The European Commission warns that the freedom of expression and a free press are severely limited by current Irish legislation.
The Commission recently published its ‘2020 Rule of Law Report’, which pointed the finger at Ireland’s defamation law, asking for reforms. A process of review of defamation legislation has been underway for a long time and is likely to come to a conclusion in the near future.
The main object of concern is the 2009 Defamation Act. The Act makes Ireland one of the most restrictive countries in Europe on the issue. Ireland is, for instance, the only country in the EU where defamation cases are brought before a jury. This creates a situation where defamation cases can be extremely expensive for publishers to defend. However, since they are not only linked to high costs but have become frequent as well, it is feared that the media ends up censoring itself. This poses a serious threat to investigative journalism. The report by the European Commission also makes it clear that corruption is a problem in Ireland, stating that ‘Ireland’s defamation laws raise concerns as regards the ability of the press to expose corruption’.
If a publisher were up against a wealthy person, the latter individual would be able to bankrupt the former. In practice, once proceedings are issued in court, there are two options. Either the trial ends up before a jury, where no one can be sure what the final verdict will be, or an agreement is reached between both sides, with the publishing company retreating, apologising and reaching for a settlement. At some point, most publishers will be forced to go for the second option if they do not want to risk ruining their finances. An immensely wealthy opponent can choose to prolong the trial for a long time, which can force the publishing company to settle, thus winning the case, regardless of whether they are right or wrong. The whole process can end up costing the publishing house hundreds of thousands of euro.
The consequence that the report draws from this is that defamation cases may have "a chilling effect on media’s right to freedom of expression and therefore require particularly careful scrutiny" -the threat of being possibly sued would be sufficient to provoke anticipatory obedience by journalists. NewsBrands, who represent the national news publishing industry, say that "the media’s role as the public’s watchdog and its ability to reveal matters of important public interest" are constrained. They regret that in the past, some matters of public concern have not been revealed, due to the current laws and what they entail.
The present administration has promised to reform the defamation laws to find a middle ground between the legitimate protection of one’s reputation and freedom of the press. The content of this proposed reformation remains unclear. It must abide by the message that the Committee of Ministers of the Council of Europe promoted in 2016, when it declared that every member state needed "a comprehensive framework that enables journalists and other media actors to contribute to public debate effectively and without fear".
NewsBrands has proposed more concrete ideas. They demand that claimants should first have to prove serious harm to their reputation before a case will proceed to court. Furthermore, they call for a cap on damages to get more in line with other European countries and to abolish the juries, since these prolong the trial unnecessarily, thus increasing the costs, and because of their unpredictable judgment.
New legislation is due to be signed in early 2021.