Category: Defamation Act 2009

SI No 511 of 2009: Rules of the Superior Courts (Defamation) 2009

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| Defamation, Defamation Act 2009, Multiple publication

Courts Service logo, via the Courts Service site.One of the reasons for delaying the coming into effect of the Defamation Act, 2009 from 23 July 2009 when it was signed by the President until 1 January 2010 was the need to amend the Rules of the Superior Court to provide for the changes to practice and procedure which it requires. Those changes are effected by SI No 511 of 2009: Rules of the Superior Courts (Defamation) 2009 (pdf). It inserts a new Order 1B in, and amend Order 22, Order 36 and Appendix B, Part II of the Rules of the Superior Court) to facilitate the operation of the Defamation Act, 2009. In particular, it makes provision for

  • verifying affidavits under section 8,
  • the procedures relating to various applications under sections 11 (multiple publication), 14 (meaning), 33 (prohibition order), and 34 (summary application), and under section 11(2)(c) of the Statute of Limitations 1957 (as amended by section 38),
  • applications under section 23 relating to offers of amends,
  • notification of evidence of apology under section 24, and
  • particulars of evidence in mitigation (amending Order 22 RSC).
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O’Rorke on the Defamation Act

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| Defamation, Defamation Act 2009, Defamation Bill 2006

Irish Times clock, image originally hosted on Irish Times websiteWriting in today’s Irish Times, Andrew O’Rorke, Chairman of Hayes Solicitors who are that paper’s legal advisors, welcomes the recent commencement of the Defamation Act, 2009 (much as the Editor did at the time of its enactment):

Defamation Act will facilitate more sensible, efficient justice

… The impetus to change the law on defamation originated in 1987. … Government has always been suspicious of media’s perception of its own importance to society. It is an uneasy relationship, which has probably deteriorated in recent times with the increasing examination and analysis of executive action and conduct. There was a marked reluctance to proceed with new legislation, as is evidenced by the almost 20-year gap in finally introducing the Bill in 2006 and the delays since then, …

Freedom of expression is a fundamental right, a cornerstone of any democratic, tolerant society, and when sought to be exercised by journalists it should be for the benefit of and on behalf of that same society and the public’s right to know. It is a precious right, but not one that can be exercised in defiance of others’ rights and certainly not if it vilifies another person or paints an untrue picture of that person, their character or actions, which is the essence of defamation.

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Defamation Act 2009 (Commencement) Order 2009 (SI No 517 of 2009)

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| Defamation, Defamation Act 2009

Department of Justice logo, via the Department's website.The long wait is nearly over. The Defamation Act 2009 will come into force on 1 January 2010. From the Department of Justice [pdf]:

Defamation Act 2009 (Commencement) Order 2009 (SI No 517 of 2009)

I, Dermot Ahern, Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by section 1(2) of the Defamation Act 2009 (No 31 of 2009), hereby order as follows:

1. This Order may be cited as the Defamation Act 2009 (Commencement) Order 2009.

2. The 1st day of January 2010 is appointed as the day on which the Defamation Act 2009 (No 31 of 2009) comes into operation.

Given under my Official Seal,
15 December 2009.

DERMOT AHERN,
Minister for Justice, Equality and Law Reform.

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O’Dowd on Defamation

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| Defamation, Defamation Act 2009

Cover of Journal of Media Law, via IngentaJohn O’Dowd of the School of Law, UCD, is first into print with a detailed analysis of the Defamation Act, 2009 (pdf): see “Ireland’s New Defamation Act” (2009) 1 (2) Journal of Media Law 173-190. Here’s the abstract [with added links]:

The Defamation Act 2009 [pdf] places the law of defamation in Ireland on an almost completely statutory footing. It results from almost 20 years’ analysis and debate, starting with two Law Reform Commission reports in 1991 [tort of defamation html, pdf; criminal libel html, pdf]. During those two decades, some of the Commission’s proposals were overtaken by judicial development of the common law of defamation, notably by the emergence of the Reynolds [see Reynolds v Times Newspapers [2001] 2 AC 127, [1999] UKHL 45 (28 October 1999)] defence. The Act reflects a determination to take account of such changes, particularly in respect of Reynolds. The Act is distinctive through the reference which it makes to the Press Code of Practice, the Press Ombudsman and Press Council established in 2008 [link]. Those were the response of the press to proposals made to the Government for a statutory press council with regulatory powers over periodical publications.

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Defamation and the Constitution

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| Defamation, Defamation Act 2009, ECHR, Freedom of Expression, Irish Law

Coat of Arms, Ireland (the image on the cover of the Constitution) via Wikipedia“Predictions are difficult, especially about the future.” I have seen this variously attributed to Neils Bohr, Sam Goldwyn, and Yogi Berra. Whoever said it, it contains a grain of truth: when it comes to the future, all we can do is speculate. In my paper for last Saturday’s conference on Recent developments in Irish Defamation Law, I speculated on the prospect that the Defamation Act, 2009 (pdf) may be unconstitutional or incompatible with the ECHR in some important respects.

In Steel and Morris v UK 68416/01, (2005) 41 EHRR 22, [2005] ECHR 103 (15 February 2005) (the infamous McLibel case) the ECHR held that the applicants’ rights under the Convention had been infringed by the failure to allow them legal aid, in an inflexible presumption of falisty (affirmed here), and in the rule that a body corporate taking a defamation action need not prove special damage, in all three cases because these rules compounded the significant imbalance which they faced in defending a defamation action being taken against them by a multinational corporation (McDonald’s).

In Ireland, defamation is absolutely excluded from the legal aid regime by section 29(8)(a)(i) of the Civil Legal Aid Act, 1995 (also here), and the 2009 Act does not ameliorate this in any way; but since there is no constitutional right to civil legal aid at Irish law, if it is invalid, the remedy is a declaration of incompatibility with the ECHR under section 5 of the European Convention on Human Rights Act, 2003 (also here).…

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