Hyde and Seek creches announcing last week that they are suing RTE for defamation for the airing of the “Creches: Behind closed doors” documentary in July, has reignited the debate over whether Ireland’s defamation laws are absurd or sufficient.
Owners of the creche chain, Peter and Anne Davy filed a lawsuit against the national broadcaster with a plenary summons seeking damages for defamation, aggravated and exemplary damages, a correction order and an injunction against further broadcast and publication of allegations.
Ireland’s defamation laws, which are among the most oppressive in Europe, prohibit journalists from doing their most important job: exposing corruption and wrongdoing that gets swept under the carpet when no one else is keeping watch.
There are two main factors in Irish defamation law that make it extremely difficult for journalists to oversee democracy. Firstly, if someone sues a news organisation for making a defamatory statement about them, the onus is on the news organisation, not the plaintiff, to prove that the statement was true and was not defamatory.
It should not be the case that in Ireland, a jury in a defamation case, who for the most part would have no prior knowledge or legal expertise, is expected to make the decision about damages. It shouldn’t be a controversial thing to suggest that that power should rest with the judge alone.
In 2010, 10 million euros, the highest ever payout in the history of the state, was awarded to Mr. Donal Kinsella when it was found by the High Court that Kenmare Resources had made a defamatory statement about him in a press release.
The Court of Appeal rightfully reduced this extraordinary figure to 250,000 euros, but this occurrence should have immediately sparked a review of the 2009 Act to amend its problems. To put things in perspective, if you lose your arm the most compensation you’re likely going to receive is around 140,000 euro.
Granted, that case was not concerning a news organisation, but these huge payouts and the responsibility lies with news organizations to prove they did not make a defamatory statement if they are sued, has obviously had a chilling effect on the media.
How can you dispute that the Irish Times having to pay hundreds of thousands of euro for the Mahon Tribunal story and protecting their source wouldn’t result in self-censorship of the media?
The media is in huge financial trouble as it is. Having Irish defamation law so set against them is only going to result in fewer investigations being conducted and less corruption being exposed, hindering Irish democracy exponentially.
Speaking to RTE’s This Week programme in March 2019 following the dismissal of Denis O’Brien’s case against the Sunday Business Post, current Press Ombudsman Peter Feeney said “It’s about re-establishing your reputation. To re-establish your reputation, why do you need €100,000? Why can’t you get €1,000?” he said.
“Of course, there’s always issues about freedom of speech and the right of expression, so you have to get that balance right. But at the moment the balance is not right; it’s distorted in favour of an unregulated, wild west territory,” he continued.
It goes without saying that sometimes the media does screw up and damages should be paid to people. Right to privacy and right to a good name should always be protected under Irish Law, but all journalists want is for democracy’s fourth estate to be protected too.
By Emma Nevin