Our View: The media and the democracy it serves to protect not served by draconian defamation laws in Ireland

Saudi journalist Jamal Khashoggi

Today is World Press Freedom Day, an annual event to celebrate the fundamental principles of press freedom. 

First proclaimed by the UN General Assembly in 1993, this year’s event includes a conference taking place in the Ethiopian capital, Addis Ababa, on the theme of journalism and elections in times of disinformation.

Given the importance of speaking truth to power, it is worth reflecting on the role played by the so-called Fourth Estate, a phrase attributed to the 18th Irish statesman and philosopher Edmund Burke who used it in a parliamentary debate in 1787 on the opening up of press reporting of the House of Commons in London.

This is a dangerous time to be a journalist. At least 54 journalists were killed last year. 

Among that number, 34 were murdered due to their work, while the remaining 20 were caught in crossfire during a dangerous assignment.

Just how dangerous that work can be came to our own shores last month when Lyra McKee was shot dead by the New IRA in Derry, a tragic event that prompted President Higgins to comment:

The loss of a journalist at any time, in any part of the world, is an attack on truth itself.

Being a journalist is also dangerous in other ways, with many practioners being subject to severe persecution, intimidation and threats. 

Emboldened by the hostile rhetoric of word leaders like Donald Trump and his characterisation of critical comments as ‘fake news’, more authoritarian governments are harassing, curtailing and jailing journalists. 

More than half of those behind bars are being held in Turkey, China, and Egypt, most of them on charges of opposing the state.

In contrast to what is happening in many countries, the media in Ireland operates under a relatively benign regime; yet journalism is not without its constraints.

While the Constitution guarantees the right to freedom of expression and the courts recognise that as extending to the media, the right to publish matters of public concern and interest is curtailed in a number of ways. 

Family court hearings are held in private; the right to publish must be balanced with the right to personal privacy and we still have a Censorship Board with the authority to prohibit any book or periodical that it finds to be obscene. 

Until the late 1980s, a number of newspapers and magazines were banned in Ireland including Playboy and the News of the World.

A more insidious form of curtailment to freedom of the press in Ireland concerns our draconian defamation regime. 

As Newsbrands Ireland, the voice of our newspaper industry, today launches a campaign for reform, it should be noted that awards of more than €1 million are not unheard of and this has a chilling affect on journalists and media owners. 

Even a single judgement amounting to hundreds of thousands of euro against a newspaper or other media organisation may be enough to force it to shut its doors, potentially putting hundreds of people out of work.

The reason for such high awards is generally attributed to the fact that Ireland is the only country in Europe where defamation actions are heard before a jury. 

In Britain, trials are held without a jury unless the court directs otherwise. There is also a huge disparity between awards for defamation and those given for personal injury.

Damaged feelings are worth more than a damaged body.

The case of Alan O’Gorman illustrates this well. At the age of 21, Alan, from Co Meath, had his stomach needlessly removed by surgeons at St Vincent’s Hospital in Dublin who incorrectly diagnosed him with cancer. 

In 2006, he received damages of €450,000, the same year that businessman Denis O’Brien was awarded €750,000 in libel damages against Mirror Group Newspapers.

For years, Ireland gave unlimited discretion to juries in assessing damages. 

The highest award ever was €10 million, awarded by a High Court jury in 2010 to a businessman who had been defamed by a press release issued by his employer.

Such was the level of disproportionate jury awards and the exorbitant costs of libel actions that a new defamation regime was introduced in January, 2010 to shepherd, in the words of one Irish law firm, “the wandering sheep” sitting on Irish juries.

The current legislation permits a plaintiff, instead of suing for damages, to seek an order in the Circuit Court that the offending publisher issue a public apology, correction or retraction and desist from republishing the defamatory material. 

Yet, suits for damages remain the norm and high awards are still the rule. Along with that, there is still no requirement that actual loss to business or personal reputation has to be proven. 

All the plaintiff has to do is make the claim.

This is in stark contrast to the UK, where someone suing for libel has actually to prove that there was “serious harm” to their reputation as a result of the publication and where the maximum award in England and Wales for such a proven claim is £250,000 (€291,000).

Awards in Britain are higher than most of Europe but nothing as high as this jurisdiction and the contrast between Ireland and the rest of Europe is staggering.

The highest award ever in Portugal was €75,000 and it was later deemed by the European Court of Human Rights to be excessive, with the court declaring that it “inevitably risked dissuading journalists from contributing to public debate on questions of general interest”.

Defamation awards in Austria are capped at €20,000 for most cases while in Malta the maximum is €11,640, with most disputes going to arbitration. 

In the Netherlands, awards are, on average, between €1,000 and €5,000, while in Sweden €15,000 would be considered adequate compensation for a serious infringement.

Reform has proven tortuous. It took 49 years for the 1961 Act to be replaced. 

We were promised a review of the current legislation within five years but that is yet to happen.

Ireland’s defamation law has come to the attention of the Paris-based NGO, Reporters Without Borders (Reporters Sans Frontières) which measures the level of media freedom in 180 countries.

Its World Press Freedom Index, published annually by RSF since 2002, it assesses the level of pluralism, media independence and the quality of the infrastructure that supports the production of news and information. 

Ireland is ranked 15th in the world, up one from last year.

While describing the highly concentrated nature of media ownership as the single largest threat to press freedom in Ireland, the review notes: “the possibility of exorbitant damages, combined with the high costs of defending defamation suits, has resulted in a climate of self-censorship, in which prominent individuals known to be litigious become largely untouchable by the Irish media.”

That is neither good for the media nor for democracy which the Fourth Estate serves to protect.

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