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

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