237 / 406
INCORPORATED LAW SOCIETY OF IRELAND
Vol. No. 79 No. 7
SEPTEMBER 1985
. . . And Be Damned?
E
VEN though the
ACC/Irish Business
case is
presumably in that limbo from which most inter-
locutory injunctions never emerge to a plenary hearing, it
may be inappropriate to comment on its particular facts.
Nevertheless, the questions of principle and procedure
governing the granting of injunctions restraining the
publication of alleged defamatory material which it
brought to light deserve consideration.
To what extent should a person who believes he or she
is about to be irreparably defamed by some of the media
be allowed to stifle publication? Is it reasonable that such
a person's recourse to the Court should be without notice
to the other party? Is it proper that such applications may
be heard in camera thus restricting publication of any
details of the hearing? Should a Court be able to make an
order restricting publication of the defamatory material
and provide in that order that the fact of the making of the
order is not to be publicised? To what extent should the
identity or status of the plaintiff affect the issue? If the
defamatory material is based on information which has
reached the defendant as a result of a breach of confidence
should this deprive the defendant of his normal defences
to a claim for defamation?
At one end of the spectrum it may be easy to argue that
a person defamed in a widely advertised "Today
Tonight" or "Late Late Show" TV programme or a
major article in a daily newspaper can never be
adequately compensated for the damage caused to his
reputation, so wide would the publication be. At the
other, it may seem harsh that a magazine with a
circulation of a few thousand copies should be put into
financial peril because it contains a small passage which,
more carefully worded, could have achieved its aims in a
non-defamatory manner. Even these two examples are
not without their complexities. If the small circulation
periodical is a widely respected trade journal, a careless
comment may do a person irremediable harm in his or her
business. If the subject of the comment is a person or
institution of considerable influence it may only be a
major newspaper or National television that can have the
courage to raise questions about the conduct or probity of
the individual or institution.
Only one of the questions is capable of a ready answer.
While it may be excessively restrictive to prohibit
publication of the making of an Order if there is to be no
restraint on the publication of details of the proceedings
on the application for the injunction then other arms of
the media will be able to publish with impunity under the
Privilege Rule, the details of what has transpired in the
Court which must necessarily involve details (e.g. from
quotations from affidavits opened to the Court) of the
alleged defamatory statement.
In the absence of Freedom of Information legislation,
journalists seeking material which might be considered
confidential by the proposed subject of the comment
have difficulties to overcome because of their need to
establish that the person who has broken the confidence
had "just cause or excuse" for so doing. The decision as to
whether just cause or excuse existed will, of course, be a
retrospective decision of a Court and accordingly the
journalist who publishes material obtained through a
breach of confidence is at risk.
The media complain loudly about the gagging effects of
defamation and the "
sub judice
" rule. In the latter case
their complaints are usually misplaced, publication of
comment on pending civil litigation being far freer than
the media appears to believe. On the other side, it is
unsatisfactory that, the criminal libel route excepted,
there is no protection against the defamation of a
deceased person. There must be many cases in which great
mental distress has been caused to the near relatives of a
deceased by offensive publications which unfortunately
are not actionable. A person believing himself defamed in
a newspaper or periodical has no real recourse except to
the writ of libel. There is no Press Council in this country
to which claims of misrepresentation or unfair treatment
might be referred. There is not, as there is in some
jurisdictions, a statutory right of reply available to
persons who consider they have been mistreated. In this
respect the position of our national radio and television
service is far more satisfactory. Section 18 of the
Broadcasting Authority Act has been invoked on a
number of occasions by parties seeking fairer treatment
from RTE while the Complaints Commission has not
hesitated to wrap even the most popular broadcasters
over the knuckles when they strayed from the path of
fairness. Now that our National newspapers have come
together to do battle for their commercial existence it
might be appropriate for them to consider the establish-
ment of a Press Council.
Finally, the media should consider itself lucky that it
does not operate in Portugal where an editor who loses
three successive libel actions must forfeit his job for 5
years and papers suffering similar defeats are liable to
suspension for up to 6 weeks.
•