The Attorney General, Máire Whelan, yesterday called for a debate on the question of whether reports of court proceedings should be actionable in defamation only if there is proof of malice (Irish Independent | Irish Times | RTE). She made her call as part of her comments marking the retirement of the outgoing President of the High Court, Mr Justice Nicholas Kearns. Rather predictably, an Irish Independent editorial praised her “timely and insightful address” and her “welcome and refreshing” observations, bemoaned “telephone number” legal fees and “massively punitive” damages awards, and argued that a “review of defamation laws is long overdue”.

A long-running review of defamation was concluded by the Defamation Act, 2009 (also here), which came into force on 1 January 2010. Section 5 (also here) of the Act provides

(1) The Minister shall, not later than 5 years after the passing of this Act, commence a review of its operation.

(2) A review under subsection (1) shall be completed not later than one year after its commencement.

According to the definitions in section 2 (also here), the Minister in question is the Minister for Justice and Equality. Although the deadline in section 5 has passed, a review does not yet seem to have been commenced. But section 5(1) is directive, and mandatory: the Minister “shall” do so. It will be interesting to see if the issue features in any of the parties’ manifestos for the forthcoming general election. Whether it does or not, the Minister for Justice in the next government will have to review the operation of the Act. And, as part of that process, the Attorney General’s comments yesterday will have to be taken into account.

Her comments were directed to the position of court reporters. She said that they perform an “important public service” and one of the “most challenging assignments in journalism”. And she argued that reform of the defamation laws was necessary to avoid a “chilling” impact on the level and quality of court reporting people in Ireland “expect, and enjoy”. She pointed out that Article 34.1 of the Constitution requires that justice be administered in public. And she argued that reporters should not have to fear that a “simple oversight, omission or error” in reporting court proceedings could expose them to risks of litigation, or claims in damages, with consequent risks to their livelihood. She therefore called for a debate on the possible reform of Irish defamation law, by introducing a provision that no report of court proceedings should be actionable in defamation unless there is proof of “malice”. In particular, she suggested that plaintiffs seeking to sue over court reports should be required to seek leave of the courts to do so and to demonstrate, in sworn documents, the bad faith alleged. She said that the time has come to review our laws of defamation

to ensure the public interest is fully served and the values and aspirations enshrined in Article 34.1 are not debased or compromised, or diluted, by fears of concerns on the part of any journalist or court reporter that a simple oversight, omission or error in reporting court proceedings exposes them to risks of litigation, or claims in damages, thereby risking their livelihood with the trauma and attendant uncertainty, and stress, pending conclusion of such claims.

Section 17(2)(i) of the 2009 Act (also here) provides that “a fair and accurate report of proceedings publicly heard before, or decision made public by, any court” attracts the defence of absolute privilege. The Attorney General’s point is that, in working to very deadlines, inaccuracies may creep in, potentially bringing the reports outside the ambit of section 17(2)(i). It may be that the Constitutional requirement that justice must be administered in public (Article 34.1), and the watchdog role of the press in giving effect to this requirement (Irish Times v Ireland [1998] 1 IR 359, [1998] 2 ILRM 161 (2 April 1998) (doc | pdf)) could generate a beneficent of section 17(2)(i), such that simple oversights, omissions or errors do not lose the benefit of the privilege. But the Attorney General’s solution would not wait for litigation to establish this. Instead, she effectively suggests the addition of a further qualified privilege, which would provide a defence in such circumstances. It could easily be added to the list of qualified privileges established by section 18(3)(a) (also here) and set out in Part 1 of Schedule 1 (also here). That defence is lost where the plaintiff proves that the defendant acted with malice (section 19(1); also here). It would be not be difficult to add to this section the Attorney General’s suggestion that leave should be sought for such actions. And thought could be given to extending this requirement of leave to other allegations of malice. Moreover, section 8 (also here) already requires that plaintiffs swear an affidavit verifying assertions or allegations of fact upon which their cases are based. Again, it would be not be difficult to add to this section the Attorney General’s suggestion that plaintiffs seeking to defeat qualified privilege should swear an affidavit verifying alleged malice. And thought could also be given to extending this requirement for a verifying affidavit to other allegations of malice.

These, or similar, amendments could easily be achieved as part of a review of the Act under section 5. The Attorney General’s speech was much more narrowly focussed than the headlines suggested. Her comments related to court reports, whereas the headlines suggested that she had called for much more wide-ranging reforms. However, for all that, there is something in the Irish Independent‘s editorial that a “review of defamation laws is long overdue”. Many other reforms of the 2009 Act should also be contemplated as part of any review under section 5. In an occasional series in the new year, I’ll have some suggestions to make about what might be considered in that process.