Sarah Harte: New law doesn't go far enough to rebalance free speech rights
Our civil defamation law is widely considered to be oppressive compared with other European defamation laws, meaning that freedom of speech is disproportionately curbed. Political parties, wealthy individuals or corporations too often take Strategic Lawsuits Against Public Participation (SLAPPS) to effectively stifle independent reporting and commentary. File photo
“Reputation, reputation, reputation! O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.” So spoke Cassio in after a drunken brawl when he was stripped of his position. He feels nothing more than ‘bestial’ without his good name.
Our reputations are precious, and harmful, defamatory statements can strike at the core not just of our identity but at our dignity and public standing, sometimes with financial consequences. Getting the balance right between protecting an individual’s right to their good name and the right to freedom of expression is not always easy, but it is critical.
While the right to your good name as an Irish citizen is enshrined in the Constitution, its cultural roots actually date back to the Brehon Laws. Of course, sometimes something written about you may be hurtful or even deeply embarrassing, but not necessarily defamatory.
A letter I wrote once in a business context to a board of directors was unethically leaked by a third party to the magazine in its entirety. When I saw my name on the front cover of the magazine (I was in a corner shop buying sweets with the offspring), I distracted them and then shakily paged to the article to see my letter printed.
My stomach churned, and I felt totally violated. Much as I felt hard done by, legally, did not remotely defame me because I had written that letter, and they had simply printed it with a bit of commentary. So, it was a case of tough nuggets to me and off home to lick my wounds.
However, when a person believes that their reputation has been damaged, it is open to them to sue for defamation, which is right and proper. Yet, what we want to avoid at all costs is a scenario where our legal regime permits vested and wealthy figures and organisations to sue for relatively minor damage to their reputation.
Or to put it another way, where claimants get away with weaponising defamation law to intimidate public comment, public participation and valuable journalism that seeks to expose either wrongdoing or to shine a light on questionable doings, or even just to simply comment.
Although the number of defamation cases taken in Ireland fell last year, according to one statistic I read, we have a higher number of defamation cases than England and Wales combined, which, when you consider the difference in population, is stark, meaning that the rate is 19 to 20 times higher here.
Our civil defamation law is widely considered to be oppressive compared with other European defamation laws, meaning that freedom of speech is disproportionately curbed. Political parties, wealthy individuals or corporations too often take Strategic Lawsuits Against Public Participation (SLAPPS) to effectively stifle independent reporting and commentary.
These chilling onomatopoeic-sounding SLAPPS are part of an existential risk to the media already under threat due to challenging market conditions and are deleterious to freedom of expression. Ireland has been repeatedly criticised by the EU for our lax attitude to reining in SLAPPS.
So there were high hopes for the new Defamation (Amendment) Bill 2024, currently in front of the Seanad, which was meant to correct this. The bill has been touted in certain quarters as a significant shift in the law meant, among other things, to address the imbalance between protecting a good name versus the right to freedom of expression.
Media organisations, activists and civil liberties organisations, as well as lawyers and academics, have all criticised the bill, saying it falls far short of curbing SLAPPS by failing to transpose the entirety of the European Directive.
Although under the bill, defendants in defamation cases may be able to seek an early strike-out of unfounded claims by seeking a declaration that a defamation case qualifies as a SLAPP, key features in the EU directive have been omitted from the bill. Such is the extent of the omissions that Ireland may be exposed to legal action at the EU level, which says it all.
Another glaring oversight, as far as I’m concerned, is that it was previously thought that the bill would contain the serious harm thresholds for all litigants like those enshrined in English law. Meaning somebody who took a defamation action would have to show not only reputational damage but also severe financial harm arising from the alleged defamation.
This makes good horse sense and would put a stop to many nuisance defamation actions. In the new Irish bill, however, the serious harm threshold only applies to corporate litigants rather than all litigants, as is the case in the UK.
This is a big mistake. The refusal to include the serious harm threshold for all litigants has been cloaked in legal arguments about the constitutional danger to a citizen’s right to their good name. Honestly, legally, this seems somewhat unconvincing.
Overall, the new bill is a crushing disappointment because the bar for taking a case in Ireland remains too low, and it will continue to facilitate vexatious actions by people, parties and organisations who wish to silence and bully others.
The question, though, is why the bill is so deficient. You can’t help but wonder if there is a political self-interested angle to this. Do politicians genuinely want a defamation law that strikes a reasonable balance between protecting people's right to a reputation and a media that can hold politicians and others to account through reporting on them?
We waited long enough for a change to defamation law, and now that it’s come, it’s a major missed opportunity, particularly when we need politicians to safeguard the media’s role if we want the media to survive.
Guaranteeing an independent media means not only stable financial conditions, which sadly, large sections of the media currently don’t have, but also a balanced law that supports honest reporting and commentary.
In an era of fake news, democracy demands it because more than ever, traditional media holds considerable public interest value in holding people to account, as it fact-checks and provides a verifiable version of the news that readers can trust.
Nobody wants a culture where sections of the media that put profit before quality journalism can willy-nilly publish false and defamatory stories trashing people’s reputations. However, our current system will remain imbalanced unless this impotent new defamation bill is amended in a targeted and thoughtful way.
When we curb free speech, our access as citizens to the truth is restricted. Nobody should want that, but you know what, maybe some people do.
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