OPINION: Reform of defamation legislation

WHILE progress on the review of the Defamation Act 2009 by the Department of Justice is being made, it is not nearly fast enough and needs to be stepped up considerably. The Act is subject to five-yearly reviews, with the first having been due in 2014, yet this still hasn’t been completed.

That review only began in November 2016 after intense lobbying by the newspaper industry and other interested parties affected by a ‘compo culture’ that is leading to excessively-high awards and resultant increases in insurance premiums, threatening to put some publishers out of business.

As outlined by Local Ireland, the organisation representing regional newspapers, including The Southern Star, earlier this year on World Press Freedom Day, good defamation policy is categorically not about giving journalists a free rein to write what they like. It is about setting the right balance in order to protect people’s reputations and the need to defend and promote freedom of expression and the media’s ability to freely report on matters in the public interest.

The Press Council is available to sort out disputes between people over mistakes made by publishers or possible defamation. It acts as an honest broker between the parties and avoids the huge costs that are attached to going down the legal route. Taking the latter course can sometimes lead to libel insurers settling cases to avoid the risks of litigation, especially given the high level of awards that tend to be made by the courts in Ireland – well above the level in other jurisdictions.

Now, three years later, the review is still going on and, earlier this month, Minister for Justice and Equality, Charlie Flanagan, organised a symposium in Dublin to launch the final phase of reflection to try to reach conclusions on what changes to the Defamation Act 2009 should be recommended. According to the Minister, it is expected that a report on the review, with options for reform, will be submitted to the him before the end of March with a view to legislative proposals being brought to government soon after that – a full six years after this report was originally due.

The encouraging thing is that the reflections made by the symposium seem to be getting to the nub of the subject, trying – as the Minister said – to balance three different rights which are protected under both our Constitution and the European Convention on Human Rights – the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice.

It considered how best to reform Irish defamation in order to avoid what was described as the ‘chilling’ effects of high and unpredictable awards and legal costs on public interest media reporting; to ensure effective and proportionate protection against unfair damage to a person’s good name; develop the use of alternative dispute resolution processes and solutions, and avoid defamation as a ‘rich man’s law’ – albeit the Press Council is already very proactive in this regard – and also ways to tackle effectively the new and specific problems raised by online defamation.

Also emphasised was the value of promoting the importance of truth in public comment and debate, as far as that is reasonably possible, while also recognising and remembering the vital role in a democracy played by an independent media. These are key concerns of the media generally, who look forward to the Department’s informed recommendations next March with a view towards amending the Defamation Act 2009 to make it fairer all round.

However, it is not only the media that is affected by defamation legislation and ISME, which represents small and medium enterprises, says its members are suffering as much if not more, because defamation actions against small businesses are rampant. It claims that this has become a specialist area of litigation for some solicitors who are advertising their services to clients ‘wrongly accused’ of various misdemeanours in shops.

ISME maintains that defamation actions are now so frequent in the retail sector that many small shop owners are told to let thieves steal goods and bar them from returning, as the theft will usually cost far less than the €7,000 to €10,000 settlement which typically follows asking someone to open their shopping bag or to show a sales receipt. This is a crazy situation and also needs addressing in the current review of the Defamation Act.