Tag: Defamation

More on court reporting of indecent material

In response to my post about sections 14 and 15 of the Censorship of Publications Act 1929, TJ McIntyre points out that it would be interesting to test the restriction on court reporting against the decision of the Supreme Court in Irish Times v. Ireland [1998] 1 IR 359. That case concerned balancing the constitutional right of the public to know what happens in courts against the right of an accused to a fair trial but the judgment is highly significant to court reporting generally.

In the Irish Times case, Hamilton CJ stated:

While the public nature of the administration of justice and the constitutional right of the wider public to be informed of what is taking place in courts established by the Constitution are matters of public importance these rights must in certain circumstances be subordinated to the interests of justice and the rights of an accused person which are guaranteed by the Constitution.

It is difficult to see what right could be asserted by someone defending section 14 of the 1929 Act against an Article 34 challenge, although Article 40 does say that the publication of indecent matter is an offence which shall be punishable in accordance with law. The offence of blasphemy, also mentioned in Article 40, is contained in section 36 of the Defamation Act 2009 which the then Minsiter for Justice was at pains to stress had to be preserved due to a “constitutional obligation”. Given that the 2009 Act does not deal with publication of indecent matter, one could speculate that the Minister was perhaps aware of section 14 of the 1929 Act and of the opinion that it partially satisfied the constitutional obligation to provide for an offence of indecent publication. Arguably, if the then Minister’s reasoning is accepted, sections 14 and 15 of the 1929 Act must  be retained unless and until Article 40 is amended.

O’Flaherty J, also in the Irish Times case, was of the opinion that freedom of the press is guaranteed under Article 40 “and that the protection in the constitutional provision is not confined to mere expressions of convictions and opinions.” The Supreme Court does not appear to have considered the 1929 Act (despite considering a variety of other laws), but it is hard to see how section 14 be reconciled with O’Flaherty J’s comments.

The purpose of reporting restrictions and in camera rules relied on today are of a different nature than the one contained in section 14 of the 1929 Act. O’Flaherty J noted:

While [various] enactments authorise the exclusion of members of the public, the entitlement of bona fide representatives of the press to attend such trials is preserved. Where a trial involves offences of a sexual nature, while the press may attend, legislation requires that when they report, they must do so in a way that safeguards the anonymity of the parties.

He refers to section 20(3) of the Criminal Justice Act 1951 which allows a judge to exclude the public from criminal trials for offences which are, in the opinion of the court, of an indecent or obscene nature. This sounds like a legislative enactment of the practice referred to by Dr Keating in the Free State era, when judges might invite members of the public to leave a courtroom in the interests of “respect”.

One would have assumed that in a case where section 20(3) of the 1951 Act is invoked and members of the press remain they are free to make accurate reports on the proceedings once parties are not identified. It is hard to see the point in excluding members of the public in those circumstances, if they can subsequently read the indecent or obscene details in a newspaper. However, if a reporter is present in a case in which section 20(3) is invoked and the trial judge is of the opinion that the details of the case are indecent or obscene, it would seem logical that there would be stronger grounds for a prosecution under section 15 of the 1929 Act, but I’m not aware of this ever happening.

Does anyone know more about the 1929 Act?

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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.

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.