The defence of "fair and reasonable publication in the public interest" to a defamation action has recently been considered by the Irish courts. This defence was put on a statutory footing in Section 26 of the Defamation Act 2009 (the "Act").1
The interim judgment of Mr Justice Owens in Dermot Desmond v The Irish Times Limited2 considered whether expert evidence was admissible to demonstrate that the publication in question was in "the public interest", for the purposes of establishing the defence of fair and reasonable publication in the public interest. Another recent judgment of the Court of Appeal, Bird v Iconic Newspapers Ltd3 assessed the application of the Section 26 defence in obiter comments. These judgments are of interest in the context of proposed reforms to the Act (discussed below) and the relative dearth of Irish authorities considering the application of the Section 26 defence to date.
Admissibility of Expert Evidence to Establish Section 26 Defence
The Plaintiff in Dermot Desmond v The Irish Times Limited had claimed that the Irish Times defamed him in an article published in April 2016. It was alleged by the Plaintiff that the Irish Times identification of him in the article was defamatory insofar as it linked back to earlier coverage of the so-called "Panama Papers" and the material referenced by it, and thereby wrongly suggested there was something improper about his financial affairs. The Irish Times denied these allegations and pleaded that the article(s) were published in good faith and that it was in the public interest as the subject matter of the Panama Papers related "to the growth of offshore tax and regulatory havens".4
A key issue under consideration by the court was whether the proposed evidence of economist Dr Joseph Stiglitz was admissible to establish that the contents of the article constituted a "discussion of a subject of public interest, the discussion of which was for the public benefit" within the context of section 26(1)(a)(ii) of the Act.
The court noted that the task for the trial judge was to consider whether the statement at issue was published "in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit".5 Owens J was of the view that this assessment is not a complicated task for a trial judge to carry out and that concepts such as enlightenment of public opinion or whether there was value in bringing prominent issues to public attention are easily understood and often obvious from the contents of an article6. He further held that it is not necessary to prove that society or the economy have in fact received a benefit as a result of the disclosures to establish that Section 26 applies, as this would overly narrow the defence and held that the concept of "public interest" relates to any matter which may be the "proper subject of free public comment or opinion".7 However, it was also held that the Section 26 defence is dependent on there being a real public interest in communicating and receiving the information.
In the context of the application before the Court as to whether the expert evidence was admissible, the Court considered Order 39 rule 58 (1) of the Rules of the Superior Courts, which restricts expert evidence to that which is reasonably required to enable the Court to reach a determination. The Court noted that expert evidence is admissible where the subject matter is outside common knowledge. That was not the case here and the evidence of Dr Stiglitz was not relevant to any issue to be decided, and hence was deemed inadmissible.
Ultimately, the assessment of the potential public interest and public benefit associated with the subject matter of the article was held not to require expert evidence on the economic benefit to the public arising from press disclosures of content from the Panama Papers.
Comparison to the Defence of Qualified Privilege
In another recent judgment of the Court of Appeal, Mr Justice O'Moore in Bird v Iconic Newspapers Ltd8 considered the application of the defence of qualified privilege (Section 18 (2) of the 2009 Act) to an article published by Iconic Newspapers, which it claimed was published in good faith and as part of their "lawful and legitimate duty to report on matters of concern and/or interest to the public at large". The Court of Appeal ultimately held that the publication was not issued on an occasion of qualified privilege.9 O'Moore J, in providing a useful contrast with the application of the Section 26 defence (which was not relied upon by Iconic Newspapers), noted that if Iconic Newspapers' interpretation of the qualified privilege defence was correct and it extended to publications "to the public at large", then the Section 26 defence would be completely unnecessary.10 O'Moore J clarified that the defence of qualified privilege could only apply in respect of a publication to the world at large in "exceptional circumstances", which did not arise on the facts.11
O'Moore J further held that had Iconic Newspapers relied upon the Section 26 defence, it would have failed having regard to the specific factors that the Court would consider when assessing whether it was fair and reasonable to publish the statement concerned including, (i) the extent to which the defendant represented the plaintiff's version of events; and (ii) the extent to which a reasonable attempt was made by the defendant to obtain and publish a response from the plaintiff.12
Comment
The Section 26 defence has had a limited substantive impact in defamation cases and at the date of this article appears to have never been successfully pleaded before the Irish Courts.13
The recent Dermot Desmond v The Irish Times Limited judgment demonstrates that a defendant does not need to provide expert evidence that society or the economy in fact benefitted from the publication in question to successfully rely upon the Section 26 defence and provides that the interpretation of the term "public interest" should not be overly restrictive, whereas the Iconic Newspapers judgment is a reminder of the differences between the Section 26 defence and the defence of qualified privilege.
The Report of the Review of the Defamation Act 2009 proposes a reform to simplify and clarify the Section 26 defence (along the lines applied in the UK and Canada) which would allow the defence where a statement: (1) relates to a matter of public interest; (2) the publisher reasonably believed that its publication was in the public interest; and (3) the defendant acted responsibly regarding efforts to verify the accuracy of the statement. The Draft General Scheme of the Defamation (Amendment) Bill, scheduled for priority publication, intends to give effect to this proposed amendment.
Section 26 remains an important defence in particular for traditional online and print media and the proposed reforms would be a welcome source of clarity.
If you have any questions on this article or would like further information, please contact your usual McCann FitzGerald contact.
Also contributed to by Dearbhla Hamill and Cara Conlon
Footnotes
1 Reflecting what was commonly known as the "Reynolds Defence" in English law, which is now provided for at section 4 of the UK Defamation Act 2013.
2 [2024] IEHC 134
3 [2024] IECA 62
4 [2024] IEHC 134, para 11
5 Ibid, para 49.
6 It was also held that it was for the trial judge to assess if the defence could be a suitable defence to a claim for breach of privacy.
7 Ibid, para 52.
8 [2024] IECA 62
9 Ibid, para 80.
10 Ibid, para 78.
11 Ibid, para 79.
12 Ibid, para 77.
13 Report of the Review of the Defamation Act 2009
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