Brendan Howlin (Wexford, Labour) | Oireachtas source

As legislators, we approach the whole area of defamation law reform guided by two constitutional values. First, there is the citizen's right to protection and vindication of his or her good name under Article 42.3. Second, there is the right of the citizen to express freely his or her convictions and opinions, which is guaranteed under Article 46.1. The Bill before the House must be judged by reference to both these provisions. Does it respect both the right to protection of one's reputation as well as the freedom of expression we all enjoy? Does it truly give meaning and effect to both provisions?

It is important to note an allegedly defamatory statement is, at least at the start, protected in principle by the Constitution as an expression of conviction or of an opinion. However, if a court decides at the end of a trial that the statement is both defamatory and wrongful and that none of the defences protecting free speech applyies when the court then comes to assess damages for defamation it does so only after it has decided first, that the words are not true and so are not subject to any constitutional protection as bona fide expressions of conviction or opinion; and the Constitution does not protect defamatory statements under the guise of free speech.

It is important to note the European Court of Human Rights confirmed that jury trials are an entirely legitimate way to assess defamation cases and that it was not its task to call into question that national legislative choice to retain and have juries make these decisions. There have been issues for the European court as to the nature and extent of the direction given to juries to protect against disproportionate awards. The European court has welcomed the fact that since 2009 it has been possible for a trial judge to give more detailed instructions to a jury as to the assessment of damages in this jurisdiction, and the European court has never argued for the abolition of juries.

It is also important to note the changing times. Previous reviews, and this most recent review, have been based on defamation law as experienced by traditional media, which is often on the receiving end of it. The traditional media have traditional and increasingly old-fashioned views on these matters. For all the sympathy one might have for an Irish newspaper when hit with a very large damages award it claims to be excessive; is there anyone in this House who sympathises with Alex Jones, the notorious far right conspiracy theorist who claimed the US authorities had falsified the 2012 Sandy Hook Elementary School shootings and that they were all a fiction in which 20 students and six staff members died, and who, in the American courts, had a total of $1.48 billion in damages awarded against him and has since filed for personal bankruptcy?

The sort of concerns we may have about financial viability of responsible news outlets have little or no bearing in the age of so called "citizen journalists" and citizen journalism promoting online, far right agitprop and hate. Our laws already provide for a reasonable distinction to be made along these lines insofar as they already allow for a defence of fair and reasonable publication on a matter of public interest, a defence that is custom made for bodies that belong to the Press Council of Ireland and that abide by its code of conduct.

It may be, however, that we should consider strengthening that defence, but the concerns of the bodies that belong to the Press Council of Ireland are a world away from the vitriolic assaults on reputation that are now being made online and in the social media world, and which, according to the Tánaiste, constitute a public health threat of our time.

The purpose of this Bill, as set out in its Long Title, is to provide that defamation actions in the High Court may not be tried by a jury, and to give effect to the EU anti-SLAPP directive. As to its first stated purpose, this Bill is based on recommendations by the in-house review of the Defamation Act 2009 that was published by the Department of Justice in March 2020. Importantly, that report was published two years before a significant judgment by the Supreme Court, which has been referenced both by the Minister and the Sinn Féin spokesperson, in the case called Paidraig Higgins v.Irish Aviation Authority, where the lead judgment was delivered by Mr. Justice John MacMenamin on 7 March 2022.

It seems that there is a significant respect in which that report and this Bill are simply out of date. I am referring to the principal recommendation, which is the abolition of juries in defamation cases. There are aspects of this argument that those of us with long memories will recall well. The Courts Act 1988 abolished juries for personal injuries while retaining juries a small number of important cases, such as false imprisonment defamation. Then, as now, we were promised that this particular reform, which I remember well, would reduce the incidence of excessive or disproportionate awards, significantly reduce delays and legal costs, reduce the length of hearings and provide greater clarity and certainty, which would facilitate earlier settlements of cases. Of course, as we know and has been stated by others, it did nothing of the sort. Road traffic and public liability insurance premiums continued to soar for decades after that much-trumpeted and much-sought after reform. We only managed to put some meaningful reform of control in place when we introduced, first, the book of quantum and, second, personal injuries guidelines, and we still have a long way to go on that. I do not know whether the competition authority might play a more vigorous role in ensuring that all the demanded reforms, once delivered - by God, there has been a slate of them in that regard - should have the consequences that were promised.

I recall that in 2016 the Competition and Consumer Protection Commission opened an investigation into the anti-competitive practices in the market for private insurance in this State, contrary to both domestic and EU law. The commission has since secured legally binding commitments from six parties that were under investigation for price signalling practices. That is why the Supreme Court judgment in the Higgins case is so important. The Department's review of recent defamation law includes aspects of the Higgins case as decided in the High Court and in the Court of Appeal, which was referenced, and an earlier but different point in the Supreme Court but it does not deal with the Supreme Court judgment, nor could it.

In that case, the Supreme Court, for the first time, categorised general damage awards in defamation cases as falling into four general categories or ranges. The first and lowest applies to what was termed “moderate defamation” and was for awards of €0 to €50,000. A second band in the medium range of cases was for where awards of €50,000 to €125,000 were deemed to be appropriate. A third category of award deals with seriously defamatory material where the perimeters range from damages of €125,000 up to €199,000. The very top scale of awards is in cases of the most egregious defamation, in which awards in excess of €200,000 could be made before the courts, seldom awarded more than €300,000. Finally, the Supreme Court recognised cases that it said must be seen as being truly exceptional, where there was a very real damage to the individual's reputation, and where clearly the balance tilted decisively in favour of the vindication of good name. In those exceptional cases, a higher reward could be justified.

There is very little subsequent case law on defamation, I am informed. These cases are not a feature of the daily life of our courts and there are very eminent members of the Bar in this House who will be able to attest to that. The judgment in the Higgins case should be given some time to bed down. It needs to be applied, and that application needs to be assessed, as does how the courts actually deal with those very clear guidelines. We should not rush into this particular reform, namely, the abolition of juries, when the latest reforming judgments have yet to be truly embedded in our system and to be truly assessed. What we do know is that the law, as set out in the Higgins case, is for now the law, and that nothing in this Bill will attempt to change that law. It does not matter whether future cases are heard by a jury or a judge sitting alone. Either way, the law requires that, as set out by the Supreme Court, there are four bands of awards under which any proven defamation will lie. If the substantive law is not changed, it will continue to be applied, whether it is by juries or by a judge sitting alone. Even in its own terms, therefore, I do not see how this change will affect the level of damages awarded in future cases, since they will continue to be awarded in a manner set down by the binding decision already on the statute book, if you like, of the Supreme Court.

Incidentally, the Paidraig Higgins v.Irish Aviation Authority case is also a good example of why we should not address defamation reform purely from the vantage point of the traditional media. The plaintiff in that case was an airline pilot who was seriously defamed in his professional standing and in terms of his compliance with the law and regulations, not by any media, but by a State agency in its external and internal emails. There was no media involved on either side of the case. As the Supreme Court pointed out:

The conduct and words in question bear some comparison to misfeasance in public office. The acts here were committed by a public official in the conduct of his work.

I therefore strongly believe we need a set of defamation laws that can protect us against the overweening and invasive actions of public bodies just as much as we do from the overweening and invasive action of certain media. It is for these reasons that I am opposed to sections 4 and 5 of this legislation, the provisions of which would abolish civil juries in defamation actions. In a 2017 case, McDonaghv. Sunday Newspapers Ltd., Mr. Justice MacMenamin noted:

The right to a good name, freedom of expression and public opinion are closely connected concepts, in which the concept of ‘the view of right thinking people’ are inherently part of the test. Juries are intended to reflect the views of the public. They represent the public mind and public opinion in balancing the constitutional values embodied in statutory form. This ‘public dimension’ is of great relevance in measuring whether a publication is actually defamatory at all; if it is, whether there is a defence to it; and if a publication is found to be defamatory, the measure of damages.

That is a really profound statement from him. If the measurement is the standing of the person with the public view, who is better able to decide it? Is it a judge who is, with all due respect, not the most typical representative of people or is it a cross-section of the Irish electorate or the Irish people as a jury that would be selected?

They are the people who will understand the value of a person’s good name in a pub, in a clubhouse and so on with a much more real value judgment than, I would submit to the Minister of State, any judge who is not exactly drawn from the broad strata of public life. We have seen and heard nothing from the Government that justifies disturbing the status quo.

I broadly welcome the second objective set out in the Long Title as regards the anti-SLAPP directive, as does my party. It is important to note that these provisions do not change the law as to what is and is not defamatory. Nor do they make any changes to defences of privilege that might apply. They make procedural reforms so as to safeguard against plaintiffs who pursue unfounded claims and to allow a court to strike out at an earlier stage what it determines to be manifestly unfounded claims or abuses of process. It is ironic that that great free speech warrior, Elon Musk, was himself, if the Leas-Cheann Comhairle will pardon the pun, slapped own by US courts for launching proceedings of these kinds. This initiative is worth pursuing at both Irish and EU levels and we will await to see how it progresses.

The anti-SLAPP directive does not change the substantive law. The rich and powerful - even Mr. Musk - have a right to defend themselves against defamation, and if they are defamed, they have a right to recover damages. The laws of defamation must, if they are to be seen to be effective, be seen to have a dissuasive effect on shoddy, careless or, more importantly, vindictive journalism or reporting.

I wish to single out another amendment in the Bill that will replace the definition of "periodical" so as to allow for the inclusion of online-only publications. The Journalhas been a welcome addition to the Irish news media for some time. It is a member of the Press Council, subscribing to the Press Council’s code of conduct since its inception. It is good to see the amendment, which clarifies the entitlement of online-only publications to be such members.

It is now the case, and I fear will remain so, that the defamation law is too complex and too cumbersome. Cases are expensive and time consuming, and because of the cost involved, they are well beyond the reach of ordinary citizens. For participants on both sides, the stakes committed are enormous. While I accept that there is an argument for some awards being too high, I also believe that we should do much more for cheaper and greater access to the law.

The first purpose of reforming legislation should be to ensure that more cases are heard and decided on their merits expeditiously in the most convenient and appropriate venue and at an affordable price. For the great bulk of Irish people, if they are defamed, they cannot dream of taking a case because the exposure they would have financially would be well beyond their capacity. Was it a distinguished former President of the High Court who said that, in this country, you had to be a pauper or a millionaire to pursue legal proceedings? That was amended by a subsequent utterance when he said he believed it had increased to a billionaire now. I hope this matter will be on the reform agenda as well.

We should also consider whether to create a defamation jurisdiction in the District Court. We should take a hard look at the Civil Legal Aid Act 1995, which lists designated matters in respect of which legal aid may not be granted by the Legal Aid Board. The refusal to cover defamation under the legal aid scheme is based on a prim notion that, like polo or fox hunting, suing for defamation is an esoteric and expensive pursuit to be contemplated only by those who can afford the costs. This attitude is completely at variance with the constitutional obligation of the State to vindicate the good name of every citizen. Given the constitutional status of the right to one’s good name, the exclusion in the list of civil legal aid accessibility is unjustifiable and should be deleted. There are more than enough safeguards in the Act to ensure that legal aid is not used to fund frivolous or spurious actions.

The Minister of State has indicated that there are three more amendments to come. Introducing fundamental principles on Committee Stage that have not been examined during pre-legislative scrutiny or on Second Stage is not a good way to make law.

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