The Gazette 1991

NOVEMBER 1991

GAZETTE

L RC proposals on defamation, contempt and libel In January, 1989 the Attorney General requested the Law Reform Commission to examine the law of defamation and contempt. In three recent consultation papers the Commission has set out proposals for a thorough modernisation of the law on civil defamation, contempt of court, and criminal libel.

proposal for the introduction of a new remedy of declaratory judg- ment that would provide a plaintiff with a speedy method of correcting a false statement, and the proposal to abolish the common law rule that 'malice' defeats the defence of 'fair comment'. The comprehensive suggestions for reform include the abolition of the distinction between libel and slander which, the Commissioners observe, is no longer tenable in our technological age. A new definition of defamation is set out which, interestingly, contains within it the proviso that: "matter shall not be considered injurious to the plain- tiff's reputation if it states that s/he upheld, assisted or complied with the law in any way." Among the remaining proposals are provisions that: while juries should indicate at what level damages should be assessed, the actual amount should be determined by the judge; a new cause of action in respect of defamation by the dead; and immunity from defamation actions for printers and distributors. Finally, an appendix to the paper deals with the development of a right to privacy in Irish law. The Commissioners conclude that a line has emerged in the Supreme Court recognising privacy as an unspeci- fied personal right under the Constitution - albeit almost exclusively within the context of family relationships - but with potential for further development in future cases. Since its publication the Com- mission held an all day public symposium on the topic at the end

of April attended by, particularly, representatives of the print and electronic media. Following this, submissions on its reform proposals were received by the Commission from interested parties. It is likely that the Commission's final pro- posals for changes in the law of defamation will be presented to Government and published before the end of this year. Free Speech or Fair Trials? Consultation Paper on Con- tempt of Court. Law Reform Commission, July, 1991. 447pp £20.00 In a society hungry for information and where transmission of news is instantaneous, how best can be a balance be achieved between the competing claims of the public's right to know and a defendant's right to a fair trial? In the second phase of its examination of the law on defamation and contempt, the Law Reform Commission's con- sultation paper on Contempt of Court grapples with this key issue. Commenting that the current law may be considered 'archaic' and 'out of touch', the Commission has, again, set out a thorough examina- tion of the current law in this country coupled with extensive examination of case law and research findings in other juris- dictions. The first 10 chapters provide a valuable guide for practitioners, dealing with: con- tempt in the face of the court, scandalising, sub judice rule, acts that interfere with the course of justice, civil contempt, jurisdiction, the roles of judge and jury, and contempt in relation to tribunals. 319

Free Expression or Fair Name? Consultation Paper on the Civil Law of Defamation Law Reform Commission, March, 1991. 467pp £20.00 Introducing their proposals for reform the Commissioners say that it is generally agreed that the law of defamation should protect and vindicate so far as possible the individual's right to his/her good name and the right of free ex- pression. "Both of these rights are expressly guaranteed by the Con- stitution, but our law of defamation which has remained unaltered for nearly 30 years does not provide in modern conditions a satisfactory framework for ensuring that they are adequately protected." Following a thorough examination of the existing law in this and other common law jurisdictions, the Commissioners have departed slightly from their usual format by setting out an examination of the law in the United States, observing that: "American jurisprudence on defamation has undergone a radical transformation in the past 25 years and has rejected much of the com- mon law framework in this area. Secondly, the changes effected were achieved under a Constitu- tional guarantee of free speech. The parallel wi th Ireland is obvious". Then follows an analysis by the Commission of the merits (and drawbacks) of United States defamation law. Clearly, many of the proposals have been influenced by this exercise such as the conclusion that the retention of defamation as a 'strict liability' wrong is no longer justified, the