Category: Defamation

Defamation, privilege, and a public interest defence, in the Irish High Court

| 16 Comments
| Defamation, Freedom of Expression

Judge Charleton At the end of June, communications consultant Monica Leech lost a high-profile libel action against the Irish Independent; in essence, the jury found that the article in question by Frank Kahn did not bear the defamatory meanings which she had sought to attribute to it. Given the profile of the case, there was much media (Breaking News | Irish Independent | Irish Times (sub req’d) | Irish Times (sub req’d) | RTÉ) and online (Blurred Keys | JC Skinner | Of Laws and Men | Our Man in Gdansk) reaction.

However, there is more to the case than the newsworthiness of a high profile libel loss. In fact, Mr Justice Charleton (pictured above left) made an important ruling during the course of the trial, which as Mary Carolan pointed out in the Irish Times the following Saturday gives more leeway to media on libel defence (sub req’d). The Best of Both Worlds described it as a slight gain for free speech. I think it is rather more than that. I think that it is an important affirmation of the acceptance into Irish law of a defence (which the judge called a “public interest” defence) which has been developing and strengthening elsewhere in the common law world.…

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The manifest destiny of critics’ fair comment

| 9 Comments
| Defamation

'Manifest Destiny' logo via Keith Burstein's site

In my post on defamatory reviews a few days ago, I wrote that critics will usually be able to rely on the defence of ‘fair comment’. Now comes news (hat tip: Daithí) that the Court of Appeal for England and Wales thinks so too!

To be able to rely on this defence, the relevant statement must indeed have been a comment (and recognisably so, as opposed to an allegation of fact, for example); it must have been based on facts that are true (or protected by privilege); it must have been made on a matter of public interest (and the courts are now taking quite a broad view of what constitutes the public interest for this purpose); and it must have been one which could have been made by an honest person (that is to say: it must have been ‘fair’). In a relatively recent important case, Lord Nicholls said of this last requirement:

Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views. It must be germane to the subject matter criticised. Dislike of an artist’s style would not justify an attack upon his morals or manners.

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Unpalatable – defamatory restaurant reviews

| 15 Comments
| Defamation

The food critic orders dinner, from Trevor White's siteI’ve always quite fancied the idea of being a food critic: I like food, and I can be critical (just like the guy in the cartoon on the left ‘The Food Critic Orders Dinner’ – click on it to see it full size in its original context); so what’s not to like? Well, a flurry of litigation in various jurisdictions over the last few months has made me reconsider. The most recent is the decision of the High Court of Australia in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 (14 June 2007) (hat tips: Steve Hedley (off-blog) and the indefatigable Peter Black’s Freedom to Differ) which is making news in Australia for its holding that a restuarant critic can be liable for a defamatory review. There have been reactions of horror, but this is not a remarkable holding at all, either in principle or in practice. …

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Applications for the Position of Press Ombudsman Are Now Sought

| 2 Comments
| Defamation, Freedom of Expression, Media and Communications, Press Council

Press Council and Ombudsman logoThe Business This Week section of today’s Irish Times carries an advertisment (on page 18), under the heading used as the title to thise post, seeking applications for the position of Press Ombudsman. The advertisment is available online here (from Grant Thornton‘s recruitment arm).

The Press Ombudsman is a crucial part of the press industry’s Press Council package, and will be critical not only to the efficient working of the complaints system but also as a consequence to the public legitimacy of the entire project. According to the Press Council website [update (3 January 2008): the website has been redesigned and this link is no longer active]:

The Press Ombudsman

The Press Ombudsman will be appointed by the Press Council, is and will be the public face of Irish press regulation; s/he is the person who will receive complaints from members of the public, consider whether they are valid, and then seek to resolve them to the satisfaction of everyone involved. The Press Ombudsman will deal with the majority of complaints by members of the public, however s/he will also has the option of referring difficult cases (or cases where those involved are dissatisfied with the decision) to the Press Council of Ireland.

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A footnote to Election 2007

| 10 Comments
| Defamation, Election 2007, Politics, Press Council, Privacy

picture-1.pngNow that An Taoiseach (the Prime Minister) has put us out of our misery and finally called the long-awaited general election, all Bills currently pending will fall with the outgoing Dáil (Lower House). Of those of particular interest to this blog, this means that the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) and the Privacy Bill, 2006 (Department of Justice | Oireachtas (pdf)) now both fall too, and their fate will have to await the pleasure of the incoming government in the next Dáil.

The fate of the Defamation Bill, in particular, raises an interesting question for the press industry. The Bill provided for the recognition of a Press Council; the press industry has advanced with the establishment of an Office of the Press Ombudsman and the Press Council of Ireland in parallel with the passage of the Bill through the Houses of the Oireachtas (Parliament); and they will now have to decide whether to continue with this process now that the Bill has fallen. They could of course keep their powder dry until after the election, in the hope that the incoming government revives the Bill, and then press on with the formation of the Ombudsman and Council.…

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Criminal Libel in Mexico and Ireland

| 1 Comment
| Defamation, Media and Communications

Eagle from The Herald, Mexico, via mexiconews.com.mxIreland is not the only country where defamation law is undergoing reform. I learn from Media Law Prof Blog that libel is no longer a criminal offence in Mexico:

Mexican President Felipe Calderon has signed into law a federal bill that decriminalizes libel.

The new legislation changes the centre of gravity of Mexican libel law from criminal to civil, so that defamation actions will in future be civil disputes between a plaintiff and a defendant, rather than criminal matters.

In countries such as Mexico in the Civilian tradition, defamation is often a criminal rather than a civil matter; whereas, in countries such as Ireland in the Common Law tradition, it is usually a civil matter. Nevertheless, even in common law countries, defamation can occasionally have criminal consequences; and there is still a crime of libel at Irish law (see, for example, the Law Reform Commission‘s Consultation Paper (html | pdf) and Report (html | pdf) on the Crime of Libel). However, Part 5 of the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) proposes to abolish the crime of libel (section 34) and replace it with a considerably more circumscribed crime of publication of gravely harmful statements (section 35).…

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Filibustering the Defamation Bill? Surely not?

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| Cinema, television and theatre, Defamation, Irish Law, Irish Society, Media and Communications, Politics

Poster for 'Mr Smith Goes to Washington' via AOLFilibuster: (noun) an action such as a prolonged speech that obstructs progress in a legislative assembly while not technically contravening the required procedures.

The word originates in words of piracy, such as the French ‘flibustier’, the Spanish ‘filibustero’ and the Dutch ‘vrijbuiter’, all etymologically equivalent to ‘freebooter’. The 1939 movie ‘Mr. Smith Goes to Washington‘, directed by Frank Capra (nominated for two oscars for this movie), stars Jimmy Stewart, in his patented role of a young naif, this time oscar-nominated as a newly elected Junior Senator Jefferson Smith. The climax of the movie is a filibuster staged by Mr Smith in the Senate so that there would be enough time to expose the corruption of his mentor, Senator Joseph Harrison Paine, played by the also oscar-nominated Claude Rains.

I have already commented on the slow progress of the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) and the number of red herrings in the debate, and concluded that it had become increasinlgy unlikely that the Bill would be enacted before the election. Now, from yesterday’s Order of Business in the Seanad (html | pdf to follow | Irish Times report (sub req’d)), a cynical explanation: a filibuster!…

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