6.1 Defamation and Court Reporting
In 2016 the Commission began work on a project to examine the law concerning court reports and the Defamation Act 2009. The project arose from a request to the Commission made in December 2015 by the Attorney General, in accordance with section 4(2)(c) of the Law Reform Commission Act 1975. Section 17 of the 2009 Act currently provides for absolute immunity from defamation claims for “fair and accurate” reports of court proceedings. The Attorney General’s request raises the question as to whether, if a court report does not meet the test of “fair and reasonable” because of some unintended minor error, the 2009 Act should provide that such a court report is actionable in defamation only on proof of malice, that the proposed plaintiff should be required to seek leave of the Court before instituting proceedings, and that some proof of malice be demonstrated on affidavit. The Commission published an Issues Paper on this subject in 2018. The Issues Paper sought views on 4 Issues relating to the privilege for reports of court proceedings, specifically:
- the meaning of a “fair and accurate” report of court proceedings and whether the current interpretation of “fair and accurate” under section 17 of the Defamation Act 2009 is sufficiently clear.
- the scope of the absolute privilege for a “fair and accurate” report of proceedings in court. The Commission sought views on whether it should remain the case that the “fair and accurate” absolute privilege is available to both professional journalists and to others such as bloggers or “citizen journalists.” The Commission also asked whether the existing law should be reformed to restrict absolute privilege to a limited group of prescribed persons. The Commission also examined what criteria might be used to determine membership of such a group, and whether it should be similar to the position that applies to reporting family law and child care proceedings, which are limited to “bona fide members of the press” and other specified persons carrying out research on the courts. The Commission also asked whether the privilege should apply to any person, whether professional journalist or otherwise, who would be subject to some oversight body similar to the Press Council or the Broadcasting Authority of Ireland.
- the merits of introducing a new qualified privilege for reports of court proceedings that would apply where the report did not meet the “fair and accurate” standard in the 2009 Act, and which would apply unless malice was established.
- whether there should be a requirement to obtain leave from the Court for any proposed new qualified privilege, and to demonstrate on affidavit the malice alleged. The current law requires both parties to swear an affidavit verifying their allegations; and the Paper asks whether this provides sufficient protection against unfounded defamation claims.