Media Bulletin Spring 2016

14th April 2016

The importance of freedom of speech has been reinforced by the High Court in two decisions concerning previously untested provisions of the Defamation Act 2009

Court refuses to grant injunction to prohibit the publication of allegedly defamatory articles[1]

Ronan Daly Jermyn recently acted for The Irish Examiner in successfully defending the first High Court application for an injunction prohibiting the publication of an allegedly defamatory statement under section 33 of the Defamation Act 2009. The injunction was sought by Mr Dan Philpott to prohibit the continued publication of two articles on the Irish Examiner website concerning a dispute with his former employer, Marymount Hospice.

Pursuant to section 33, an injunction will only be granted in circumstances where in the court’s opinion, the statement complained of is defamatory and the defendant has no defence that is reasonably likely to succeed.

Ultimately, Mr Justice Barrett concluded that the statements complained of were not defamatory, that the defence of absolute privilege was open to the Irish Examiner and in the opinion of the court, the defence was likely to succeed.

Mr Justice Barrett noted the jurisdiction to grant a section 33 type injunction involves a jurisdiction of a delicate nature which should only be exercised in the clearest of cases.

Was the statement complained of defamatory?

A defamatory statement is one which tends to injure a person’s reputation in the eyes of reasonable members of society. The articles complained of were reports of proceedings before Judge James O’Donohoe in the Circuit Court concerning an employment dispute Mr Philpott had with his previous employer which ultimately resolved amicably. Having reviewed the articles in detail, Mr Justice Barrett concluded that there was not much divergence of substance between the Irish Examiner’s text and the judgment of Judge O’Donohoe to tend to injure Mr Philpott’s reputation in the eyes of reasonable members of society. He also noted there is nothing in the neutral wording of section 33 to suggest that internet publications should be treated any differently.

While at common law, for injunctive relief to be granted, the court had to be satisfied that the material complained of was unarguably defamatory, Mr Justice Barrett noted the position appears stronger under section 33. The Court must be of the opinion that a statement “is defamatory”, not arguably or inarguably.

Did the defendant have a defence that was reasonably likely to succeed?

Mr Justice Barrett commented that any benefit of the doubt as to the potential for success of a defence should generally be exercised in favour of the defendant. In any event, Mr Justice Barrett confirmed the premium placed on freedom of speech in our society, noting that the legislature contemplated instances when a court is of the opinion that an indefensible defamatory statement presents but may nonetheless not elect to “bring the hammer of a section 33 injunction to bear” in all the circumstances.

The defence of absolute privilege was claimed by the Irish Examiner. Absolute privilege is afforded to inter alia fair and accurate court reports under section 17 of the 2009 Act, which means a defendant is entirely protected in respect of any statements made.

Mr Justice Barrett commented on the public interest met by court reports and noted that reporters perform an essential role in ensuring that members of the public learn what is being done in their courts and why. Except insofar as is necessary to ensure the right of every citizen to his good name is protected and capable of vindication, Mr Justice Barrett stated the media must go relatively unconstrained in their efforts.

Fair and accurate report of court proceedings

Mr Justice Barrett held that it is not necessary that a court report be verbatim; a fair summarised account of court proceedings is sufficient, if the whole of a court report is a substantially accurate account of what took place; the fact of slight inaccuracies or omissions is immaterial; and it is not enough to report part of the proceedings correctly, if by leaving out other parts a false impression is created.

The Court also rejected entirely the proposition that a court reporter needs to be present for the court proceedings on which he/she reports and confirmed that it is reasonable and lawful to rely solely on the written judgment as the basis for a court report.

Mr Justice Barrett’s decision makes clear that plaintiffs seeking an injunction under section 33 will only be successful in a very narrow and specific set of circumstances. This, together with the threat of exposure to significant legal costs and the attendant publicity which may well be more extensive than that attracted by the original publication(s), is likely to be a sobering thought for any plaintiffs seeking to utilise an application under section 33 as a means to muzzle the press.[2]

Time is of the Essence - High Court refuses application to extend limitation period to bring defamation action[3]

A plaintiff in a defamation action has been refused an application to extend the standard one-year limitation period within which to bring proceedings by the High Court. In this, the first written judgment on an application pursuant to section 38 of the Defamation Act 2009 (the “2009 Act”), Mr Justice Barrett confirmed that granting an extension of time, where the plaintiff “dallied in the commencement of her proceedings” without good reason, was not justified in the interests of justice or the wider public interest in a responsible free press. The decision serves both as a reminder to plaintiffs that expedience is key in the bringing of defamation actions and a welcome reinforcement for the press of the protections afforded by the 2009 Act.

Factual Background

An article published in the Sunday Mirror in February 2014 detailed an interview with a rape victim following the conviction of her father for the crime. The article stated that the victim complained to a “female occupant of the house” immediately after the crime occurred. The article indicated that the female occupant was at first incredulous regarding the victim’s claim. Ms Watson, the Applicant in this case, claimed to be the “female occupant” in question and alleged she was defamed by the article as it suggested she was sympathetic to a rapist or somehow complicit in the crime or its cover up. Ms Watson did not issue proceedings until June 2015, four months outside the standard one year limitation period.

The Legislation

Section 38 of the 2009 Act reduced the previous six year limitation period for the bringing of defamation proceedings to one year. The Court can extend this period to a maximum of two years, subject to specific criteria being fulfilled.

The Court must firstly be satisfied that the interests of justice require the granting of the extension and secondly that the prejudice the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given. Finally, the Court shall have regard to the reason for the failure to bring the action within one year and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

Decision of Mr Justice Barrett

Although this was the first application for an extension of time to bring defamation proceedings under the 2009 Act dealt with by way of written judgment in this jurisdiction, Mr Justice Barrett accepted the analogous relevance of both Irish and UK case law regarding the “need for speed” in the pursuit of defamation actions and the need for an adequate explanation to be provided by a plaintiff as to why an extension of time is being sought.

In making his decision, Mr Justice Barrett did not accept that the newspaper was prejudiced by the passage of time and its effect on the recollection of witnesses in the context of evidence capable of being adduced.

In terms of Ms Watson’s reasons for the delay, the Court noted they remained completely unexplained. Ms Watson sought to make a play of the fact that the address provided on the print edition of the newspaper is the UK address of MGN Limited. The Court held this bore no relevance and service in the UK could have been effected. Furthermore, Ms Watson claimed she was awaiting the name of the editor. The court held this was a “red herring” and was not necessary to the bringing of proceedings. As publisher, MGN was vicariously liable for the editor’s actions and in any event, the editor’s name could have been added to proceedings at a later stage.

Ms Watson had the benefit of early legal advices and correspondence from her solicitor in December 2014 indicated that she was “ready to roll” in terms of commencing litigation well within the one year limitation period, apart from the spurious need to obtain the details of the editor.

In considering where the balance of prejudice lay, the Court held there was no good reason presented as to why MGN should suffer for Ms Watson’s unexplained inaction.

Although not set out in the legislation, Mr Justice Barrett noted that certain types of factors, where delay is either blameless or due to a mitigating reason which ought to be excused, would justify an extension of time. Such factors could be where a plaintiff is prevented by want of legal advice from bringing proceedings in a timely manner or where a plaintiff has suffered a bout of serious ill-health or other such factor that prevented them from learning of the alleged defamation/bringing their action in a timely manner.

Mr Justice Barrett concluded that section 38 of the 2009 Act fulfils a great public interest and recognises the inextricable link between the liberty of our nation and freeness of speech. While he acknowledged the right of individuals to vindicate their good name when the press gets it wrong, he noted that journalists and editors must not in the process “be condemned to a Janus-like existence in which they must ever look backwards, while seeking to move forwards”. In this case, the interests of justice together with the wider public interest in a responsible free press, did not justify the exceptional extension of time sought and Ms Watson’s application was therefore declined.

If you have any queries in relation to the content of this update, please contact Tina English at tina.english@rdj.ie or +353 21 4802700 or any member of the Ronan Daly Jermyn Media Team:

- Darryl Broderick at darryl.broderick@rdj.ie
- Uilliam Ó’ Lorcáin at uilliam.olorcain@rdj.ie
- Richard Martin at richard.martin@rdj.ie
- Diarmaid Gavin at diarmaid.gavin@rdj.ie
- Sean O’ Reilly at sean.oreilly@rdj.ie
- John Buckley at john.buckley@rdj.ie

[1] Philpott v Irish Examiner Limited (2015/10694P)

[2] Mr Justice Barrett’s decision has been appealed by Mr Philpott.

[3] Watson v Campos and MGN Limited [2016] IEHC 18.