Defamation Act 2009

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nIntroduction

nThe Irish Constitution guarantees every individual the right to good name. In addition, it protects Irish against any unjustified violation of this right. Most importantly, the Defamation Act 2009 ensures that the reputation and good name of a person are not damaged. The legislation also facilitates aggrieved persons to pursue relief pursuant to the provisions of this act. Moreover, the act restructures the legislation in this position by combining the available defences to an offender in a defamation case. Therefore, the Defamation Act 2009 attempts to balance the freedom of expression and free speech against the right to a good reputation and good name of any person.

nThe Defamation Act 2009 is very important since it balances the right of an individual to a good name and reputation against the freedom of expression and free speech. The legislation has succeeded in this mandate since it concentrates on provision of relief to individuals who have suffered from wicked publication or defamatory statement. The act also describes what characterize a defamatory statement. In this regard, it states that a defamatory statement is any report, publication or set of words that reduces a persons reputation in the face of right-discerning society members. In this regard, when an individual makes a statement that insults the character of another person in the eyes of third party, they are accountable to an offence under the provisions of the Defamation Act 2009.

nMore significantly, the legislation ensures there is balance between the right of free speech and right to good reputation by demanding that the plaintiff should prove that the offender conversed defamatory speech to a third party. In addition, the plaintiff must also demonstrate that the speech or report had a defamatory impact on his or her reputation in the society. Normally, the Irish Constitution pursuant to Article 40.3.2 protect the right of a person to good reputation and name. Under this situation, the government promises that it will, certainly, by its powers safeguard the good name of its citizen from unwarranted attack. The constitution also empowers the government to defend the reputation and good name of every individual. Furthermore, the freedom of expression is protected in the Irish Constitution under Article 40.6.1 which guarantees complete liberty of communication. More importantly, the Defamation Act 2009 balances these rights as it combine the defences accessible to an offender where a litigant has presented a case seeking compensation for defamation. Some of the legal defences approved by this act include truth, absolute privilege, qualified privilege, honest opinion, innocent publication among others.

nThe legislation has also played a crucial part in protection of individuals reputation from injuries. It provides remedies in case the court of law establishes that a person was a victim of defamation. For instance, it offers damages that should also match the suffered reputation to the level of injury. The laws clears explains that a defamatory statement include any untrue or false information levelled against a person that destroys his/her good name or reputation. In some instances, the law also covers different entities such as firms possessing legitimate status. Nonetheless, the commercial reputation lacks similar ethical grounds as a personal reputation. The defamation Act 2009 also acknowledges that the right to free speech and freedom of expression have particular responsibilities and duties. However, the scope of these responsibilities and duties are applied under different circumstances. For instance, the media and journalist should understand their limitations in their profession with regard to respect of the rights and reputation of other people. By standard, the legislation expects them to serve in good faith aiming to offer reliable and accurate information to the public in harmony with the code of conduct of journalism.

nJournalists demand that they should have unlimited rights to communicate whatever they want. Meanwhile, the Irish Constitution under Article 40.6.1.i suggests that the government should safeguard the citizens rights to communicate freely their opinions and convictions. More significantly, the Defamation Act 2009 ensures that freedom of expression and right of free speech is not absolute in Ireland. Furthermore, the act also notes that the media has an important role in enlightening the public opinion. Therefore, the State should develop mechanism that ensures that tools of public opinion such as the press and the radio maintain their freedom of expression. However, the defamation law stipulate that the media must not be used to weaken morality, public order or the power of the State. The defamation act 2009 has also succeeded in vindicating persons rights to their reputation and good name.

nSince 1961, cases of defamation in Ireland were governed under the Defamation Act 1961 before it was repelled. Traditionally, defamation has been categorized into two systems i.e. slander and libel. Generally, libel was the recorded type of defamation while slander was the oral type. However, due to advancement of technology, the definitions of these terms have become absolute. For instance, the invention of video and tape recorders has facilitated storage of broadcast information in the same manner as the newspaper. In the modern society, a defamatory piece of information on the media such as the internet, television or radio can be classified as libellous instead of slanderous. The Defamation Act 2009 eliminated the distinct torts of slander and libel and substituted them with the tort of defamation. The legislation also highlighted three ingredients of defamatory statement. In this regard, it should be false, should refer to the plaintiff and should be printable.

nPursuant to the defamation legislation, the court can only ensure justice of the victim in case of defamation when the statement is published. For instance, publication is important in defamation claims since it helps in proving that the statements led to lowering the social status of the victim. Therefore, the jury normally uses the publication when reviewing damages to be awarded to the plaintiff.

nFurthermore, the defamation act 2009 also provides the balance between rights of free speech and right to a good name, as it demands identification of defamatory statement. In addition, defamatory statement can also apply even when the name of an individual is not mentioned. For instance, a citizen can launch defamation claims when statements suggest a particular individual through his/her location, or profession as well as image. In this case, if an individual provides reliable evidence that he/she identified the plaintiff by the image or description that is adequate to launch for a defamation action. This means that defamation also applies when false information is levelled against a person who is not directly mentioned, but can his/her image or description clearly identifies him/her.

nThe justice system can only take action against false statement. Under Defamation Act 2009, defamation is different from other offences since a statement is considered insulting until substantiated otherwise. If the accused needs to implore validation as a defence, he must demonstrate the certainty of the statement. On the other hand, in case a declaration is privileged, a prospective victim has no authority to pursue the matter. Privileges are categorized into two i.e. qualified privilege and absolute privilege. With regard to absolute privilege, the intents of the producer/publisher are immaterial. This applies to members of parliament or judges in a court of law since they cannot be sued for defamation for what they say. Qualified privilege ascribes to communication in case the publisher has social, moral and legal responsibility to deliver information while the recipient has a role to receive it. For instance, a person may allege that an employee is incompetent, or dishonest to his employers.

nIn case such accusations are done in good faith, they are not considered defamatory even if they may be precisely wrong. The act also ensures that the damages are huge such that the defendant is required to pay significant amount of legal cost. It also demands that a defendant who is found guilty of defamation must pay all the legal cost of the proceedings. However, before such damages are paid, the plaintiff must prove that the defamation cause actual loss or special damage. Through such provisions, the Defamation Act 2009 has accomplished the significant balance between the right to ones reputation and good name against the freedom of expression and free speech.

nHowever, there are certain provisions of the Defamation Act that need improvements in order to serve the intended purpose. Firstly, the Defamation Act 2009 should ensure that its provisions are able to facilitate participation of citizens without fear and freely in debates and discussions on issues of public interest. For instance, the legislation should ensure that it does not undermine the right of free speech among the citizens when discussing issues dealing with history, culture, religion, health matters, current affairs and politics since such topics indulges in public. Moreover, all persons especially academics, whistle-blowers, and members of the civil societies must have the capacity to engage in public debate. Moreover, it is precisely essential for the media and journalist to possess the ability to do so since they deliver ideas and information widely. Ultimately, they play a huge part in formation of public opinion. More significantly, media should have an opportunity to impart ideas and information on issues of public interests that members of the public have a right to information. The media also function as the watchdog for the public hence unearthing information and those in positions of authority should not curtail revealing corruption and wrongdoing.

nMoreover, the defamation act 2009 must also ensure that it eliminate sanctions, and measures that are likely to discourage media from engaging in the public debate. In most cases, when a legislation provide close scrutiny of the media it is more likely to cause a chilling effect on the right of free speech that have a huge impact on the entire society. Additionally, interferences of the freedom of the media are likely to cause fear among the public. Consequently, they become scared to exercise their right of free speech in a brave manner. Ultimately, it may lead to self-censorship, which destroys the public debate. In the Defamation Act 2009, it is essential that the legislation evade a chilling effect. Therefore, the act should ensure that any measures or provisions disrupting the right of free speech and freedom of expression are guided by the principle of proportionality.

nCriminal proceedings have devastating effects on the victims of such atrocities. Therefore, due to nature of criminal measures, it is likely to cause chilling effect on debate of current affairs. For instance, jailing journalists for a press offence can cause negative effects on the free speech. However, journalist can be imprisoned only in exceptional cases such as when other human rights and freedoms have been extremely violated. For example, they may be jailed in circumstance of agitation of violence or hate speech.

nOn the other hand, defamation actions should not be used against the deceased. Similarly, it must not be applied to safeguard State anthems, flags and symbols. In the meantime, the law should not protect politicians, public figures and public officials who are criticized for their actions. This is because when such persons decide to join public service they should be ready for examination of their actions.

nConclusion

nThe Defamation Act 2009 is an important piece of legislation in Ireland, which protects the good name, and reputation of citizens. However, the Irish Constitution also guarantees the rights of free speech and the freedom of expression. The act has succeeded in balancing the right of free speech and the freedom of expression against protection of individuals good name and reputations. Specifically, the act offer defences which offer instances in which a person cannot be prosecuted for defamation. For instance, in cases of absolute privilege, qualified privilege, apology and truth an individual is protected against defamatory actions. Therefore, through such defences right of free speech and freedom of expression are safeguarded. However, when a plaintiff proves a case of defamation, the defendant is required to pay for damages.

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nBibliography

nCox N, ‘Defences Under The Defamation Act’ (2012) 70 The Cambridge Law Journal

nForde M and Leonard D, Constitutional Law Of Ireland (1st edn, Bloomsbury Professional 2013)

nIrish Statute Book, ‘The Defamation Act 2009’ (Irish Statute Book, 2009) <http://www.irishstatutebook.ie/eli/2009/act/31/enacted/en/pdf> accessed 15 February 2017

nKoltay A, Media Freedom And Regulation In The New Media World (1st edn, Wolters Kluwer 2014)

nMcGonagle T, ‘Review Of The Defamation Act 2009 – Public Consultation 2016’ (2016) 66 Department of Justice and Equality