Constitutionalising the Tort of Defamation - Bunreacht na Heireann as a Framework for the Reform of Ireland's Libel Laws

AuthorBrian F. Conroy
PositionSenior Sophister (Law and French), Trinity College, Dublin
Pages1-27
CONSTITUTIONALISING
THE
TORT
OF
DEFAMATION:
BUNREACHT
NA
HEIREANN
AS
A
FRAMEWORK FOR
THE
REFORM
OF
IRELAND'S
LIBEL
LAWS
BRIAN
F.
CONROY*
Characterising
the
problem
Legal
criticism
of
any
worth
will
generally
begin
from
a
problem
in
the
existing
law.
The
proposition
of
an
alternative
to
Ireland's
current
defamation
1
laws
should
accordingly
be
preceded
by
proof
that
they
are
failing. Such evidence may
not
be
difficult
to
find.
The
present Minister
for Justice has
admitted that
he
sees
"the
need
for
the
modernisation
of
defamation".
2
The
Government's
legislative
programme
contains
a
commitment
to
bring forward
a
Bill
to
reform
the
law
in
this
area. On
23
October
2001,
the main
opposition
party
proposed
changes
purporting
to
amount
to
a
"radical" overhaul
of
our
libel
laws.
3
No
prominent
politician
has
publicly
argued
that
these
laws
are
functioning adequately
and
should
be
left
substantially untouched.
Lawyers
have
been
no
less
adamant
in
this
regard.
More
than
ten
years
ago,
the
Law
Reform
Commission concluded
in its
report that
"the
Defamation
Act
1961
should
be
repealed
and
new
legislation
enacted".
4
The
Commission
on
the
Newspaper
Industry
recommended
in
1996
that
"essential
changes in
the
law
of
libel
be
introduced
as
a
matter
of
urgency".
In
the
foreword
to
a
new
book
on
*
Senior
Sophister
(Law
and
French), Trinity College,
Dublin.
Defamation
as
it is
currently understood
in
this
jurisdiction
encompasses
the
historic
torts
of
libel and
slander.
Since
every
major
issue
touched
upon
by
this writer
will
be relevant
to
libel,
the
terms
'defamation'
and 'libel' will
for most
purposes
be
used interchangeably.
As
will
be
seen
later,
most
advocates
of
reform
propose
to
abolish the
libel-slander
distinction
in
any
case.
2
See
Coulter,
"Minister
promises
fast
move
on
libel
bill"
The
Irish
Times,
26
October
2001.
3
See
Fine
Gael
Policies
<http://www.finegael.com/policydocs/pressforchange.htm> (visited
6
February
2002) for
Part
2
of
Fine
Gael's
A
Democratic
Revolution,
wittily
entitled "Press
for
Change
-
a
Thorough
Overhaul
of
the
Laws
of
Libel".
'See
Law
Reform
Commission,
Report
on
the
Civil
Law
of
Defamation
(Law
Reform
Commission,
1991), at
para.
14.1.
[hereinafter
referred
to as
"the
Law
Reform
Commission
Report"].
0
2002 Brian
Conroy
and
Dublin
University Law
Society
Trinity College
Law
Review
libel,
5
Mr.
Justice
Peter
Kelly
expresses
his
belief
that
the present
state
of
the law
here
is
not
satisfactory.
6
It is
unsurprising
that
the print
media
should
advocate
reform
in
an
area
of
the law
that
affects
them
so
directly and
(arguably)
so
negatively.
But
the
frequency
with
which such
calls
for
change
are
being
published
is
nonetheless striking.
In
the
three-month
period
from
mid-September
to
mid-December
2001,
articles
focusing
in
some
way on
the
deficiencies
of
Ireland's
libel
laws
appeared
in The
Irish
Times
at
a
rate
of
around
one
every
three
days. Such pieces
have tended to be
phrased
in
unequivocal
terms.
The
legal
situation
as
regards
defamation
has
been variously
described
as
"shamelessly
skewed",
7
"a
disgrace"
s
and "anachronistic".
9
The
National
Newspapers
of
Ireland
have
spearheaded
a
ten-year
lobbying
campaign
aimed
at
forcing government
action
and
claim
to
have
amassed a
"veritable paper
mountain"
of
evidence
favouring
reform."
0
Some
proponents
of
reform
in
other
countries
have
actually
pinpointed
Ireland's
law
of
defamation
as
a
paradigm
example
of
injustice.
Ireland
is
a
sovereign
nation
and
the
fact
that
very
different
approaches
to
defamation prevail
elsewhere does
not
necessarily
demonstrate
that
our
laws
are
flawed.
But
the
passing references
to
Ireland
in
British texts
as
a
country
"where
the
injustice
of
the
libel
law
is
markedly
more
pronounced
than
in
the
UK"
must
raise
some
misgivings
about
the
current situation
here."
This disquiet becomes magnified
when
read
in
the
light
of
the
International
Press
Institute's
characterisation
of
our
libel
laws
as
"cripplingly
strict")
2
In
contrast,
nobody
can be
found
to
defend
the
libel
laws
as
they
stand.
Most
academic writers
have hardly
bothered
to
address
the
possibility
that
the
defamation
laws
now
in
place here
might not
need
to
be
reformed,
tending
to
start
from
the premise
that
change
must occur.
5
McHugh,
Libel
Law:
A
Journalist's
Handbook
(Round
Hall
Press,
2001).
6
Judicial
support
for reform
is
more
difficult
to
find
in
the
case
law
itself,
but
this
may
merely
reflect
the
fact that most
Irish
judges
are
reluctant
to
stray
beyond
their
perceived
constitutional
role
of
applying
the
law
as
it is.
Giving
his
judgment
in
the
Supreme Court
in
Hynes-O'Sullivan
v.
O'Driscoll
[1988]
IR
436,
Henchy
J.
eschewed
judicial
development
of
the
qualified privilege defence,
but
he
did
appear
to
accept
that
legislative
reform
of
this
area
of
the law
might
be
needed: "[D]espite the
obvious attractiveness
of
the
suggested formulation
of
the
law
of
qualified
privilege...
the
suggested
radical
change
in
the
law
should
more
properly
be effected
by
statute"
at 360-361.
7
Smyth,
"Libel
no
longer
such
a
nice
little
earner"
The
Sunday Tribune,
9
December
2001.
'
Holt,
"Between
the lines"
The
Irish
Times,
3
November
2001.
9
Editorial,
"Fine
Gael
on
Libel"
The
Irish
Times,
24
October
2001.
'
oSee
their
website,
National
Newspapers
of
Ireland
<http://www.nni.ie>
for
further
details.
11
See Hooper,
Reputations
Under
Fire:
Winners
and
Losers
in
the
Libel
Business
(Little,
Brown,
2000),
at
3.
'2
Intemational
Press Institute,
World
Press
Freedom
Review
1997
(IPI, 1997)
<http:I/www.freemedia.at/wpfr/world.html>
(visited
8
February
2002).
For
similar
views
on
the
injustice
of
our
libel
laws,
see
United
Nations'
Special
Rapporteur,
Report
on
the
Promotion
and
Protection
of
the
Right
to
Freedom
of
Opinion
and
Expression
in
Ireland,
(United
Nations,
1999),
particularly
at
paras.
41-46.
[Vol.
5

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