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Defamation Media Constitution
Introduction – What is Defamation?
In a society that often prides itself on having a free and unbiased media, it is important to understand the limitations of such a freedom and the effects it has on a person’s social rights. Different jurisdictions tend to embrace the concept of defamation in different ways. For example, the United States has the First Amendment in their Constitution, which has become famous through its abundant presence in popular culture that is based around American law. Australia has an implied freedom of political communication, which is not expressly provided for in their Constitution; however case law has seen effect given to such a value which is far more specific than the American Constitution.
The Irish system is quite different from the above. As this brief will uncover, the Irish definition of defamation law is essentially the right of a person to their reputation or their good name. This brief will critically discuss the ways that the Irish courts apply defamation laws, and the relevant constitutional and legislative framework that is in place, which is somewhat unique to the Irish system.
The Irish Constitution
The Constitution is the most supreme law in the land. It limits the government’s legislative abilities while also balancing the fundamental rights of its citizens. Different jurisdictions have different values which they seek to protect, often reflecting different cultural ideologies. However, Ireland appears to take much of its guidance from countries such as the United States and Australia, in that it protects the overall freedom of the media.
This ‘freedom of expression’ is considered fundamental in allowing persons to express their thoughts on government and political issues, which is vital in promoting democratic ideals and enhancing social participation. Obviously, this draws parallels with the famous First Amendment of the United States Constitution which protects an individual’s right to free speech, however the Irish Constitution appears to somewhat limit and specialise the protection it offers its citizens.
The Irish Constitution extends its express protection against defamation beyond the media on to the individual. It states:
…the State shall, in particular, by its laws, protect as best it may from unjust attack (and, in the case of injustice done, vindicate) the life, person, good name and property rights of every citizen.
This is the cornerstone of an individual’s protection against defamation in the Irish jurisdiction. It expressly and firmly entrenches the notion that a citizen is entitled to a good reputation, and any violation thereof must be justified in the sense that a person has brought on such action themselves.
It places a duty upon the legislature to put in place laws which would serve to protect a person’s good name, and the laws of defamation have been specifically acknowledged by the Irish High Court as fundamental in promoting this protection.
The Constitution, while serving to protect persons against any defamation actions, also recognises the need to balance protection of rights with the need for freedom of expression. As previously mentioned, the Constitution serves to protect the rights of individuals against defamation through placing restrictions on the media’s rights to express opinions in certain circumstances.
This is elaborated upon expressly in the Constitution, in the sense that it says the media and press retain their right to a freedom of expression, however it is not to use that freedom to undermine public order, morality or the authority of the State. This clearly demonstrates the requirement that the State must balance freedom of expression with protection of one’s good name, which has been mentioned throughout this chapter.
In summary, it is quite clear that the Irish Constitution forms a key part of the protection of an individual from defamation. As this brief will uncover, it is these constitutional provisions that form the cornerstone of legislative protections, such as the Defamation Act 1961, and a host of case law on the issue.
Additionally, it would also appear that the Constitution is consistent with European standards, in that it protects one’s fundamental right to their good name while finely balancing the need for a free and unbiased media. This can be found in Article 10 of the European Convention on Human Rights, which states:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas, without interference by public authority and regardless of frontiers.
It goes on to say:
[Restrictions will be placed on this freedom] as are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
These standards are consistent with the aforementioned discussion, and clearly demonstrate the need for the balance of rights with democratic ideas and values.
The Defamation Act 1961
It could be said that the most significant law on defamation in Ireland is the Defamation Act 1961. This legislation replaces much of the law that previously existed in terms of defamation, and codifies many of the common law principles of defamation that are preserved in the Irish legal system. This Act is divided into three key parts: Part I is a preliminary section, dealing with much of the definition, application and jurisdictional issues.
Part II addresses the concept of criminal libel, which is an entirely different area of law again from defamation, and Part III (sections 14 to 26) deals with civil defamation. This brief will now attempt to offer a critique of the relevant provisions of the Defamation Act 1961, assessing how it serves to protect one’s constitutional right to their good name.
Perhaps one of the most intriguing provisions of this Act is one that prohibits a party from using words which impute unchastity or adultery on the part of a woman or girl. This, in itself, is not such an extraordinary provision; however the same section also provides that an action may be taken by a party offended by such words without any proof of actual damages. Therefore this Act, at least in this regard, tends to err on the side of caution and expressly outlaw any libellous comments in relation to a woman’s sexuality ideally without the need to resort to the courts for remedy. As a general rule, Part II of this Act seeks to outlaw certain conduct by parties, particularly the media, in order to prevent libellous statements from being made in the first case.
The Second Schedule of the Act prescribes certain publications as being privileged (i.e. exempt from defamation laws unless malicious intention can be proven). Such publications include reports of decisions taken by international and domestic political organisations, meetings of companies, and other meetings which discuss issues of public concern. Therefore, the Act also recognises the duty of the media to report issues that are of concern to the public, while seeking to balance out that right of knowledge with the public’s constitutional right to their good name.
There has been some push for reform of the Defamation Act 1961 in the past few years. Some have cited the European Convention on Human Rights as their primary concern, claiming that the current Irish law lags behind the standards that are set by the European legislation. There is also claim that the proposed legislation needs to take recognition of similar decisions which are handed down by European and UK courts, given the fact that these two jurisdictions have defamation laws which are considered to be the benchmark in libel protection.
The Approach of the Courts
This brief has covered the various constitutional and legislative frameworks that are in place in order to allow the courts to properly discharge their role of applying the law. But often there comes a time when the courts are still required to make decisions where the law is unclear or non-existent, which is the cornerstone of the common law system. Ireland is no different, and there have been plenty of common law decisions handed down over time to provide further guidance as to how defamation law is applied in the Irish jurisdiction.
The courts have further elaborated upon the already existing laws in Ireland and have accordingly specified that in order for a statement to be actionable under defamation, the following three key criteria must be satisfied:
The statement must be published;
The statement must refer to the person complaining; and
The statement must be proven to be false.
In relation to the need for the statement to be published, the courts have said that (for example) a letter that is sent to a person only becomes slanderous when it is read by persons other than to whom it was addressed, given that there would otherwise be no evidence of the comments in the letter becoming public. However, the courts have also stated that a person who anticipates that a statement will become public can apply for an injunction to prevent its publication; however where the publisher can prove a need to publish on the basis of public interest, the court will often refrain from issuing an injunction and leaving the claimant to seek remedy through damages at a later stage.
The courts have further refined the abovementioned list of criteria for libel and slander, and have adopted the following list taken from Gatley on Libel and Slander (10th ed, 2004, London), which illustrates the factors that the court should take into consideration when deciding whether a newspaper article may be libellous:
1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true;
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern;
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories;
4. The steps taken to verify the information;
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect;
6. The urgency of the matter. News is often a perishable commodity;
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary;
8. Whether the article contained the gist of the plaintiff's side of the story;
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact;
10. The circumstances of the publication, including the timing.
This is not in itself an exhaustive list of what the court will consider in these cases involving publications in the media; however it at least allows us to establish the ratio decidendi behind it. The courts will of course balance the above list in conjunction with the constitutional and legislative rights of the public to receive such information; but the court will, at all times, seek to hand down a decision that ultimately serves the interests of the parties concerned as well as the public at large.
This brief has sought to offer a critical discussion as to how Irish defamation law seeks to protect the rights of individuals and the media. It has also sought to discuss the ways in which the courts are bound to apply the law. It is abundantly clear that defamation law is firmly entrenched in the Constitution of the Republic of Ireland, which forms the foundation of all laws that are enacted within that jurisdiction.
The proposition that this brief set out to discuss claims that the defamation laws in Ireland seek to strike a balance between the right of someone to their reputation and the right of the media to freedom of expression. It is clear that the laws do attempt to do this, as one only needs to look at Article 40 of the Constitution to see an express demonstration of such a practice.
The courts are obviously bound by the Constitution, and thus their freedom to interpret defamation laws is somewhat limited. However, the courts have been free to devise certain criteria within the constitutional and legislative framework that is in place to ensure a consistent application of defamation principles. There must be a need for the comments of a party to be published, be false and identify the claimant in order for a claim in slander can be substantiated. Within this, however, the courts have devised a list of factors which they consider in conjunction with these broad principles, which appear to allow for a number of different circumstances to be adjudged equally.
Finally, it would appear that the standards relied upon by the Irish courts in regards to defamation laws are consistent with the approaches taken in other jurisdictions, especially in Europe. This is clearly evidenced by Article 10 of the European Convention on Human Rights, which again establishes the notion that a domestic legislature must attempt to balance the rights of the individual with the right to freedom of expression. A democratic society cannot exist without these two factors being present, and thus it is of utmost importance to preserve them with the maximum possible effect, without detracting from the need to protect other individual and social rights.
Gatley, J.C.C., McEwen, R.L., and Lewis, P.S.C., Gatley on Libel and Slander (10th ed, 2004), London: Sweet and Maxwell
Ahern v Maguire (1840), full citation unavailable
Australian Capital Television v Commonwealth (1992) 177 CLR 106
Judge Alan Mahon and others v Keena and another  IEHC 348
Kennedy v Hearne  IR 481
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Leech v Independent Newspapers (Ireland) Ltd  IEHC 223
National Irish Bank v Radio Telefis Eireann  2 IR 465
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Reynolds v Sunday Times Newspapers  2 AC 127 HL
Defamation Act 1961
European Convention on Human Rights
United States Constitution
Author Unknown, ‘Defamation Bill Goes Before Seanad’ (2006) The Irish Times, 6 December 2006, available at <http://www.ireland.com/newspaper/breaking/2006/1206/breaking43.htm>
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