The crit­i­cal bal­ance: pro­tect­ing your name vs free ex­pres­sion

Cost and un­pre­dictable ju­ries can make defama­tion lit­i­ga­tion a po­ten­tial lot­tery, writes An­drea Martin

Sunday Independent (Ireland) - - ANALYSIS - An­drea Martin is a Part­ner at Me­dia Lawyer So­lic­i­tors

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’

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