The Irish Constitution, somewhere around Article 40, guarantees the right of free speech. Surprise surprise, however, this is not an absolute right, and so we’re obliged to pay heed to a body of Common Law that has grown up since the start of the State. One of the major concerns of the State is the prevention of the Tort of Defamation (remember Tort? see an earlier entry of mine for more information).

Now, quickly, lets look at the definition of Defamation. It is, according to the Defamation Act 2009, any statement that tends to injure a person’s reputation in the eyes of reasonable members of society. To be defamatory, a statement has to be published, it has to refer to the complainant, and it has to be false.

Some statements can be declared privileged; you can have Absolute Privilege as in the case of statements in the Dail, Seanad, for a judge in Court and a barrister on his feet. Same goes for reporters giving accurate reports of statements in the Dail and of Court procedures, for fairly obvious reasons. Qualified Privilege exists in a delightfully vague statement where “there is a legal, moral or social duty to communicate the information and the recipient has a similar duty to receive it.” One example I read of this is an employee making allegations of theft regarding a second employee to the boss, for example. However, the potential for confusion in this area is pretty obvious.

There are defenses for the charge of Defamation, but one of the crucial factors to be aware here is the huge damages that have been awarded by Irish Juries. Denis O’Brien seems to be a huge success in this area, winning €750,000, no less. The only person who was awarded a larger amount was Fr. Reynolds in the ‘Mission to Prey’ case, and he was awarded €800,000.

In this country, we have to acknowledge that there is a class of person who can utilise these laws with much greater ease than others. This, coupled with the fear of media organisations of the financial costs of cases, means that there is a silencing of comment concerning real issues. How about the situation concerning XXXXXXXXXX [REDACTED] who seems to have threatened the XXXXX XXXXX [REDACTED] so as to ensure that their behaviour remains undisclosed? How can justice be seen to exist in such a country, when a mere mention is enough to stir the beasts?

That Article mentioned at the start of this blog post is one of many created by the founders of this State intended to grant protection to its citizens. However, this Article along with others can merely be considered to have the depth and strength of toilet paper, as it grants no protection whatsoever.

Some further reading, put here for no particular reason whatsoever;

• http://www.broadsheet.ie/2012/08/10/deadly-cold-logic/
• http://politico.ie/irish-politics/8689-denis-o-brien-vincent-browne-threat-to-sue.html

Next Post;

Suggested by @clarabel: The smallest change that had the biggest impact.

Here is a Podcast of me being wonderful;

http://www.podcasts.ie/2012/08/podcasts-ie-showcase-no-26/

I declare to God, Iain….. Right, be careful what you wish for, kids.

The creation and development of Tort Law, and Negligence law in particular, is similar to a long, rambling conversation to be found at a dinner table. The guests gradually imbibe the port and cheese, and as their digestions cope with the rich food they happily give forth on various topics. The weather. Politics. The welfare state. And occasionally the duty of care owed to one who is not in a contractual relationship with another party.

“Damn it Geoffrey, was that a belch or a ruling on East Indian shipping routes?”

Tort law is a civil wrong, rather than a wrong that is classed as a crime. Take, for example, the idea of Defamation. The State does not prosecute this under a criminal code, nor does it seek a custodial sentence upon conviction. Instead, it is a charge pursued by the injured parties and the result if found to be so is usually a financial penalty.

Findings of Negligence starts off with the unpleasant story of Donoghue v.s Stevenson. Here the plaintiff was served a drink that her friend had bought in a cafe. However, the decomposed body of a snail was found within it.

“For God’s sake, Mabel, it’s all protein.”

This meant declaring an injustice was done to the plaintiff who drank the liquid (and who suffered gastroenteritis), a new legal relationship other than that of a contractual malfeasance.  The law has since been casting around creating new variations of this obligation since then, which is labelled Duty of Care. The Duty of Care to my neighbour varies depending upon the circumstances of each particular case, the parties involved, the  level of knowledge of each party, and so on.

So once Duty of Care is established, it is thereby up to the Courts to decide if there is any negligence on the part of the defendant of that Duty of Care. If the Court has decided that (for example) an employer, who has contracted out catering to a company who has its  employees on site, owes a duty of care, it is then obliged to ask if that duty was upheld; was the employer negligent or not? The standard used is that of Reasonable Care, and focuses on Proximity of Relationship and whether or not injury was Reasonably Foreseeable in the circumstances.

Nicely headwrecking, wouldn’t you say?

So where does the connection to Madonna come into it? Well, lets take a quick glance at old Madge, shall we? Madonna’s career started in the 1980s, and has continued to this day. The discography of her tracks has a long and winding road, one that might almost be said to have an unclear or uncertain context:

Seriously. Can you say what’s going on here?

And that is why the discography of this world class entertainer is in fact an excellent metaphor for the development of negligence. Take either issue out of the context of its development leads to chaos and confusion on the part of the observer. It means that that both of these wide-spanning phenomena has its own evolution, and to see it out of that pathway will make it empty of meaning. In art, as in life, the devil is in the detail.

Next up on the blog; I am taking up @Susan_Lanigan’s suggestion of ‘Libel Laws and abuse of same’.