337 / 462
GAZETTE
NOVEMBER 1991
L RC proposals on defamation,
contempt and libel
In January, 1989 the Attorney General requested the Law Reform Commission to
examine the law of defamation and contempt. In three recent consultation papers
the Commission has set out proposals for a thorough modernisation of the law on
civil defamation, contempt of court, and criminal libel.
Free Expression or Fair
Name?
Consultation Paper on the Civil
Law of Defamation
Law Reform Commission, March,
1991. 467pp £20.00
Introducing their proposals for
reform the Commissioners say that
it is generally agreed that the law of
defamation should protect and
vindicate so far as possible the
individual's right to his/her good
name and the right of free ex-
pression. "Both of these rights are
expressly guaranteed by the Con-
stitution, but our law of defamation
which has remained unaltered for
nearly 30 years does not provide in
modern conditions a satisfactory
framework for ensuring that they are
adequately protected."
Following a thorough examination
of the existing law in this and other
common law jurisdictions, the
Commissioners have departed
slightly from their usual format by
setting out an examination of the
law in the United States, observing
that: "American jurisprudence on
defamation has undergone a radical
transformation in the past 25 years
and has rejected much of the com-
mon law framework in this area.
Secondly, the changes effected
were achieved under a Constitu-
tional guarantee of free speech.
The parallel wi th Ireland is
obvious". Then follows an analysis
by the Commission of the merits
(and drawbacks) of United States
defamation law. Clearly, many of
the proposals have been influenced
by this exercise such as the
conclusion that the retention of
defamation as a 'strict liability'
wrong is no longer justified, the
proposal for the introduction of a
new remedy of declaratory judg-
ment that would provide a plaintiff
with a speedy method of correcting
a false statement, and the proposal
to abolish the common law rule
that 'malice' defeats the defence of
'fair comment'.
The comprehensive suggestions for
reform include the abolition of the
distinction between libel and
slander which, the Commissioners
observe, is no longer tenable in our
technological age. A new definition
of defamation is set out which,
interestingly, contains within it the
proviso that: "matter shall not be
considered injurious to the plain-
tiff's reputation if it states that s/he
upheld, assisted or complied with
the law in any way."
Among the remaining proposals are
provisions that: while juries should
indicate at what level damages
should be assessed, the actual
amount should be determined by
the judge; a new cause of action in
respect of defamation by the dead;
and immunity from defamation
actions for printers and distributors.
Finally, an appendix to the paper
deals with the development of a
right to privacy in Irish law. The
Commissioners conclude that a line
has emerged in the Supreme Court
recognising privacy as an unspeci-
fied personal right under the
Constitution - albeit almost
exclusively within the context of
family relationships - but with
potential for further development in
future cases.
Since its publication the Com-
mission held an all day public
symposium on the topic at the end
of April attended by, particularly,
representatives of the print and
electronic media. Following this,
submissions on its reform proposals
were received by the Commission
from interested parties. It is likely
that the Commission's final pro-
posals for changes in the law of
defamation will be presented to
Government and published before
the end of this year.
Free Speech or Fair Trials?
Consultation Paper on Con-
tempt of Court.
Law Reform
Commission, July, 1991. 447pp
£20.00
In a society hungry for information
and where transmission of news is
instantaneous, how best can be a
balance be achieved between the
competing claims of the public's
right to know and a defendant's
right to a fair trial? In the second
phase of its examination of the law
on defamation and contempt, the
Law Reform Commission's con-
sultation paper on Contempt of
Court grapples with this key issue.
Commenting that the current law
may be considered 'archaic' and
'out of touch', the Commission has,
again, set out a thorough examina-
tion of the current law in this
country coupled with extensive
examination of case law and
research findings in other juris-
dictions. The first 10 chapters
provide a valuable guide for
practitioners, dealing with: con-
tempt in the face of the court,
scandalising,
sub judice
rule, acts
that interfere with the course of
justice, civil contempt, jurisdiction,
the roles of judge and jury, and
contempt in relation to tribunals.
319