The Minister for Justice, Simon Harris, has published draft legislation to reform Ireland’s defamation laws. Any reform of defamation law has to balance the right of citizens to their reputation and good name with the equally important right of freedom of expression. Getting this balance right is not easy. It is perfectly possible that any, however well-intentioned, reform could either weaken people’s rights to their reputation or restrict freedom of speech.
The Department of Justice carried out a lengthy and thorough review of existing defamation law, taking account of submissions from interested parties and from the general public. The heads of the Bill published in March reflect the major findings of the Department of Justice review. It is worth looking at the proposed reforms to see if they are likely to be effective and to identify any possible unintended consequences of changes to the law.
Existing defamation law is only 14 years old. This is not a long time frame in terms of legislation review. The review is taking place now for two reasons. First, the Defamation Act 2009 has a built-in requirement to carry out a review after five years. Second, the media landscape has changed dramatically in the last two decades. Two major changes are the move from accessing news and information from print and broadcasting to digital platforms and the growing awareness of the consequences of largely unregulated social media.
The proposed reform that has garnered the most attention is the abolition of juries in defamation cases. For decades it has been argued that the level of awards in successful defamation cases has been disproportionately high, that Irish awards are the highest in Europe and in many cases are 10 times what is awarded in other comparable countries.
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It has been claimed that leaving juries to determine the level of awards leads to arbitrary awards of damages which threaten the financial survival of publications and, as a consequence, cause unhealthy self-censorship of reporting. The journalistic axiom “if in doubt leave it out” results in a weakening of investigative reporting.
In its important role as the fourth estate, the media holds to account those in power and privilege and exposes wrongdoing and hypocrisy. Any weakening of this role is not in the public interest. There is an assumption in the proposed reform that judges will determine a level of awards proportionate to the loss of reputation and that overall there will be a reduction from the current levels.
If this is the outcome, successful plaintiffs in defamation actions will receive less, hardly a welcome outcome from their perspective. But balanced against this is the likelihood that there will be more and better investigative reporting. Of course only time will tell if judges actually do reduce the level of awards.
In personal injuries cases there is a book of quantum which lays down guidelines as to the appropriate level of awards, for example, the level of compensation for loss of a limb. It is difficult to see how a comparable book of quantum could be developed in defamation. What price is appropriate for a loss of reputation? Should it depend on the circumstances of the person whose reputation has been unfairly traduced?
Many defamation actions are settled in the days before scheduled hearings. It is possible that the levels of settlement may reduce if juries are abolished as there is likely to be an expectation that judges will award lower levels than juries. It will take some time to see if this comes to pass.
Another proposal in the new Bill is an encouragement for people who feel they have been wronged by something published to consider alternatives to defamation actions as a means of seeking redress. Defamation proceedings are universally regarded as expensive, risky and slow. It is often said that the defamation path is only available to people with deep pockets.
The 2009 Act has a measure in it to encourage the use of the services of the Office of the Press Ombudsman and the Press Council.
The Press Council of Ireland has already in place a mediation process which complainants and editors can avail of as an alternative to a formal decision of the Press Ombudsman. The new proposals in the Bill require solicitors to inform their clients of alternative dispute-resolution options before issuing defamation proceedings. It remains to be seen if this is an effective way of resolving matters without recourse to defamation actions.
The new Bill also includes provisions to tackle strategic lawsuits against public participation (Slapps). This is where individuals and organisations use threats of defamation proceedings to discourage legitimate journalistic endeavours. There is a Europe-wide drive to outlaw the use of Slapps. Getting the balance right will not be easy but, as it is based on European Union requirements, there can be reasonable expectation that the measures will be effective.
The increasing access to news publications on digital platforms is addressed in the proposals. At the moment, all print and digital versions of newspapers and magazines that choose to join the Press Council fall within the remit of the council The new Bill clarifies that online-only publications are also within this remit. In practice, this will make little difference as most online-only news publications have already joined the Press Council. What remains unclear is the online service of broadcasters, for example, RTÉ News Online. Currently all radio and television channels are subject to Coimisiún na Meán (the body which replaced the Broadcasting Authority of Ireland last month). But the broadcasters’ digital services are not currently subject to either the coimisiún or the Press Council. If a member of the public feels wronged by something published on a broadcaster’s online service, there is nowhere to make a complaint. This is an anomaly which needs to be addressed, especially as more and more people access news through their mobile phones on broadcasters’ apps.
The elephant in the room behind all of the above considerations is the unregulated nature of social media. In terms of personal abuse, inaccurate information and distortion of truth, social media is by far the biggest culprit. Addressing this and simultaneously defending the right of free speech is particularly difficult. It is also a mammoth task as most social media organisations are international in their structures and difficult to regulate within national boundaries. The regulation of social media will largely fall to the new Coimisiún na Meán and to the new Online Safety Commission.
It is a Herculean task that faces the new bodies, but the new structures and regulations will inevitably impinge upon newspapers as the move towards digital publication increases over the coming years.
Peter Feeney is a former press ombudsman. He was previously head of broadcast compliance at RTÉ