Bloggers could lose immunity from defamation actions over court reports

The Issues Paper on Privilege for Reports of Court Proceedings under the Defamation Act 2009 invites views on four issues relating to the absolute privilege for reports of court proceedings.

Under section 17 of the Defamation Act 2009, there is an absolute privilege in respect of a defamation action where the claim is about a “fair and accurate” report of proceedings or decisions publicly heard by any court in Ireland, Northern Ireland, or any international court or tribunal to which the State is a party, such as the Court of Justice of the European Union (CJEU).

The High Court held in Philpott v Irish Examiner Ltd [2016] IEHC 62 that a “fair and accurate” report of proceedings could include an abridged report or summary of proceedings, that it need not be word for word, and that such summarised reports could still attract absolute privilege, provided they did not contain substantial inaccuracies and were generally fair. Therefore, “fair and accurate” reports in blogs or on social media are covered by absolute privilege.

The issues paper seeks views on four issues relating to privilege:

• Issue 1 examines the meaning of a “fair and accurate” report of court proceedings. The Commission asks whether the current interpretation of “fair and accurate” under section 17 of the Defamation Act 2009 is sufficiently clear, taking account of the guidance given by the High Court in Philpott v Irish Examiner Ltd.
• Issue 2 examines the scope of the absolute privilege for a “fair and accurate” report of proceedings in court. The Commission seeks 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 asks whether the existing law should be reformed to restrict absolute privilege to a limited group of prescribed persons. The Commission also examines 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 asks 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. Similar bodies in other Europe countries have been given oversight functions for “citizen journalists” such as bloggers.
• Issue 3 seeks the views of consultees on 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 (perhaps due to having to meet a strict publication deadline), and which would apply unless malice was established.
• Issue 4 asks 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.

The Law Reform Commission is welcoming submissions by close of business on Friday 26 October 2018, with more information about how to submit a response available from the Commission’s website.