The Law Reform Commission's recently published Issues Paper, Privilege for Reports of Court Proceedings under the Defamation Act 2009, is intended to invite debate around the extent to which online reporting and social media commentary on court proceedings should continue to benefit from legal protections currently available under the Defamation Act 2009.
Section 17 of the Defamation Act 2009, which confers a defence of "absolute privilege" in respect of "fair and accurate" reporting of court proceedings, has traditionally been interpreted broadly by the Irish courts and has been found to apply not only to reports prepared by journalists working through traditional media but can extend to any members of the public who comment online on court proceedings. From a policy perspective, the wide interpretation of section 17 is a recognition of the important role played by court reporting in the administration of justice and the clear public interest in allowing easy access to information on court proceedings.
The advent of the internet has heralded a new form of “citizen journalist” and a gradual move away from the general public's reliance on traditional media's reporting of court proceedings. Recent years have seen a dramatic rise in online and social media commentary on legal proceedings with many comments posted on blogs, message boards and discussion forums as well as the potential for content to "go viral". The anonymous nature of the internet means that defamatory content, capable of causing serious reputational damage, can be posted instantly by unidentified individuals who are not subject to any significant oversight or regulation.
Against that backdrop, it seems timely to pose questions as to the extent to which protections originally intended to apply to more traditional reporting methods should be available in respect of less regulated forms of online commentary on legal proceedings?
With these issues in mind, the Law Reform Commission has opened the debate on the extent to which our defamation laws may need to be reformed to reflect the significant role that the internet now plays in reporting on court proceedings. Among the questions posed by the Law Reform Commission are:
- Should the absolute privilege for "fair and accurate" reporting of court proceedings apply not only to "professional journalists" but also to "citizen journalists" including social media users and bloggers?
- Whether the absolute privilege in respect of "fair and accurate" reporting should apply only to "bona fide members of the media" or those who subscribe to a specific set of standards to be prescribed by recognised bodies such as the Press Council or the Broadcasting Authority of Ireland?
- Should there be a new defence of qualified privilege available which would apply in the event that a report is found not to be a "fair and accurate" report of court proceedings but where there is no evidence of malice?
The Law Reform Commission has asked that any interested parties would submit their observations not later than 26 October 2018.