Do we want to hand the democratic duty of holding the powerful to account to social media giants who fail to act responsibly?
‘IF FREEDOM of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter” – George Washington.
Little did the first US president realise his 44th successor would be the one operating the slaughterhouse.
Journalism holds the powerful to account and is fundamental to the proper, transparent functioning of democracy. Defamation laws that stymie fearless investigative journalism and promote selfcensorship are not serving the public interest. Yet increasingly I’m wondering whether my role is that of ‘Censor’, rather than Editor.
Every night, I am trying to strike the balance between ensuring no unreasonable restriction on the public interest and freedom of expression with the right to a good name.
Every night, I sit with a lawyer three feet away from me going through even the most innocuous of stories looking for the slightest lacunae: a photo caption, a jigsaw identification, a word in a sentence.
Every night, I have to make a judgment call on a story that is deemed to be legally sound, on whether it is worth the risk.
Every night, I have to tell a journalist why their hard work will not be published, even though there’s nothing wrong with it.
In the past few weeks, stories of genuine public interest on slum landlords, sexual harassment, and business machinations. That’s the chilling effect in action.
The substantial level of awards in defamation cases is affecting democratic discourse in Ireland and, given the costs involved, many newspapers simply won’t take the risk of publishing an article, no matter how certain of the facts. And with good reason. Since 2010, defamation actions have cost the main newspapers in this country in excess of €30m. Awards made in Ireland are wholly out of kilter with other jurisdictions, including Britain, where effectively a cap of €305,000 exists, though the reality is that awards rarely exceed €110,700, a fraction of the levels awarded here.
Our defamation regime is arguably the most stringent in Europe, and this is a stain on our international reputation and damaging our human rights credentials. An oppressive defamation regime that seeks to continue to impose unsustainable damages on media organisations is undermining journalists in their essential democratic duty to hold to account those in positions of power and influence.
The current review of the Defamation Act must lead to the provision of adequate and effective safeguards against disproportionate awards in defamation actions. Although the Defamation Act
2009 allows judges to give more directions to juries on the assessment of damages, this has brought about only limited changes, and libel awards remain much higher in Ireland than elsewhere in Europe. Working within the confines of Ireland’s draconian defamation regime is a maze-like occupational hazard for our journalists and unduly curtails freedom of expression.
Professor Neville Cox, the dean of graduate studies in Trinity College Dublin, and Eoin McCullough, a senior counsel, in their detailed analysis of Irish defamation law, ‘Defamation: Law and Practice’, suggest that, vis-à-vis other major constitutional democracies, “the protection of free speech under the Irish Constitution is a comparatively weak one” and they point out that there have been “many concerns expressed that, certainly before enactment of the 2009 Act (and quite possibly after it), [that] the law was nonetheless, over-protective of the plaintiff’s right to a good name and underprotective of the defendant’s right to free speech”.
Until the unfair, antidemocratic and damaging under-protection of free speech is meaningfully addressed, Irish defamation law will continue to be unfit for purpose.
In no way am I seeking to excuse any instances of poor journalism or the publication of articles found to be dishonest, inaccurate or cause unnecessary distress or damage to the reputation of an individual or an organisation. However, we must not be deflected from our mission of keeping our readers informed and to provide fearless commentary in the public interest.
It is worth reflecting on words about the nature of freedom by Leonard Hoffmann, the British Lord Justice of Appeal, as cited by Mr Justice Nial Fennelly in a recent Irish Supreme Court judgment. Mr Hoffmann said: “A freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published.”
Freedom of speech
Defamatory statements without justification, of course, require redress. This has to be done in a proportionate manner and in a way that does not fundamentally threaten the right to freedom of speech, the role of the press as a watchdog, and the very viability of media organisations.
NewsBrands Ireland, the representative body for newspapers in this country, wants:
■ the abolition of juries for defamation trials; ■ a limitation on damages; ■ clarity on liability for user-generated comment;
■ and, the introduction of a ‘serious harm’ threshold.
The jury process is seen by publishers as somewhat akin to a game of ‘Russian roulette’. This is a fundamental problem for the justice system and has a chill effect on the freedom of speech which is enshrined in the Constitution of Ireland (Bunreacht na hÉireann) and European Convention on Human Rights.
Cox and McCullough state the role of the jury in assessing damages “renders such awards unpredictable and, in particular, means that awards in one case are not a reliable guide to the probable award in the next”.
It does the justice system no credit that there is no effective scale for damage to a person’s reputation, in comparison to personal injuries. Awards are also unpredictable – which damages trust in the system.
What is required is a maximum cap on the scale of damage awards and, in particular, to examine the defamation regimes in Austria and Malta, which currently provide statutory caps on non-pecuniary damages in defamation cases involving the media.
The playing pitch is not level here either. Social media and online ‘hosting’ sites are effectively given carte blanche while traditional/legacy news publishers are punished for what people say in comments posted on their sites. This again is not helping to support indigenous, public interest journalism.
Revenues and budgets in the newspaper industry in most countries have fallen steeply in the last decade. Money that is
Defamation will change when the social media giants get sued. Their influence is akin to the church of old
spent fighting and settling cases is money that should be spent on quality journalism. If a case runs, it is not uncommon for costs to be in the region of €200,000 or more. This is a cloud that hangs over all interactions with complainants. Our outdated defamation regime ties the hands of the press behind its back. This does not serve democracy well.
Do you really want to hand over the democratic duty of holding the powerful to account to social media giants who have shown scant regard for taking responsibility for the content they circulate, for privacy, bullying, fake news, contempt of court?
Putting my old political hat on for a moment, I think the game will change on defamation when we see the social media giants getting sued.
The influence yielded by the tech sector over Government now is somewhat comparable to that of the Catholic Church in decades gone by with direct access right to the top of government figures and policy making. Newspaper executives and academics arguing for change is very nice, but when a tech CEO makes that call, our Government tends to jump – and jump high. To go back to George Washington, in this country, ironically, those who seek to protect freedom of speech are going “like sheep to the slaughter”.
Edited extract from a speech delivered by the Editor of the Irish
Independent at ‘Freedom of Speech: Where Journalism and the Law Collide’, an event jointly organised by the Trinity Long Room Hub Arts & Humanities Research Institute and Columbia University in New York