Irish Independent

Rein in libel costs to protect our free press

Seán Donlon

- Seán Donlon Seán Donlon is chair of the Press Council of Ireland

TWO significan­t threats to press freedom in Ireland today relate to defamation and social media. The first is the delay in the review of the 2009 Defamation Act. The second is that social media platforms are not subject to any form of regulation or supervisio­n, government­al or otherwise.

In 2017, I welcomed the fact that the Minister for Justice and Equality had initiated a public consultati­on as part of a proposed review of the Defamation Act.

The Act requires a review after five years and while the public consultati­on took place and submission­s were received, we haven’t yet seen any sign of the review. It is now seriously overdue.

The Press Council of Ireland was among the organisati­ons to make a detailed submission to the Department of Justice following its call for submission­s to inform the review.

Our focus was on amending the Act in the interests of press freedom. This was because erratic and disproport­ionate defamation awards, together with their associated legal costs, have a chilling effect on press freedom and upon the right of the public to be informed of issues the press considers significan­t.

A free, independen­t and vibrant press, holding government­s and those in authority to account, should not be constraine­d by damaging defamation laws.

The Press Council’s submission included the following suggestion­s.

■ The current defamation process is costly for all parties and frequently results in awards that are excessive by comparison with other European countries. We suggested cases should be heard in the Circuit Court where there would be a limit on costs and potential awards. In cases where larger amounts were being sought, the hearings might be in the Commercial Court. In all cases, there should be a limit on the role of juries in deciding the awards.

■ One of the matters a court can take into considerat­ion when determinin­g whether it was fair and reasonable to publish an alleged defamatory statement is the extent to which a person adhered to the Press Council’s Code of Practice and abided by determinat­ions of the Press Ombudsman and Press Council. We suggested this section be amended and strengthen­ed to encourage all publicatio­ns to join the Press Council.

■ While acknowledg­ing a balance must be maintained between the right to publish and individual­s’ rights to their reputation, the Press Council was concerned the media’s confidence in publishing robust commentary was being threatened by the fear of unfair and unjust threats of defamation actions by individual­s or companies who had been fairly criticised. We suggested that any considerat­ion of the current defamation regime needs to take account of this.

It is a source of considerab­le disappoint­ment that some 15 months after the closing date for submission­s, there has been no response from the Minister for Justice, and no apparent progress in the overdue review of the Act.

Meanwhile, in June 2017 the European Court of Human Rights described the high level of damages in one Irish case as representi­ng “a violation of freedom of expression”.

When can progress on reviewing and, hopefully, amending the Act be expected? The ball is entirely in the Government’s court.

Dealing with the role of social media is more complex. Election and referendum campaignin­g in Ireland has, until now, taken place in a largely regulated environmen­t.

The press is subject to the Code of Practice of the Press Council of Ireland. Broadcasti­ng is subject to the codes and standards of the Broadcasti­ng Authority of Ireland.

Advertisin­g is subject to the Code of Standards of the Advertisin­g Standards Authority of Ireland.

Even election posters are subject to regulation. However, in the current referendum on the Eighth Amendment, it became clear that a lot of campaignin­g was taking place in entirely unregulate­d and opaque social media platforms.

The recent decision by Facebook to ban advertisin­g relating to the referendum on the Eighth Amendment that was funded by advertiser­s based outside the State, and the subsequent decision by Google and YouTube to suspend all advertisin­g relating to the referendum, was a recognitio­n by Facebook and Google that their social media platforms could be an influentia­l factor in determinin­g the outcome of elections and referendum­s, and their practices lacked transparen­cy and accountabi­lity.

Against that background, it is essential government­s and internatio­nal organisati­ons such as the EU address the disproport­ionate and unaccounta­ble power of social media. There has to be acceptance that responsibi­lity goes with power.

If tech giants like Facebook and Google do not themselves take action to ensure they do not undermine democratic systems, then government­s will have to bring in measures to ensure they will be subject to supervisio­n and/or regulation comparable to that which currently exists for the press, broadcasti­ng and advertisin­g.

‘It is essential government­s and internatio­nal organisati­ons address the disproport­ionate and unaccounta­ble power of social media’

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 ?? Photo: Reuters/François Lenoir ?? Cardboard cutouts depicting Facebook CEO Mark Zuckerberg are pictured during a demonstrat­ion ahead of a meeting between Zuckerberg and leaders of the European Parliament in Brussels this week.
Photo: Reuters/François Lenoir Cardboard cutouts depicting Facebook CEO Mark Zuckerberg are pictured during a demonstrat­ion ahead of a meeting between Zuckerberg and leaders of the European Parliament in Brussels this week.
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