Dáil debates

Wednesday, 11 May 2022

Defamation Act 2009 Review: Statements

 

2:27 pm

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour) | Oireachtas source

Forgive me for rushing in. Wednesdays seem to be one of those days. I was just at the launch of our committee report. I am switching my brain to something else. The issue of defamation is a very important subject. Defamation laws are always an extremely difficult policy issue to deal with in respect of balance when it comes to the right of free speech and fair comment, which must be available, especially to the press.

It is an extremely important bedrock of any democracy to have an uninhibited free press. Balancing those sets of fundamental rights against the right of persons to their good name and privacy is sometimes very difficult to achieve. I acknowledge that because it has been debated many times in these Houses.

The last attempt made at striking a balance was the 2009 Act. That Act set out nine defences against a legal action for defamation, some of which are obvious. Truth is a defence. So, too, is absolute privilege, which allows those of us in this House to speak without let or hindrance. There is also the defence of qualified privilege. Honest opinion is a shield if a statement is proven to be honestly held and believed. Fair and reasonable publication on a matter of public interest is a defence if it can be proven the statement was made in good faith on a public interest matter for the benefit of the public and published in a fair and reasonable way. I will not go through all the defences because I do not have time.

When the 2009 legislation was enacted, it seemed to me to contain a reasonable checklist of defences with which somebody could shield himself or herself in court from an act of defamation. To deal with the relevant issues, we set up several regulatory bodies, such as the Press Council of Ireland, the Office of the Press Ombudsman and the Broadcasting Authority of Ireland, all of which were given specific responsibilities to ensure the freedom of the press while accounting for what is the right of citizens in any functioning democracy to their good name.

By and large internationally, defamation laws weigh against free speech. By and large, there is a chilling factor of action against public comment. Over generations, this has been at the root of allowing nefarious activities to continue, because people could not gather sufficient evidence to shield themselves against an action for defamation. In public policy terms, that has ill served many democracies. Therefore, I strongly welcome the review under way and, more important, what might flow from it.

Unfortunately, because I was running between Oireachtas duties, I did not hear the Minister’s comments, but I will read them. I did not get from the review a sense of clarity of action. I will touch upon that in the couple of minutes I have. The outworking of the 2009 Act has raised specific concerns. When I entered the Chamber, some Members referred to the sizes of awards, but in many instances their concern has been addressed by the action of the Court of Appeal. It has very significantly reduced awards. Most of us have not sat in on or heard fully the cases that have been determined, or noted the awards juries have made, but the Court of Appeal has the right to re-evaluate those. It has very effectively done that.

We must now be cognisant that the nature of media is changing with social media, including Twitter, Facebook, Telegram, Instagram, TikTok and so many others I probably do not know about. We need to change our perspective on what constitutes defamation in the context of platforms that are internationalised but that have an impact in our own jurisdiction. I worked with the Minister on enacting the harassment, harmful communications and related offences legislation, the so-called “Coco’s law”, which was a milestone in changing and protecting people against serious harm or what I would call online assault, but defamation is obviously a different type of assault on the good name of somebody.

I have a minute left in which to deal with the outcome of the review and the recommendations made therein. I cannot do it any justice in the time. Regarding juries and damages and the specific recommendations on taking defamation and court proceedings, there are a number of subsets to all the defences promoting alternatives and special measures regarding online and non-online defamation.

I will end as I began. This is an extremely complicated issue to get right. At stake is the potential to destroy somebody’s good name, which can never be retrieved in some instances, but also to protect wrongdoing if there is no obvious protection for free speech. I look forward to hearing, and maybe to having more time than six and half minutes in which to tease out, the views of the Minister when the legislation is produced and presented.

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