in conjunction with declaratory orders. There appear as yet to have been no orders granted for prohibition of a defamatory statement prior to publication and as such the interact between the traditional rules on prior restraint and the clear powers to prevent publication under the Act have yet to be tested.  Insofar as injunctions have been granted at an interlocutory or interim basis they seem for the most part to relate to issues of privacy and breach of confidentiality rather than defamation.

One key factor to note about section 33 is that it expressly excludes the granting of the dreaded super-injuntion.  The section prohibits any term in the order which might restrict the reporting of the making of the order.  In McKeogh –v- John Doe [2012] IEHC 95 the court refused an injunction restraining the publication of the plaintiff’s name in the press.  In so doing the court considered a long strand of Irish case law which emphasised the importance of justice being done in public.  Peart J rather astutely pointed out in his judgment: “there is something counter-intuitive about the idea that a person who seeks reliefs from the Court aimed at vindicating his good name, by way of damages or otherwise, would seek to do so anonymously.”

III.       Damages

Damages in defamation actions have increased substantially since 2007 and the significant delays in getting appeals on for hearing have resulted in very high awards remaining in place for several years without the benefit of being addressed by the Supreme Court.

In 2007 the highest libel award stood at €750,000, following the retrial of an action which the Supreme Court had sent back to the High Court, having set aside the original jury award of IR£250,000 as disproportionately high.[28]  The case subsequently settled on confidential terms.

In February 2008 a jury awarded a traveller €900,000 in libel damages in respect of an allegation that he was a ‘drug king’[29].  The jury found that the defendant had proved that the plaintiff was a tax evader and a criminal but had not proved that he was a drug dealer.  In June 2009 a jury awarded €1.872 million in damages to a married woman falsely alleged to have had an affair with a government minister over a series of ten articles published by the Evening Herald newspaper.[30]   In November 2010 in Kinsella –v- Kernmare Resources Limited these awards were eclipsed by an award of €10 million, made up of €9 million in general damages and €1 million in aggravated damages, made by a jury to a businessman who had sued his former employer in respect of a press release that the jury found meant that he had made improper sexual advances to a female colleague.  The plaintiff had been on a business trip in Africa with other colleagues when he was found naked on three occasions at the door of a room occupied by a female colleague.  An internal investigation found that he had been sleepwalking but a press release issued following the investigation inferred inappropriate conduct.  The jury award was the highest amount awarded to a plaintiff in a defamation action in the history of the State.

Each of the above actions is the subject of an appeal but the appeals have yet to come on for hearing.  Delays in the Supreme Court have reached record proportions, as evidenced by the delays of 7 and 6 years respectively in the McDonagh and Leech actions.  The Supreme Court has an extraordinary caseload and deals with significantly more cases on an annual basis than its counterparts in other common law jurisdictions.  In May 2013 the Minister for Justice announced that a referendum will be held in September 2013 to allow for the amendment of the Irish constitution to permit the creation of a Court of Appeal, which it is intended will deal with the majority of appeals and leave only cases of fundamental public importance to be adjudicated upon by the Supreme Court.  It is hoped that the creation of a Court of Appeal will substantially ease the delays in respect of appeals from jury verdicts.

IV.       Press Regulation

The Press Council of Ireland and the office of the Press Ombudsman have been in operation since 1 January 2008.  Prior to their establishment there was no press regulation in Ireland.

Newspaper coverage of the death of a disgraced politician was instrumental in the moves to introduce press regulation.  Liam Lawlor had been the subject of adverse findings by the Mahon Tribunal, which was inquiring into allegations of planning corruption, and had been jailed for contempt of court for failing to co-operate with the tribunal.  In October 2005 Lawlor was killed when a car in which he was travelling was involved in a collision in Moscow.  The Sunday Independent and other newspapers carried false reports alleging that another passenger in the car was a prostitute.  In fact, the woman was a translator who was accompanying Lawlor on a business trip and she subsequently received substantial libel damages from a number of newspapers.  There was a massive public outcry at the decision of the Sunday Independent to carry such a story in the immediate aftermath of the man’s death.  Following criticism from the National Union of Journalists, the editor of the Sunday Independent was forced to issue an apology to Lawlor’s family and remove the story from its website.

The absence of any body to oversee standards in the Irish press was seen as instrumental in the Lawlor debacle and the media responded to pressures to introduce press regulation by forming the Press Council and the office of the Press Ombsudman, funded by media organisations, and developed a Code of Practice for Newspapers and Magazines.   Both offices were established under the Companies Acts 1993 to 2006.

The Press Council comprises 6 independent appointees and 6 members drawn from the press industry, plus the Chairman. The current chairman is Dáithí O’Ceallaigh, who was appointed in August 2010.  The Press Ombudsman is Professor John Horgan.

Complaints can be made to the Press Ombudsman in respect of Irish newspapers only in circumstances where the complainant has first tried to resolve the issue with the newspaper or magazine concerned.  The Press Ombudsman then seeks to reach a resolution by process of concilliation and only where that proves unsuccessful does the Ombudsman make a decision.   Where the Ombudsman finds in favour of a complainant, by reference to the Code of Practice, the publication must publish the finding.  Details of all findings are published on www.presscouncil.ie.  Appeals can be made to the Press Council.

Membership of the Press Council and adherence to its Code of Practice are relevant to defences under the Defamation Act, 2009.

In the past 5 years the office has dealt with around 2,000 complaints, according to a statement issued by the chairman of the Press Council in February 2013.  Within the media the office is regarded as being very effective and editors tend to regard the risk of having to publish a negative finding as a good incentive to focus reporters on accuracy and fairness.

The system was the subject of some criticism by Denis O’Brien, an experienced libel litigant, in the course of evidence he gave in a trial in February 2013 (he subsequently received €150,000 in damages in respect of a false allegation that he had exploited the Haitian earthquake for public relations purposes).  Mr O’Brien described the Press Council as “toothless,’ causing Mr O’Ceallaigh to issue a statement defending the Press Council’s record of resolving complaints.  Undoubtedly it can be difficult for plaintiffs to justify a decision to sue for damages where they could have pursued a complaint to the Ombudsman.

A defendant wishing to rely on the new defence of fair and reasonable publication can give evidence that the publication complied with the Press Council Code of Practice and the jury can have regard to this in assessing whether the publication was fair and reasonable.

V.        Privacy

In the period in which defamation reform was being debated prior to the Act there was a considerable amount of debate concerning potential legislation for the law of privacy. This was being mooted as a quid pro quo for a more defence oriented law of defamation.  As matters transpired the proposed legislation, which was the subject of heavy criticism in the press, was shelved.  The Minister for Justice has recently said he is conducting a review of the Bill but there are strong indications of opposition to the Bill in the cabinet and, while it forms part of the programme for government, it seems unlikely that it will be progressed before the next election.

The courts have long recognized a constitutional right to privacy enforceable by citizens against the state and which could result in a claim for damages. A small number of cases had decided that the constitutional right to privacy could also give rise to injunctive relief against individuals but, prior to 2008, there was no case awarding damages to an individual against another individual for breach of a constitutional right.

The case of Herrity –v-Associated Newspapers [2009] 1 IR 316  marked a significant advance in the legal status of privacy rights in Ireland, as it was the first case in which a court awarded damages against a non-state defendant for breach of privacy.  The facts of the case are perhaps most easily summarised by reference to the highly effective headlines of the relevant articles: "Husband accuses priest of dirty dealing … with his wife.” "Wife's nights on the town with her OTHER 'wild' priest.” "Phone lover priest quits.”  In short a very Irish tale of adultery, priests, jealous husbands and phone tapping, involving the publication over a number of editions of the contents of phone conversations involving the plaintiff.   She issued proceedings against the newspaper seeking damages for breach of her right to privacy.  Ms Justice Dunne hearing the case in the High Court reviewed the pre-existing law and found that under the Irish Constitution there is a right to privacy enforceable against third parties and actionable in damages.  She found that the right was not unqualified and has to be balanced as against competing constitutional rights including freedom of expression.  In balancing these rights the court must have regard to public interest as a basis for free expression and to the nature of the information and the manner in which it was obtained.   Because the information was obtained pursuant to an illegal phone-tap, the court found that the plaintiff’s right to privacy had been unlawfully breached and awarded damages of €90,000, made up of €60,000 in general damages and €30,000 aggravated damages.  The level of damages awarded was in line with awards made in privacy cases against the State.

In Hickey –v- Sunday Newspapers Ltd [2011] 1 IR 228 the President of the High Court considered the parameters of the right to privacy.   In that case the plaintiffs sought damages for defamation and breach of privacy in respect of newspaper coverage of Ms Hickey’s relationship with a public figure and photographs taken of her and the child while registering the birth of their child.   The President of the High Court found that the right to privacy was less easily established where one was performing a public function (registering a birth).   He went on to distinguish Von Hannover v. Germany [2004] ECHR 294 and Campbell v MGN [2004] 2 AC 247 and applied the reasoning of a New Zealand case, Hosking v Runting [2005] 1 NZLR 1 to dismiss the plaintiffs’ claim on the basis inter alia that the photograph was taken in a public place, performing a public function, there was no risk to Ms Hickey or the child and there was no evidence of a campaign of surveillance.  The judge also relied on the fact that some of the material was in the public domain and that Ms Hickey had courted publicity about her private life.

In Murray v Newsgroup Newspapers Ltd [2011] 2 IR 156 the court was concerned with an interlocutory injunction to restrain newspapers from publishing information that would identify the current address and appearance of a convicted serial sex-offender following his release from prison. The court reviewed the law in respect of publishing injunctions and the question of balancing the right to privacy with the right of free expression. A considerable amount of weight was placed on European jurisprudence on prior restraint. The court refused the injunction, effectively on the basis that the plaintiff had not adduced any evidence to prove that he no longer posed a threat to the community at large or that he himself was at personal risk by reason of the publication of his details.

In coming to its decision in Murray the court placed a lot of emphasis on distinguishing the facts from a similar Northern Irish case of Callaghan –v-Independent News and Media Ltd [2008] 1 NIQB 15.  In that case the court had clear evidence of the low level of risk posed by the release of a convicted sex offender and of threats to his life.   In that case the Northern Irish High Court had granted an injunction restraining the publication of photographs that might identify the plaintiff, but in Murray there was insufficient evidence before the court to justify the restraining orders sought.

In summary it appears that while the courts have clearly established an actionable right to privacy along similar lines to Von Hannover they have been slow to rely on it in order to grant injunctive relief and similarly appear to consider damages an appropriate remedy.

VI.       Journalistic Privilege

At the time of writing of the last update on Publication in Ireland journalistic privilege was at best a grey area under Irish Law.   That position has altered substantially with jurisprudence developed with express reference to Article 10 of the European Convention on Human Rights.

The Supreme Court came to consider the question of journalistic privilege in Mahon v Keena [2010] 1 IR 336.   The case concerned the publication by the Irish Times newspaper of the contents of confidential documentation, which had been leaked to it in contravention of an express statutory prohibition.  The Supreme Court held that a statutory tribunal was not entitled to compel the newspaper to reveal the identity of its sources.  The court relied on Goodwin v United Kingdom [1966] 22 E.H.R.R. 12, where the ECHR had found that the protection of journalistic sources was “one of the basic conditions for press freedom.” The Supreme Court in Mahon held that the principle of journalistic privilege applied in Irish Law but that the right is not absolute.

“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 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.”

The principle established in Mahon was tested in Walsh –v- Newsgroup Newspapers [2012] IEHC 353.   In that case the plaintiff was a well known celebrity who had been the subject of a contrived allegation of assault, which the newspaper had reported.  O’Neill J directed the defendant newspaper to make discovery of documentation arising from correspondence with its source, the identity of which was known.   The court held that journalistic privilege could not apply where the leaking of the information by the police to the newspaper was a criminal offence but that the defendant was not obliged to disclose information which might lead to the identification of any source other than the named source and the police.

The High Court recently considered journalistic privilege in Cornec –v-Morrice [2012] IEHC 376.  The facts of the case are complex to say the least but are summarised in the judgment of the High Court as follows:

“it might seem surprising that litigation presently pending in the District Court of Denver, Colorado ("the Colorado litigation") concerning a disputed share purchase contract of the shares of an oil company registered in St. Kitts and Nevis and which is currently operating in Belize should give rise to an application in this jurisdiction for evidence to be taken on commission of an investigative journalist and a former theologian who specialises in the investigation of cults.”

The Judge was asked to consider whether the journalist ought to be required to give evidence both as to the identity of her sources and the information gleaned from them.  It had been argued before the court that it was only information protecting the identity of sources which was governed by journalistic privilege.  This was rejected by the court, which held that in respect of requiring a journalist to divulge information the court should engage in a weighing up of the competing interests.  The court found that there was a strong interest in the journalist investigating and publishing the material and that this was not outweighed by the interest of those seeking the information. In particular the court found that the information would at best be corroborative and not probative in itself.  Secondly as the interest being relied upon for disclosure was a purely commercial one, the public interest in disclosure was not as compelling as in cases of criminal guilt or innocence. The court gave a strong endorsement of the principles of journalist privilege which are worth quoting in full.

“It cannot be said that there is any ex ante distinction between the protection of the source on the one hand and the contents of what the source disclosed on the other.  In some cases - perhaps a majority - the source will wish to have their identity protected.  In other instances, the source will wish to have the contents of what they actually said protected, even if they been identified as a source for the article.  In both cases, the public interest in protecting the journalist from compelled disclosure is very high, since the exploration of the contents of any discussions with the source also has the ability significantly to hamper the exercise of freedom by the journalist in question.”

The final finding of the court in relation to this issue was that the case for requiring the journalist to reveal her sources was not “convincingly established” in line with ECHR jurisprudence.   The court then went on to consider the situation in relation to the blogger and held that a person who blogs can consitute an “organ of public opinion” just as readily as the broadcast media and the press.  Exactly the same principles applied to the blogger as applied to traditional journalists and he was entitled to rely on journalistic privilege.

While the courts have shown considerable willingness to allow the invocation of journalist privilege they have on the other hand shown an equal willingness to accede to applications to remove the cloak of anonymity of online posters and bloggers.   In applications in cases as diverse as Easyjet Plc v Model Communications and Irish Red Cross –v Google the court has readily required Internet hosts and marketing companies to make full disclosure of the identity of their users and clients.   In that regard the courts now regularly grant Norwich Pharmacal relief to plaintiffs requiring disclosure, and the granting of disclosure orders has been the subject of reasoned decisions in cases such as EMI Records (Ireland) Limited v Eircom Limited [2005] 4 IR 148.  While that case does not in itself deal with publishing the reasoning has been applied in a number of cases concerning anonymous Internet publication. In effect, while the courts will protect the sources of the publisher of material in a wide range of circumstances the courts will not protect the identity of the publisher himself or herself, as such protection would rob a wronged party of any possible recourse to law.

VII.     Costs

The easiest way for a small jurisdiction like Ireland to make headlines in this day and age is for it to approach financial Armageddon.  As such few will be unaware of the economic woes which have beset the country since 2008.  Many will also be familiar with the fact that the cure for these woes has, for the most part, been taken by the Irish  body-politic with a fair degree of stoicism. The Government has sought throughout this period to re-adjust the cost base of almost all parts of the economy and the legal services industry is no different in that regard.  In addition the International Monetary Fund as part of the conditions of the financial bail out, from which Ireland is expected to emerge within months, has placed reform of the legal system high on the list of priority action to be taken.

The Legal Services Regulation Bill proposes radical reform of the manner in which legal services are supplied and the basis upon which they are charged for.  In brief it is proposed, inter alia, to review the status of the split legal professions, permit multi-disciplinary partnerships and introduce a new regulatory body to regulate the entire profession.  In addition new mechanisms are to be put in place for billing clients and for the measurement of costs in legal proceedings.

In the meantime the Government has appointed two new “Taxing Masters” for assessing costs in court proceedings.   This is a government appointed position and the two Taxing Masters assess what legal costs are due in the event of parties being unable to come to agreement.  While this has been the traditional mechanism for assessing proper costs the new appointments have brought something of a wind of change to the position.  Of direct relevance to publishers, one of the new taxing masters has rejected arguments for the traditional uplift in respect of plaintiff costs  in defamation actions and has indicated that significant evidence will be required to show that high instruction or brief fees are merited.   There is now much greater focus on the work done.  Those experienced in litigating in Ireland will be pleased to see the demise of the 2/3 rule, whereby junior counsel’s fee was marked at 2/3 of senior counsel’s fees no matter what work was done.

It remains the case however that barristers charge by way of global brief fees and it is very rare for counsel’s fees to be marked by reference to hourly rates.  Solicitors tend still to do very little advocacy in the High and Supreme Courts, although they have rights of audience in both.  Their fees are governed by hourly rates and increasingly by fixed fee agreements, although these tend to be unsuitable for litigation work.  We can expect to see major changes in the assessment of legal costs over the next few years and there should be an improvement in transparency, at least, with the changes that are proposed.

VIII.    Conclusion

A lot done, more to do!

 



* Mark Harty SC is a barrister in Dublin. Karyn Harty is a partner at McCann FitzGerald in Dublin.

[1] See ‘Publishing in Ireland’ by Karyn Harty, Conference Papers MLRC September 2007.  Note that Northern Ireland is a separate legal jurisdiction within the United Kingdom, with a hybrid legal system comprising a mixture of English legislation and statutory instruments specific to Northern Ireland.

[2] Dáil Éireann is Ireland’s lower house of parliament

[3] The Defamation Act, 1961 still applies to publications prior to 1 January 2010

[4] Report of the Legal Advisory Group on Defamation, March 2003

[5] In respect of pre-Act publications the limitation periods remain 6 years for libel and 3 years for slander.

[6] Section 38

[7] Section 29

[8] Sections 22 and 23

[9] Section 24

[10] Section 8

[11] [2004] IEHC 67; meanings struck out as not capable of bearing a defamatory meaning having regard to the article as a whole

[12] Section 12

[13] Section 17

[14] Schedule 1 Part 1

[15] Schedule 1 Part 2

[16] Sections 20 and 21

[17] July 2013

[18] Section 26

[19] [2007] IEHC 223

[20] Section 26(4)

[21] Griffin –v- Sunday Newspapers Limited [2012] IEHC 132

[22] The majority of defamation actions are heard in the High Court; costs are significantly lower in the Circuit Court, where the maximum jurisdiction for defamation claims is €50,000.

[23] Section 28

[24] Section 30

[25] Reported in the Irish Times, 11 February 2011

[26] Section 31

[27] Section 32

[28] O’Brien –v- MGN Limited [2000] IESC 70

[29] McDonagh –v- Sunday Newspapers Limited

[30] Leech –v- Independent Newspapers (Ireland) Limited

 
Joomla 1.5 Templates from JoomlaShack.com