Charlie Flanagan: Ireland’s defamation law is in 'clear need' of review

Ireland’s 2009 defamation act was brought into legislation to replace the offences of libel and slander, and to strike a balance between the right to a good name and the need for a free press.

However the Act has proven to be a controversial one in practice, primarily to the large and oft-times random size of compensation payouts as mandated by juries with little guidance from the judiciary.

That in turn has led to a perception of the chilling effect on media organisations when faced with potentially costly legal cases taken by wealthy litigants, and even more punitive damages.

Mr Flanagan was introducing a symposium on defamation in Dublin, and said that the event would be, he hoped, the “final phase” of his Department’s “reflection on what changes should be recommended” to the 2009 Act.

Of chief importance to the discussions, along with the much-discussed need for balance between freedom of expression and the right to good reputation, were the need for alternative dispute resolution processes, and the rise of online defamation, most specifically in the context of social media which has changed and grown immeasurably since 2009.

Professor of Law at Trinity College Dublin Neville Cox suggested that the main change required of the Act, if not a cap on the amount of damages payable, should be amended guidance for juries.

He suggested that juries be perhaps asked how long it would take someone to earn the amount of damages they had in mind, as a means of contextualising the award, and that the Act be amended to create a list of factors “such as these things to which a jury might explicitly be referred”.

Dr David Kenny, also of Trinity College’s School of Law and a participant in a panel discussion at the symposium, said that he “would be in favour of doing away with juries altogether”, but with that not being an option a system of “very significant, almost instructional guidance” is necessary.

He cited the case of communications consultant Monica Leech who won €1.9m in damages from Independent News and Media in one of the State’s largest-ever defamation payouts, which was subsequently reduced to €1.2m by the Supreme Court on appeal.

“Given the cases where the courts have had to dramatically reduce compensation payments, it seems odd that no guidance is being offered,” Dr Kenny said.

He said it is “difficult to blame” juries as they “are not given a lot to work with”.

“Hardly anyone serves on a defamation jury twice, in a way we’re leaving them at sea and at large, it’s not their fault that they come up with stuff which then has doubt cast upon it.”