167 / 462
GAZETTE
JUNE 1992
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
indeed welcome that this
methodology was adopted.
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.
The
Report
recommends two very
important practical changes. First,
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
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.
Eoin O 'Dell
Lecturer in Law,
Trinity College, Dublin.
•
Denis C. Guerin
New York Attorney at Law
Member of the Law Society, Dublin
Native Killarney, County Kerry.
Willing to act as agent or counsel
to you in the US
l egal Advice and Assistance on
Wills, Inheritances, Family
Searches, I h r oughoul the U.S.A.
Specialising in Immigration,
Personal Injury,
Property Transactions, Divorces,
Wills, etc.
25 West 3 9 th Street
New York NY 10018
Telephone:
Days: 212 3 9 8 9 2 3 8
Evenings: 212 7 96 0 9 7 0
Fax: 212 391 6917
143