It has been reported that an application for prior restraint Under Ireland’s new Defamation Act 2009 has been dismissed by Justice Kearns President of the High Court. Charity boss Michael Meegan sought to to restrain publication by The Irish Mail on Sunday of allegations that he had made inappropriate sexual advances to males in Kenya. Meegan denies the allegations.
The Application was based on the new provision section 33(1) of the Act;
33.(1) The High Court, or where a defamation action has been brought, the court in which it was brought, may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion—
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.
(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order provided that such reporting does not include the publication of the statement to which the order relates.
Although the test appears to be lower that the UK test in Bonnard v Perryman, The Court held that there was reasonable evidence to justify the allegations and refused to restrain publication. It also rejected the argument for restraint under privacy.
The Defamation Act 2009 came into force on 1st January 2010, and repeals previous legislation. The new Act sets and codifies the law of defamation setting out defences of justification, qualified and absolute privilege and fair comment. It includes provision for offers of amends and retains a law of Blasphemy. It is similar but not identical to the UK law of defamation.
In relation to fair comment it provides significant guidance on the critical between comment and fact;
21.—The matters to which the court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, shall include the following: (a) the extent to which the statement is capable of being proved; (b) the extent to which the statement was made in circumstances in which it was likely to have been reasonably understood as a statement of opinion rather than a statement consisting of an allegation of fact; and (c) the words used in the statement and the extent to which the statement was subject to a qualification or a disclaimer or was accompanied by cautionary words.
It is doubtful whether the an Irish Court would have reached the same decision as the recent UK Court of Appeal decision in Singh in the light of this guidance.