The Gazette 1992

JUNE 1992

GAZETTE

emotive and complex as defamation law dissent is not surprising. Indeed, there were two other significant dissents. The Report proposes that the burden of proving falsity be on the plaintiff, and that it should be possible for relatives of a deceased to bring an action for defamation of the dead person's reputation. Both of these are majority recommendations, and the dissents and the reasons for them are recorded. This is all to the good. It would be strange indeed if there were perfect unanimity on all issues. That the Report records the dissent is one of its strengths, it brings other arguments to the fore and lends balance to the result. The Law Reform Commission Report on the Reform of the Civil Law of Defamation is indeed a welcome document, and one which does not deserve the fate of most Law Reform documents; it does not deserve to be left unimplemented. The next step on the road to reform ought to be taken: it ought to be implemented.

On the issue of the Constitutional protection of expression, the Report analyses the protection given to speech by Art. 40.6.1 (i) of Bunreacht na h-Éireann and by the right to communicate identified as an unenumerated right in Art. 40.3 in A.G. -v- Paperlink [1984] ILRM 374. It concludes that the former primarily concerns speech in the nature of criticism and comment. It considers that this would not seem to include speech the primary aim of which is to convey factual information, which is protected instead under the more nebulous right to communicate. However, the Report is of the opinion that when these rights conflict with the right to good name, the State's duty to protect it from "unjust attack" leaves a wide margin to the Oireachtas to resolve any conflict. In this regard, there is a parallel to be drawn with the margin of appreciation granted to States by the European Convention on Human Rights to consider whether in fact any restriction on rights is "necessary". As a result, the Report is confident that the balance it strikes as between the competing rights is one which does not fall foul of any of the provisions of the Constitution or of the European Convention. Whilst one might disagree with the interpretations presented and upon which the analysis for reform is grounded, it is On this constitutional foundation, the Report suggests the building of a fascinating edifice. Construction work would begin with the repeal of the unsatisfactory Defamation Act, 1961. In its stead, there would be a new Act, embodying the Report's recommendations. It would abolish the distinction between libel and slander and replace it with a statutory definition of a single unified tort of defamation, in essence the publication of untrue matter which tends to injure the plaintiff's reputation. indeed welcome that this methodology was adopted.

the rules in relation to pleading the innuendo would be radically simplified. Second, the making of an apology and payment into Court would no longer constitute admissions of liability. The law on privilege would be clarified, and the effect of Hynes- O'Sullivan -v- O'Driscoll [1989] ILRM 349 would be reversed. Such liberalisation (and the changes in remedies discussed below) meet most of the media's concerns. Thus, although the earlier Paper had discussed and canvassed views on a general (but media sensitive) defence of Fair Report, the Report itself does not recommend its introduction. In terms of defences, the Report recommends the cosmetic, but psychologically important, changes in the names of the defences of fair comment and justification to, respectively, "comment based on fact" and the defence of " t r u t h" since the changed names better reflect their essences. Further, the effects of ss.22 and 23 of the Defamation Act, 1961 on the need to prove only substantial truth would be retained and refined. Much of this is predictable tidying up of the frayed and ragged ends of the law as it now stands. Other provisions in the Report are more radical. For example, although the function of deciding whether the words complained of are defamatory would remain with a jury, the Report recommends that it be for the judge to decide the quantum of damages (if any) to be awarded. Furthermore, the Report proposes a fundamental move away from damages as the sole remedy for defamation. Where the defendant has published matter which is defamatory, but he can show that he has taken reasonable care, then he will not be liable to the plaintiff in damages. The plaintiff instead would be able to secure a correction order or a declaratory order, in effect, clearing the good name of the plaintiff without penalising the defendant in damages. This recommendation provoked a dissent from one of the Commissioners, and in an area as

Eoin O 'Dell Lecturer in Law, Trinity College, Dublin.

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Denis C. Guerin New York Attorney at Law

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The Report recommends two very important practical changes. First,

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