Rein in libel costs to protect our free press
Seán Donlon
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’