Don’t Shoot the Messenger - Karyn Harty Explains Why Defamation Cases Still Need Juries
With the recent appointment of a new Minister for Justice, Helen McEntee, defamation reform comes into renewed focus as an item featured in the Programme for Government. A Department of Justice Review (the “Review”) of the Defamation Act 2009 (the “2009 Act”), which arose under Section 5 of the 2009 Act, has been in place since 2016 but was given renewed energy in 2019, with a Symposium hosted by the Department which I was privileged to attend.
We made submissions to the Review in December 20161 and July 2020, highlighting a number of aspects of the 2009 Act and related procedure that require attention. These include the lack of effective mechanisms for early resolution of claims; the need for a workable offer to make amends procedure; the urgent need for specific treatment of digital content; the fact that the Press Council which was a mainstay of the 2009 Act had no role in respect of on-line content providers; and the need for alternative dispute resolution mechanisms to be given formal recognition.
With continued exponential growth in digital media there has been a marked increase in the volume of claims relating to on-line content. Since 2016 the courts have dealt with a number of appeals relating to damages for defamation, from which it is clear that damages will continue to be assessed at a higher level in Ireland than in other common law jurisdictions because the courts have expressly declined to place any actual or notional cap on damages, although some tempering of awards has occurred. Claims against defendants who are not ‘publishers’ also appear to be on the rise, meaning that the traditional view of defamation litigation as the preserve of newspapers and broadcasters no longer holds, and any reforms need to have regard to broader considerations of freedom of expression, the public interest and reputational protection for those maligned by statements in whatever form.
In seminal decisions in Gilchrist v Sunday Newspapers the Court of Appeal has confirmed that there is no ‘real and substantial’ tort threshold under Irish law in respect of defamation, while the Supreme Court has cautioned against any notion of a hierarchy of constitutional rights, preferring an agile approach to the harmonious recognition of rights depending on what the administration of justice requires in a given case. As O’Donnell J put it: “The Constitution was intended to function harmoniously, and where there were points of potential conflict between the rights and obligations provided for, that should be sought to be resolved without the subordination or nullification of one provision…It should be remembered that the essence of constitutional rights is that they call for enforcement precisely when inconvenient, contrary to the wishes of the Government, the clamour of the media, the public mood more generally, and even the personal wishes of judges themselves.” This all forms an important backdrop for any legislative changes.
Perhaps the most pressing need arising from these developments is for proper consideration to be given to where to place liability for on-line content, which has such a crucial role in public debate and moves at a pace which does not lend itself to the provisions of the 2009 Act. With moves in the US to reconsider the protections for internet speech there conferred by Section 230 of the Communications Decency Act, and the new security law foisted on the people of Hong Kong which appears to outlaw people even contemplating ‘sedition’, there is a more urgent need than ever before for an informed and careful appraisal of how citizens’ rights can best be protected without stifling public discourse. Tied to this is how to deal with forum shopping, given the increase in claims being litigated here that appear to have no meaningful link to Ireland.
Some practitioners are arguing for juries to be removed from defamation actions on the basis that they inflate damages, lead to unnecessary costs and create uncertainty for defendants. Sure, anyone who has been involved in a jury trial knows the highs and lows of trying to convince a jury of the importance of high-brow concepts such as freedom of expression and the public interest. Having had the experience of acting in many jury actions over the years, I am not convinced that abolishing juries will solve these problems, or that it is necessarily going to reset any imbalance between plaintiffs and defendants. Indeed there have been few cases over the years where I would have opted for trial before a judge sitting alone in preference to having the case heard before a jury.
A jury has the advantage of, in this jurisdiction at least, being a relatively random collection of ordinary people who are well able to assess credibility, authenticity and attitude. Juries grasp legal concepts pretty well once explained to them. They are also, let’s face it, often far better attuned to and comfortable with digital media, ‘tabloid’ journalism and on-line forums than some judges might be.
There is much that could be done to streamline defamation hearings. Much of the legal argument that takes place at trial could be dealt with ahead of the trial, using mechanisms that are already available such as meaning applications, and requiring greater precision and detail in pleadings. The sterling efforts of the judge in charge of the jury list to achieve this should be acknowledged and he has done so without having available to him any formal case management measures, or any proper resources to facilitate jury cases getting on for hearing in a timely way. There is no good reason why case management could not be extended to the jury list, provided that sufficient resources are put in place to make it workable.
There is also much that could be done to bring greater certainty to damages, including more overt guidance on the basis for and scale of damages awards so that juries go into the jury room well informed as to the options available to them.
So many claims now relate partly or exclusively to on-line content and, aside from the broader question of liability for such content, there is a pressing need for a mechanism to facilitate early take down where content is in fact defamatory and actionable. As Twitter has suggested in its submissions to the Review, we could learn from the US procedures which provide an early determination process as to whether on-line content is likely or capable of being defamatory, to facilitate prompt take down where it should properly occur and avoid unnecessary litigation over on-line content. And mediation, which is well suited to emotive disputes, should be actively encouraged as part of any reform.
It is to be hoped that concrete legislative proposals will be moved forward this year which will strike a balance between the challenges presented by the creation and circulation of content in 2020 and the entitlement of individuals to vindicate their reputations when they are wrongly maligned. While it may seem counter-intuitive for a media defence specialist to argue for the retention of juries, ultimately I believe their abolition risks giving an unfair disadvantage to media content that does not meet standards of decorum but is nonetheless a crucial part of our society and who we are.
Also contributed by Lesley Caplin and Harry Oulton.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
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