HomeCommercial Litigation & Dispute ResolutionRemoval of juries from defamation cases would ease the ‘chilling effect’

Removal of juries from defamation cases would ease the ‘chilling effect’

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Self-help guru Tony Robbins is suing Buzzfeed for defamation. And he’s doing it in the Irish courts. This may seem a little out of the ordinary, but Robbins is not the first international name to take a defamation case to the Irish courts.

Although counsel for Robbins vehemently denies “libel tourism”, the timing of this case seems apropos, given Minister for Justice, Charlie Flanagan’s, confirmation that he hopes to present proposals for reform of Irish defamation laws to the Dáil by March 2020. The Minister listed the size of defamation awards by juries and the duration of cases as just some of the issues.

Juries make for unpredictable damages

Defamation law in Ireland seeks to strike a balance between the Constitutional rights of freedom of expression and the right to protection of a person’s good name.

A key feature of defamation law here is that the fact that the High Court cases are heard before a jury. This has led to unpredictable levels of damages awards to plaintiffs.

The largest defamation award in the history of the State was made when Donal Kinsella, a former director of Kenmare Resources, was awarded €9 million in compensatory damages and €1 million in aggravated damages. Earlier this year the Court of Appeal reduced this award to €250,000.

Earlier this month an Irish High Court jury awarded €387,000 to Aer Lingus pilot Pádraig Higgins following hearing his case against the Irish Aviation Authority (IAA) in relation to defamatory emails sent in 2013.

It was the first jury to assess damages in a case where the defamation was admitted, and an apology given. The jury measured general damages as €300,000 and aggravated damages of €130,000. It found the IAA should be given a 10% discount as a result of the apology and that brought the total award to €387,000.

The “Chilling effect”

On November 14th, the Minister, along with academics, media representatives and legal professionals met at the Royal Irish Academy in Dublin to discuss the issues of the Defamation Act 2009.

A theme that came up repeatedly was the ‘chilling effect’ that the current defamation system has on media reporting. Paula Mullooly, Head of Legal Affairs at RTÉ, stated that many stories where there is a legitimate public interest are not pursued because media organisations fear defamation cases and large pay outs.

The extent of the proposed reform to defamation law remains to be seen, but it does seem likely that reform will include the removal of a jury from defamation cases, a cap on damages and a serious harm test- whereby the harm caused to the plaintiff’s reputation has to be considered serious.

About the author, Dermot McClean, Solicitor on our Dispute Resolution and Litigation Team