MOST of our readers are probably unaware of the serious situation that newspapers in particular face because of a government failure to complete a long-overdue review of the current Defamation Act 2009, which was due to be done after five years, i.e. 2014. Here we are a further five years on and still no review. All the while, our industry is worried about the soaring costs of insurance due to the size of awards paid out as a result of defamation claims – increased premia that threaten the very existence of some smaller publishers.
Nobody in the industry is denying the right of anyone to their legal recourse if they are defamed and to have their good name vindicated, but – as in other areas – it is the disproportionate size of the awards made in Irish courts that is proving the problem, as it is driving libel insurance costs through the roof. In most other countries, awards made tend to be in the tens of thousands, whereas here it could be hundreds of thousands and sometimes into seven figures.
And, these are the ones that go through the courts. Insurance companies sometimes make settlements out of court for fear of incurring even greater legal costs if they contest cases – even ones they have a reasonable chance of winning. That is how fraught the situation is.
The insidious compo culture sees the exploitation of our weak defamation laws by some who see publishers as an easy target, given that claimants here – unlike in the United Kingdom – do not have to prove serious harm to their reputation. They tend to go straight for the jugular, pursuing monetary claims, sometimes egged on by legal advisers, in preference to engaging with the offices of the Press Ombudsman and the Press Council.
Of course, it is their right to do this, but most cases of alleged defamation and mistakes that sometimes occur can be settled amicably out of court with the Press Ombudsman acting as the honest broker, saving time and money for both parties. It that does not work, then the legal route is still open, but should only be used as a last resort.
No publisher in their right mind deliberately sets out to defame people. It is absolutely wrong to do so and, if it does happen, an apology and proportionate compensation should be given to the victim.
However, Ireland’s defamation laws are among the most restrictive in Europe and throughout the English-speaking world. They have an inhibiting effect on the media’s ability to carry out its role as the public’s watchdog and to reveal matters of important public interest.
Reform is long overdue. The Defamation Act 2009 was due for review by the Department of Justice in 2014, however this review didn’t commence until November 2016 and, two and a half years later, the results of the review have not been published, leaving the newspaper industry still badly exposed.
The tension between politics and journalism is an essential element of the democratic system and even more so now with some news and valid comment being dismissed as fake by certain idiots.