Changes to defend court reporters urged

The Law Reform Commission is recommending changes to the law to stop people involved in court actions taking defamation claims against journalists who make minor mistakes in reporting their case.

The commission says a “simple oversight, omission, or error” in a court report should not expose a reporter to the risk of being sued for defamation. It recommends that the Defamation Act 2009 be amended to add protections for reporters, by including a list of what constitutes a fair and accurate report and making it clearer when those standards are breached.

In a report being published today, the commission says the list should be “non-exhaustive”, but it should start by including the following five factors:

An abridged court report will be privileged [protected against a defamation case] provided that it gives a correct and just impression of the proceedings;

If the report as a whole is accurate, a slight inaccuracy or omission is not material;

If a report contains a substantial inaccuracy, it will not be privileged;

It is not sufficient to report correctly part of the proceedings, if, by leaving out other parts, a false impression is created;

A report assuming a verdict before any verdict has been delivered is not privileged.

Those factors were set out by the High Court in 2016, in a ruling on a case taken against the Irish Examiner, which the newspaper successfully defended.

The claimant had tried to argue that reporting of a case about his dispute with his employers, although accurate, was defamatory, in that it hampered his efforts to secure other employment.

The commission says while professional journalists are aware of the principles set out in that case, and also in guidance issued by the Press Council and the Broadcasting Authority of Ireland, they should be included in the legislation.

This is particularly important, because, increasingly, court cases are being reported by non-professionals, such as bloggers and citizen journalists.

Last year, the courts banned live social media postings from courtrooms during trials by anyone other than a professional journalist, a lawyer with direct interest in the trial, or a professional legal commentator.

At the time, the Chief Justice said the direction might need to be enshrined in law. The commission says it acknowledges the concerns around social media posts, but because the Government is currently working on legislation to set up an online safety commissioner and deal with the issue of harmful communications, it is making no recommendations at this time.

The commission also looked at establishing the principle of qualified privilege for court reports that fall below the standard of fair and accurate, but says to do so would risk reducing the standard of reporting.

“This would adversely affect the appropriate balance that defamation law seeks to achieve between the two key rights engaged, namely: the right to a good name and the right of free speech and expression.”

The commission began its review in 2015, at the request of the then attorney general, Máire Whelan, who said that those reporting court proceedings should not have to fear that a “simple oversight, omission, or error” would expose them to being sued for defamation.