Freedom of speech is a contentious subject. Academically, it can be argued as both good and bad for society, with the right to freely express your opinion being marred by the court’s responsibility to protect the reputation of Irish citizens. The media provides the largest platform for people’s opinions and therefore, must be highly regulated, however, there is no distinct and separate law for the media. As Marie McGonagle mentioned ‘In short, media law is that myriad of laws that relate to the media and affect media activities.’[1] The Irish democracy has always been one to try and protect the right to free speech, with the government almost never exercising their ability to censor certain items in the media despite the Constitution expressly mentioning that the rights to freedom of speech and expression ‘are not absolute and therefore authorises their restriction in support of other rights.’[2] While a 97 out of 100 rating may seem high, it can be viewed as quite accurate to the Irish judiciary and their leniency towards preventing the suppression of their citizen’s opinions.
One point in favour of Freedom House’s assessment of the state of media freedoms in Ireland, is how the Irish Judiciary and the Irish Government are continually ensuring that the law accurately represents the current social views of their population. This is an important element of Irish law as if the judiciary does not uphold the views of the people, the rigidity of the law will ensure the development of an unhappy and unrepresented population. If the law doesn’t accurately mirror the views of it’s citizens, then their voice isn’t being heard and their freedom of expression can be seen as limited. An important component to bring into play here is the tendency of the court to allow a potentially insulting and defamatory statement to stand if it is for the good of the public. If the general population’s views are not considered, then this defence is moot. A perfect example is the recent blasphemy referendum. This was on Article 40.6.1 of the Constitution, and a vote on whether the word ‘blasphemous’ should have been removed. Once the public vote had been decided in favour of the removal, the phrase was absolved by President Higgins. By listening to the opinions of their people and ensuring the law accurately represents them, the Irish judiciary is always able to determine whether potentially defamatory statements were for the good of the public depending on their views on the very essence of it.
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A case that highlights the desire of the Irish judiciary to evolve the law alongside the views of the people is Reynolds v Malocco, the latter being a disgraced ex solicitor who made a defamatory statement about the plaintiff saying he was a ‘gay bachelor’ and was ‘tolerating the sale of illegal drugs in his club.’ The defendant represented himself and argued that his use was of the term ‘gay’ was in the sense of the old-fashioned meaning light and happy. Justice Kelly dismissed this argument stating that the modern meaning had displaced the former one, keeping with the current social views.
Defamation is a major element of media law. It is defined, by the Collin’s dictionary, as ‘the damaging of someone’s good reputation by saying something bad or untrue about them.’ The word reputation is hard to define. David Howarth wrote ‘Although acknowledging that there is something called ‘reputation’, the protection of which has to be balanced against the competing value of freedom of speech, it failed to ask what precisely ‘reputation’ is and why it might be valuable.’[3] It has been noted, however, that the term reputation is ‘an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being’[4]. A statement will only be deemed defamatory if it tends to injure one’s reputation in the eyes of reasonable members of society.
Ireland introduced the Defamation Act (2009) to shed some light on this important topic. It was followed by the British version, the Defamation Act 2013, which Alastair Mullis and Andrew Scott mentioned was ‘intended to allow scientists, online commentators, non-governmental organisations and others to introduce facts, criticism, comment and condemnation into public discussions without undue fear that their contributions will result in legal repercussions.’[5] Ireland and the United Kingdom have always been very close in the standards they set for their citizens so it can be seen as likely that if the UK is attempting to loosen their grip on the freedom of speech of their citizens, Ireland may be set to follow, which points to the rating by Freedom House being an accurate one. However, an important part of the Defamation Act 2009, is that, through Article 6.5, defamation is ‘actionable without proof of special damage.’[6] This means that a plaintiff need not prove actual loss. So, while the Irish judiciary seems reluctant to suppress any freedom of speech by its citizens, they also ensure that falling into the category of a defamatory statement is easier than it seems. Along with the maximum damages being increased to €50,000, this may act as a deterrent to potential journalists and writers etc, which in itself is restricting the freedom of expression, though not expressly.
Eoin Carolan and Ailbhe O’Neill mentioned how, previously, ‘it was argued for many years that the Irish law of defamation attached insufficient importance to the media’s freedom of expression and was weighted far too heavily in favour of the individual’s right to a good name.’[7] This statement in itself seems to completely undermine the point made by Freedom House in their current rating, however, the two also went on to say that ‘in more recent decades, however, there occurred something of a shift in the legal protection provided by the media’s freedom of expression.’ The Defamation Act 2009 plays a huge part in this. O’Dowd said, ‘the Act something not far short of a complete restatement of the law of defamation.’[8] Ireland’s recent emergence as a country comfortable with the freedom of speech can be associated with the changes the 2009 Act made to the available defences. For starters, the fair and reasonable publication was introduced on matters of public interest. Section 26 states that it will be a defence if the defendant proves that the statement made was published ‘in good faith’ and ‘in the course of…. the discussion of a subject of benefit to the public’, while being a ‘fair and reasonable’ publishing. The introduction of a new defence seems to highlight the judiciary’s desire to create more freedom for the Irish citizens by giving them more opportunities to defend their point of view. The defence of honest opinion also backs this claim with the defendant simply having to prove that they honestly believed in what they were publishing. Furthermore, the Act also introduced the defence of innocent publication where the defendant only need prove that they were not an author, editor or publisher of the statement, they took reasonable care in relation to its publication and they had no knowledge that what they did attributed to the publication of the statement.
All the defences mentioned in the above paragraph, would encourage me to agree with Freedom House’s assessment of Freedom of Speech within the Irish media. However, there is one major element that may have been overlooked in their review, Irish media ownership. The market for Irish media can almost be called oligopolistic. A few select major enterprises seem to run a large portion of each form of media. Take RTÉ for example. In a recent study by the Advisory Group, it was found that they had ‘almost 70% of the market in national radio’[9] and was ‘the only supplier of terrestrial television in Ireland up until the late 1990’s.’[10] It is almost impossible for there to be complete freedom of speech if all news articles and information is coming from the one source. This creates a monopoly effect, ensuring that RTÉ essentially controls what people read and hear. A country that has only one real source of information cannot be considered true freedom.
This is also the case with Irish newspapers. Regional and local newspapers seem to hold reasonable market shares, however, the picture for Sunday papers ‘was different with Independent News Media’s wholly owned publications constituting 48% of the market share’[11] which increased to 92.2% upon ‘the inclusion of publications which Independent News Media had an interest in (as opposed to wholly owned).’[12] A monopoly of this magnitude can potentially restrict a population’s ability to have their own opinion due to it being swayed by the information produced by a single newspaper. Since there are very little alternatives available, citizen’s will only be able to base their opinion on the articles that Independent News Media publish. This goes against the core values of the freedom to express your opinions. If your opinions are only based on what you are allowed to see they lose their identity as ‘your’ opinions and become something else entirely.
A quick point worth mentioning is whether or not the Irish control over the freedom of expression should be tightened. There was a recent event where an interracial couple were brought under fire when they featured in a Lidl billboard advertisement. What followed was a myriad of racial abuse and vulgar comments online. In a recent interview with Ryan Tubridy, the couple spoke of how, due to the amount of death threats they had received, they had considered moving to the UK despite calling Ireland their home and expressing a desire to never leave. Events like these point to the need for a tighter hold on the freedom of social media and how people can express their opinions online. The freedom associated with social media can be incredibly harmful if it is used for the wrong purposes and therefore begs the question: what can be done to try and prevent it?
Overall, I feel the rating given by Freedom House to Irelands ability to create freedom of speech might be a little high. As a country, we pride ourselves in ensuring that there are multiple defences available in a defamation case and that the current social views are mirrored in legislation and common law. However, with a major element like the potential monopoly throughout Irish media ownership, it must be noted that there is an available wiggle room for the Irish rating to drop slightly. Our judiciary will most likely still favour promoting freedom of speech however the recent Lidl billboard fiasco also calls into question the effectiveness of the current law surround freedom of speech on social media and makes me question: is it time to tighten the noose even further?
- Marie McGonagle, ‘Media Law’ (2nd Edition)
- Marie McGonagle, ‘Media Law’ (2nd Edition)
- Howarth, David ‘Libel: Its Purpose and Reform’ (2011) 74 Modern Law Review 845 – 877 < '>https://www-jstor-org.ucd.idm.oclc.org/stable/41302636?pq-origsite=summon&seq=1#metadata_info_tab_contents> (Accessed 31 October 2019)
- Reynolds v Times Newspaper Ltd [2001] 2 AC 127, 201. (Lord Nicholls)
- Mullis, Alastair and Scott, Andrew ‘Tilting at Windmills: the Defamation Act 2013’(2014) 77 Modern Law Review 87 < '>https://onlinelibrary-wiley-com.ucd.idm.oclc.org/doi/epdf/10.1111/1468-2230.12057> (Accessed 31 October 2019)
- The Defamation Act 2009
- Eoin Carolan and Ailbhe O’Neill, ‘Media Law in Ireland’ (2nd Edition)
- O’Dowd, T. John ‘Ireland’s New Defamation Act’ [2009] 2 Journal of Media Law 173, 182.
- Eoin Carolan and Ailbhe O’Neill, ‘Media Law in Ireland’ (2nd Edition)
- Eoin Carolan and Ailbhe O’Neill, ‘Media Law in Ireland’ (2nd Edition)
- Eoin Carolan and Ailbhe O’Neill, ‘Media Law in Ireland’ (2nd Edition)
- Eoin Carolan and Ailbhe O’Neill, ‘Media Law in Ireland’ (2nd Edition)
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