Category: Defamation

Court reporting and absolute privilege from defamation claims

Late last year, Attorney General Maire Whelan called for a review of Irish defamation law in so far as it affects court reporters.

[Court reporters] should not have to fear a “simple oversight, omission or error” in reporting court proceedings exposes them to risks of litigation, or claims in damages, with consequent risks to their livelihood. There should be at least a debate, and consideration, of enshrining into Irish law a provision that no report of court proceedings should be actionable in defamation unless there is proof of “malice”, Ms Whelan said.

A recent defamation claim against the Irish Examiner relating to reports published on that newspaper’s website raised precisely this issue (Philpott v. Irish Examiner Limited [2016] IEHC 62). The judgment by Mr Justice Max Barrett delivered last week adds some interesting commentary to the topic.

Section 33 of the Defamation Act 2009 allows for an application to be made to a court prohibiting the publication or further publication of a statement if it is defamatory and there would be no defence available justifying its publication. The relevant defence here is of court reporting which, if done properly, is absolutely privileged.

In this case the plaintiff had been CEO of a healthcare organisation in Cork and, apparently due to his view of shortcomings in the operation of the organisation, his employment ceased. He instituted employment law proceedings which were eventually settled. However, he objected to two reports carried in the Irish Examiner (article 1; article 2) relating to his employment law proceedings and sought an order under section 33 prohibiting the further publication of two relevant articles on the Irish Examiner website. This required him to satisfy the court of both requirements of section 33, mentioned above.

Barrett J noted that the barristers in the case could not identify any previous Irish case-law that examined the nature of the test to be applied under section 33 but concluded:

[I]t seems to the court that the tapestry of law woven by the Oireachtas does not invariably or even generally require additional embroidery by the courts. The Act of 2009 posits simply that there are three criteria which must be satisfied before an order can issue under s.33, [namely]:

(1) is the statement complained of defamatory?

(2) does the defendant have a defence to the claim of defamation?

(3) is that defence reasonably likely to succeed?

Barrett J quoted both articles objected to in full. In relation to the first one, the key “error” complained of was that something asserted by one party in the proceedings was reported as fact (ie. an allegation was represented in the article as fact). However, Barrett J held that erroneous statement did not injure the plaintiff’s reputation. He referred to other elements of the report complained of and “struggle[d] to see that there is much divergence of real substance” between the article and the relevant elements of the Circuit Court judgment that it was reporting on.

In fact, Barrett J felt that the manner in which the complaints regarding the first article was put forward amounted to a “dissection” which “represents a highly unnatural manner of reading.” He posed the issue as follows:

What are the key learnings that someone viewing the … article would likely glean? First, that there was an employment-related dispute between Mr Philpott and his onetime employers. Second, that Mr Philpott had been dismissed, ostensibly because of some sort of difficulties between him and other staff. Third, that Mr Philpott had made various allegations about how Marymount was run – and, perhaps implicitly, that this might have been the real reason for his dismissal. Fourth, that a Circuit Court judge had gone through Mr Philpott’s allegations in some detail and did not find them credible, though he did not doubt that they were sincerely made. In short, the reader would have garnered the truth of matters, as this Court did on its first reading of the article. Anyone who elected to run a fine tooth-comb over every element of the article would have ended up with the same understanding.

In relation to the second article, Barrett J was “mystified” by the plaintiff’s concerns.

The whole thrust of the article is that peace has broken out between the parties, that all has been resolved, that Marymount wishes Mr Philpott well, that a line has been drawn under past events and that everybody is now moving on.

He went on to make some important points about court reporting.

Court reports are not just of interest to the public; they meet a great public interest. In a liberal democracy that prizes individual freedoms, all branches of government are rightly subject to the scrutiny of an ever-watchful public. Reporters perform an essential role in ensuring that members of the public learn of what is being done in their courts and why … This is so important a task that – except insofar as is necessary to ensure that the right of every citizen to her or his good name is protected and capable of vindication – the media must go relatively unconstrained in their efforts. Our individual freedoms are more fully assured in the collective freedom of journalists to discharge the role so eloquently identified for them by the late President Kennedy, in a speech to the American Newspaper Publishers Association back in 1961, being “not primarily to amuse and entertain, not to emphasise the trivial and the sentimental, not to simply ‘give the public what it wants’ – but to inform, to arouse, to reflect, to state our dangers and our opportunities, to indicate our crises and our choices, to lead, mould, educate and sometimes even anger public opinion”, and, it might be added, not just to report, but to comment.

There had also been some objection by the plaintiff that certain aspects of the his Circuit Court case were not reported at all. Barrett J said:

To the extent that it is suggested that a court reporter needs to be present for any, let alone every, aspect of court proceedings on which s/he reports, this proposition is entirely rejected by this Court.

Reporters do not have a free hand to report on cases they have not attended: principles have already been developed by the courts outlining that a report must be fair and accurate to benefit from a defence to a defamation claim. A fair and accurate report on a written judgment from a court could not give rise to a claim for damages, for example, even though the reporter might not have attended any of the hearings.

Ultimately, Barrett J held that neither of the articles were defamatory, that the Irish Examiner would have a full defence to any claim of defamation on the basis of absolute privilege and that such a defence would be likely to succeed at trial. Therefore, all of the plaintiff’s claims were dismissed.

The case is an interesting, up-to-date statement of the law on court reporting in Ireland and obviously some of the comments made in the judgment chime with the Attorney General’s views. It may be that the judgment would hold back the tide of defamation claims against publishers somewhat and might alleviate the need for further legislation on the topic (subject to any appeal, of course).

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Defamation of a company

The official text of the controversial Defamation Act 2009 has finally been made available. Most of the controversy was whipped up by the blasphemy sideshow, while other reforms received less attention.

There was little focus, for example, on section 12 of the Act, which is far more likely to be of general interest than the blasphemy provisions:

The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.

The Irish Human Rights Commission argued that the ability of a company to sue for defamation should be more restricted than that of a private individual:

While it is clear that a body corporate has the right to sue for defamation, the same issues of the right to a good name and reputation do not apply as would be the case for an individual action. In this regard, the case may be made that restrictions on freedom of expression operating in favour of a body corporate should be more narrowly drawn than those protecting the reputation and privacy rights of individuals.

Those critical of the Seanad should note that this debate was aired in that house. Senator David Norris was more forceful (Seanad Debates, 20 February 2007):

If there is no financial hurt, one is left only with feelings. I contend, however, that corporate entities are not entitled to feelings. The ability to feel is a human attribute that does not attach to the collective in the same way.

I again plead the interest of the ordinary person in this. If I were to say that Guinness or Mars bars are bad for us, should the corporate entities that manufacture those products be allowed to land on me? … We should not be expected, however, to compensate a corporate identity for an injury to its supposed corporate feelings.

Indeed, then-Minister for Justice Michael McDowell appeared to take on board these concerns.

The good name of every citizen requires to be upheld by the Constitution but companies are not citizens. I will reconsider the matter between now and Report Stage. It may be better to recast the section to state that a body corporate can only bring a defamation action in respect of a statement made where it has incurred, or is likely to incur, financial loss or where the statement was made with malice.

Some senators came to the defence of the section. Various reasons were offered in support of it, including the need to protect jobs and to protect against industrial espionage (although the example given by Senator Walsh appears to be plain, old-fashioned defamation or injurious falsehood, rather than the more exciting category of industrial espionage). However, the provision survived in the Act.

While the ability of companies to sue for defamation was regarded as already established in the common law, the explicit provision that financial loss need not be established appears to heighten the risk of McLibel type actions in Ireland.

It is disappointing that an alternative form of action was not introduced for corporate bodies in Ireland, as suggested by the IHRC,  not least as large companies have far greater resources than most individuals to launch defamation actions and introduce chilling effects to comment on their affairs. Consumer affairs correspondents, such as the Irish Times’ Pricewatch or even consumers groups could find themselves targeted.

Of course, perhaps they already are and perhaps fears of a chilling effect have already been realised. It is anecdotally known that restaurant proprietors are particularly sensitive to adverse comment and often resort to the threatening solicitor’s letter. The tactic is believed to successfully keep certain restaurants out of the papers (or, at least, out of the review sections).

To take a current example, Maclaren may come to feel aggrieved at coverage of pramgate. The necessity for a product recall in the EU, as has been carried out in the US, remains unclear at present but it is conceivable that a journalist could write something about the company that it finds actionable. That journalist may, in the event, have a valid defence. But will the case be fought, or will the newspaper decide it is not worth risking a test case under the new Act?

Of course, such an action could result in negative PR for the company issuing the threats and that PR risk may act as a deterrent. As ever, we will have to wait and see what the real world throws up against our paper laws.

PS. Unsurprisingly, the Defamation Act 2009 continues the practice of this Government to provide for commencement of the legislation by Ministerial order, rather than by setting a commencement date. According to the website of the Department of Justice, commencement is now expected in November/December 2009, once the Rules of Court are updated to accommodate the Act.

In defence of Carter-Ruck?

The ‘gagging’ order issued by the English High Court against the Guardian yesterday kicked off a remarkable and fast-moving story in which the media and the law were on an apparent collision course, and in which the twitteratti has laid claim to a significant influence.

On first impressions, the injunction seemed wholly undemocratic and quite bizarre, given that the subject-matter it prohibited the Guardian from publishing was public information. However, the level of opprobrium heaped on Carter-Ruck Solicitors is equally remarkable. They might not, perhaps, be deserving of sympathy, but do they deserve the criticism and vitriol, or the protest which will apparently take place outside their offices on Thursday?

By some accounts, the founder of Carter-Ruck Solicitors was primarily motivated by self-interest in pursuing expensive libel claims. But don’t lawyers act on behalf of their clients? Rational firms do not wage wars of aggression on their own behalf (after all, they will want to be paid for their work). If a lawyer is a gun, someone must pull the trigger. Today, the Guardian says:

Carter-Ruck, the law firm representing Trafigura, was accused of infringing the supremacy of parliament after it insisted that an injunction obtained against the Guardian prevented the paper from reporting a question tabled on Monday by the Labour MP Paul Farrelly. [My emphasis.]

Surely, if any such accusation is to be made, it should lie at the door of Carter-Ruck’s clients?

More importantly, lawyers don’t own the shooting gallery. The British government is free to line up the libel ducks up in a different manner and most would agree that reform of UK libel law is long overdue (even Ireland has gotten around to updating its defamation law, though we await the Privacy Act that was to be its companion).

Today, Carter-Ruck Solicitors released a statement on behalf of Trafigura which complicates the episode somewhat and it may be that the legal technicalities behind this story are not simple enough to fit in a soundbite (or tweet, for that matter). Carter-Ruck has been accused of chilling freedom of speech. Should that criticism not be leveled at the firm’s clients rather than the firm itself?

At what point do we hold lawyers to blame for the actions of their clients?

US laws to thwart libel tourism

An interesting letter in today’s Irish Times from Rachel Ehrenfeld of the American Center for Democracy points to recent developments in US law which attempt to thwart international libel tourism.

It seems the New York Libel Terrorism Protection Act (the Americans are quite fond of dramatic titles for their legislation – though, according to Wikipedia, the title is a misnomer) was a result of such litigation against Ms Ehrenfeld and prevents the enforcement of foreign libel judgements in New York unless the jurisdiciton in which the judgement originates provides the same level of free speech as New York. The ‘victim’ of libel tourism can also petition the New York courts to have the foreign judgement declared unenforceable.

The Free Speech Protection Act, currently a Bill at the early stages before the US Houses of Congress, introduces similar measures on a federal scale.

It would be interesting to know if our recently-enacted Defamation Act 2009 would pass the American test – unfortunately, the point does not arise in the context of Ms Ehrenfeld’s discussion. According to the Times, at least, on the passing of the Act:

The changes will bring defamation into line with the norm of the civil law. Newspapers can make an apology when they know they have got things wrong without admitting liability. Judges can give directions to a jury in assessing damages and parties to the proceedings can make submissions on their scale. All plaintiffs have to file an affidavit to verify the particulars of their defamation claim, thus neutering the common “gagging writ”. These, and other reforms, are important changes in the processing of defamation actions after they arise.