posted 5 Apr 2007 in Volume 9 Issue 10

Country report: Developments in Irish media law

By Michael Kealey, solicitor, William Fry Solicitors

To invert a well-known phrase, the Irish media must feel that life does not open one door without slamming several others.

After waiting almost 15 years for reform of Ireland’s arcane defamation laws, the press was faced with a two-pronged attack – increased judicial scrutiny of intrusion into private lives and calls at cabinet for privacy laws to be put on a stronger, statutory footing.

At the time of writing, the Defamation Bill 2006 (expected to be enacted by May) was passing through the Irish parliament. It replaces an outdated 1961 statute. Given that this Act is a copy of UK legislation from 1952, it was little surprise that the Law Reform Commission concluded the law failed in both of its core functions – to vindicate the good name of individuals and to facilitate the
free expression necessary in a functioning democracy.

In its most radical and controversial proposal, the Bill provides for the recognition of an industry funded Press Council (a similar scheme already exists for broadcasters). Of a 13-person council, a majority (seven) will be independent of the media; six will come from the industry. A full-time press ombudsman will hear complaints from the general public. It is promised that decisions will be “fast, free and fair”.

The press has already published a code of practice to which the ombudsman must have regard when hearing complaints. It sets out broad principles in ten core areas, including accuracy, fairness, children, incitement to hatred and privacy.

The new Bill abolishes the distinction between libel and slander. The limitation period for bringing actions is also reduced and will be consistent – one year, which can be extended to two in exceptional circumstances. It is currently six years for libel and three for slander.

Instead of damages, an aggrieved party can now seek a correction order forcing a media defendant to publish a statement that what was published was untrue and defamatory. Under the old law, while large awards might be made, the press could not be forced to correct or apologise. There will be a speedy procedure for seeking such orders.

Juries will continue to hear libel claims and to decide the level of damages. However, they will now be presented with a range of factors to guide them, which should lead to greater consistency in awards.

The Bill allows the media a number of defences not previously available, most notably “fair and reasonable publication on a matter of public importance”. This new defence – a form of qualified privilege – flows from a decision of the House of Lords in the UK, ironically when a former Irish Prime Minister, Albert Reynolds, sued the Sunday Times. It is known colloquially as the ‘Reynolds defence’. This gives the press immunity from suit, even when a report is factually incorrect and has therefore been characterised as “the right to be wrong”. However, the defence is available only where journalists have acted in a responsible and reasonable way and have met tough statutory criteria.

While the right to privacy is already protected under the 1937 Irish Constitution, its impact upon the media has been particularly felt following incorporation into Irish law of the European Convention on Human Rights in 2003. The right to privacy is explicitly recognised in Article 8 of the Convention.

Decisions in the UK courts (which have persuasive value here), particularly in the case by Naomi Campbell against the Daily Mirror, and of the European Court, most notably Princess Caroline’s case against some German magazines, have changed how the press does business.

Thus, U2’s guitarist, The Edge, obtained an injunction stopping an Irish tabloid revealing details of an illness being suffered by his daughter. There are increasing privacy complaints by those in the public eye and the pre-publication injunction has become a favoured legal tool of celebrities.

To many observers, the era of ‘kiss and tell’ and chequebook journalism is, if not dying, certainly ill. For the press, the most difficult decision now is whether to risk an injunction by seeking a comment from a celebrity or the prospect of defending a libel claim without having put allegations to the other side.

However, there have been some press victories. Last summer, the owners of a nursing home sought to stop the broadcast of a television programme that made serious allegations about its operation and treatment of elderly patients. They claimed that secret filming breached their right to privacy. However, the High Court decided that the issues raised by the programme were of such significant public interest that it should proceed.

Further, the Privacy Bill, much promoted by members of Government as a quid pro quo of libel reform, and which would have further strengthened privacy rights, has been put on the backburner to give the Press Complaints Council the chance to work.

For this year’s freedom of expression school report, the teacher’s note is “some improvements but could try harder”.