Ireland's defamation laws 'not fit for purpose'

“Defamation Law is about balancing two competing rights and one is the Constitutional right to freedom of expression and the other is the Constitutional right to protection of reputation,” she told RTE radio’s Morning Ireland.

“I would agree that the law isn't fit for purpose, that stories aren't being published because there's a fear of the defamation actions that would follow. Frequently we advise our clients to settle because the financial risk of going to court is just way too high.”

The former editor of the Sunday Business Post, Ian Kehoe said that the problem with the existing defamation laws is that most people could not afford to take a case.

“If you're a normal person it's of no use to you because if you take a case against a newspaper, if you lose that you're going to be bankrupt. The costs associated with it are prohibitive.

The only people who can take cases in Ireland at the moment are the extremely rich, the rich and the powerful, multi-millionaires or if you're a bankrupt and have no money whatsoever.

“It's not serving normal people, middle Ireland, the 99 per cent of the country and it's not serving newspapers either because you're still looking. Every time I edited for four or five years, every time you publish something or you get a legal letter in, you're looking at it and saying that has the potential to shut my newspaper down.

“Whether I'm right or wrong, just the potential, throwing the dice in a lottery and going down to court has the potential to shut it down. That the costs are so prohibitive. You're essentially playing a game of chance every time you get a letter in.

“It's not serving either a newspaper nor is it serving the people. Nobody is saying that we should just get rid of defamation laws, there has to be responsibility on behalf of all media, but it has to be fit for purpose and it's not fit for purpose for either the people or the news organisations.”

He admitted that quite often he had made the decision not to print an item. Another issue, he added was secret settlements.

So you publish something, you get a legal letter in and you pay off the €10,000, €15,000, €20,000 to avoid any further action and the legal advice is if you go to court you'll win but you can't afford to take that chance to go down and spend four or five weeks in the court with a jury trial and hope that you win.

“All over Ireland media outlets are blighted by secret settlements where you just pay somebody to go away even though the legal advice is that you're right because you can't afford to go to court.”

He said that in relation to the recent case he had successfully defended against businessman Denis O’Brien the newspaper had been lucky to have libel insurance and the backing of the insurers.

“Had we not had libel insurance you were literally putting 50 jobs on the line by going to court. We felt we were right, we felt it was the right thing to do, but had we not been in a position to have a financial backstop by insurance we wouldn't have been able to afford to take the chance to go down to court.”

Ms Martin called for the abolition of the use of juries in defamation cases.

“I think juries should not be deciding these cases, because there can be an emotional gut reaction 'oh that was very unkind, that was a nasty thing, that was a very hurtful thing to publish about somebody' but that is not the same as being defamatory and newspapers are being punished for saying things that could be harsh, unkind, hurtful - I don't think juries should be hearing these cases.

“Individuals should be required to show that they've suffered serious harm to their reputation, not just maybe harm, serious harm to their reputation, before they can bring an action,” she added.

There was a built-in five-year review of the Defamation Act of 2009, it took place in 2016, submissions were made by numerous outlets and interested parties. Those submissions need to be dusted off and taken seriously by government and some action taken.

When asked what was his definition of a good defamation law, Mr Kehoe said it was one that holds newspapers to account, but doesn't stop them from doing quality journalism and proper journalism.

It is also one that is fit for purpose so if a person has been genuinely defamed they have recourse. He said that one of the things he found staggering in relation to the O’Brien case was that the businessman had not had to prove that any articles harmed him.

“That's something that should be introduced. It needs to be fit for purpose for news organisations to do their job, but also where there are genuine areas where somebody has been impacted that they have a right to a quick response and that it is easy to get it fixed.”