The critical balance: protecting your name vs free expression
Cost and unpredictable juries can make defamation litigation a potential lottery, writes Andrea Martin
AS a society, we need to ask if we have yet found the right balance between freedom of expression and the protection of individual reputation.
Let’s take our 1937 Constitution as a starting point.
Article 40.6.1 of Bunreacht na Heireann guarantees each of us the right to free expression of our convictions and opinions. That right has been held by the courts to include the right to communicate the facts on which those convictions and opinions are based.
Article 40.3 says the law must protect and vindicate the good name of each of us. Defamation law, in effect, determines the fulcrum point where freedom of expression yields to the protection of an individual’s good name and reputation. That’s the theory. And the practice? Our defamation law is made up of centuries-old legal principles developed through common law — broadly speaking, judge-made law. The Defamation Act, 2009 consolidated and put many of these principles on a statutory footing, as well as introducing some useful new procedures for the hearing of defamation cases.
It provided the first statutory definition of a defamatory statement, as being one that “tends to injure a person’s reputation in the eyes of reasonable members of society”. And that remains the litmus test — what reasonable members of society would think of a claimant in light of what has been published about them.
Juries made up of reasonable people will decide in the High Court if a statement is defamatory and, if so, how much compensation should be awarded. However, the decisions of juries are impossible to predict — particularly when it comes to the amount of damages to be awarded to a successful claimant. The outcome of a defamation action is about as predictable as a lottery.
If you believe you have been defamed, you first retain a solicitor. You’re probably looking at fees of €1,500 plus VAT just to get started. If the media outlet decides to defend the case, believing you haven’t been defamed (or perhaps tests your mettle and determination to see the case through), then unless you are very wealthy, be prepared to risk putting your house on the line in order to get the vindication you seek.
From the media outlet’s point of view, there may have been a genuine mistake — the wrong photograph used, a genuine error in a court report, an important detail overlooked in the rush to meet daily or hourly print or broadcast deadlines.
With the unpredictability of juries and the massive expense involved in defending defamation actions, most media outlets find that, even if they have a potentially good defence, the benefits of limiting their financial exposure and settling a claim outweigh the commercial risks of defending their journalism.
They pay up, get out early and cut their losses — just to stay in business. Insurance costs are high and the excess on policies are usually five- or six-figure sums.
Availability of sufficient funding to engage in defamation litigation is a major barrier to achieving a considered and comprehensive balance between freedom of expression and protection of reputation in Ireland. Like horse-racing, defamation litigation is a sport for the wealthy.
For reasons of demographics, and also the fact that we didn’t have a Court of Appeal for civil cases until 2014, there is in Ireland (compared to the UK) a relative dearth of precedent case law in defamation — which adds to the unpredictability of defamation litigation.
We have virtually no precedent case law on the critical ‘public interest’ defence, available under our common law since 2003. Its statutory iteration in the 2009 Defamation Act — the ‘fair and reasonable publication’ defence — is so narrowly drawn and open to such subjective judicial interpretation that it is rarely relied on.
A recent Court of Appeal judgment reduced by 75pc the damages to be paid by TV3 to a perfectly law-abiding solicitor after the station accidentally broadcast a photograph of him rather than the subject of the story — another solicitor, who had been charged with fraud. The award was reduced from €140,000 to €36,000, an illustration of the unpredictability of the outcome of defamation cases for both claimants and media defendants.
In the US, since Sullivan v New York Times in 1964, the courts have made a distinction between the level of protection of reputation offered to public figures and that afforded to private citizens who have no particular public profile or function.
No such distinction is made under Irish law, though the public function of a claimant can be relevant to the ‘public interest’ defence.
The question needs to be asked — should high-profile business figures, people holding public office or playing high-profile roles in society be treated the same way as every other citizen when it comes to vindication of reputation?
Does the equal treatment under defamation law of private and public figures encourage opportunistic claims by public figures?
In the UK, legislation introduced in 2013 requires a claimant to have sustained ‘serious harm’ to their reputation in order to succeed in a defamation action. A similar innovation in Ireland might well dissuade some litigants — those who are very wealthy or in high office — from bringing or threatening defamation claims over relatively minor slights to their reputations.
Such claims and threats can trigger a chilling effect on stories being published about these individuals, which in turn ill-serves the cause of freedom of expression in Ireland.
Defamation law, in theory, enables a harmonious and constitutionally ordained balance between freedom of expression and the protection of reputation.
However, in practice, a number of factors mitigate against the meaningful weighing of these two rights against each other. These factors include the costs involved in making and defending claims; the unpredictability of decisions about liability and compensation awards; narrowly defined defences; and the ability of public figures to sue based on what may be relatively minor damage to their reputation.
As a democratic society, we can’t afford to stop thinking about how best to achieve such a balance of rights.
‘Like racing, defamation litigation is a sport for the wealthy’