1. Balancing competing rights
Irish defamation cases are increasingly replete with comments stating the need to balance the constitutional right to freedom of expression with the constitutional right to a good name.
Article 40.6.1(i) of the Constitution protects “right of the citizens to express freely their convictions and opinions”; whilst Article 40.3.2 provides that the “State shall … by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the … good name … of every citizen”. Recent cases citing these rights together include Watson v Campos  IEHC 18 (14 January 2016)  (Barrett J); Rooney v Shell E&P Ireland  IEHC 63 (20 January 2017) - (Ní Raifeartaigh J); Ryanair v Channel 4 Television  IEHC 651 (05 October 2017) - (Meenan J).
The language of balancing of competing constitutional rights is longstanding and widespread, in Ireland and elsewhere; and it is deployed in these cases to foreclose an a priori outcome where one right is automatically favoured over the other. Irish constitutional law does indeed subscribe to a hierarchy of rights in some cases (see, eg, People (DPP) v Shaw  IR 1, 63 (Kenny J)); but that is usually unprincipled and largely unworkable (see, eg, Attorney General v X  1 IR 1,  IESC 1 (5 March 1992) - (McCarthy J),  (Egan J); Sunday Newspapers Ltd v Gilchrist and Rogers  IESC 18 (23 March 2017)  (O’Donnell J) (Denham CJ, Clarke, MacMenamin and Dunne JJ concurring)); and it has not been deployed in defamation cases when freedom of expression competes with the right to a good name. Here, the approach is all about balancing, but it rarely has much, if any, impact on the analysis or outcome in the cases.
However, I’ve recently (if rather belatedly) come across another example, which is rather more to the point than usual. In the course of his judgment in Gordon v Irish Racehorse Trainers Association (No 2)  IEHC 425 (20 March 2020) Barton J commented
22 … the defence of qualified privilege amounts to a vindication of the constitutional right to freedom of expression notwithstanding the defamatory nature of the statement is injurious to the claimant’s right to a good name also guaranteed under Article 40 of the Constitution
70 … The defence of privilege provided by law in certain circumstances is underpinned by public policy grounded in the State’s obligation to vindicate as best it may the fundamental rights of the citizen guaranteed by Article 40 of the Constitution, the prerequisite to the defence being the publication of a defamatory statement about another whose right to a good name is also guaranteed and represents an attempt where a conflict arises to strike a fair balance between competing constitutional rights.
In that case, the plaintiff, Chris Gordon, head of security with the Irish Horseracing Regulatory Board (IHRB), had been the subject of an orchestrated and severe campaign against his good name by the defendants, the Irish Racehorse Trainers Association (the IRTA). The jury found he had been defamed and awarded him €300,000 – made up of €200,000 general damages, €50,000 aggravated damages, and €50,000 exemplary damages (see, eg, Blood Horse | Irish Field | Irish Independent | Irish Times | Racing Post). The defendants considered an appeal (Irish Times | Racing Post) but they do not seem to have been announced whether they will go ahead with one.
The defendants had sought to rely on the defence of qualified privilege; in Gordon v Irish Racehorse Trainers Association (No 1)  IEHC 363 (04 March 2020), Barton J declined to strike it out; and, in Gordon (No 2), he found that there was sufficient evidence to permit the jury to consider whether that defence would be defeated by malice on the part of the defendants. This was the context in which he characterised the operation of the defence of qualified privilege as an attempt to strike a fair balance between the competing constitutional rights of expression and good name.
The leading cases on the nature and extent of the constitutional right to freedom of expression at Irish law are Irish Times v Ireland  1 IR 359,  2 ILRM 161 (2 April 1998) (doc | pdf) and Murphy v Independent Radio and Television Commission  1 IR 12,  2 ILRM 360 (28 May 1998) (doc | pdf) (which I have considered here); but the insights in these cases have not been applied to or in the defamation context. Similarly, the leading cases on the nature and extent of the constitutional right to a good name at Irish law require fair procedures by public bodies (eg, In re Haughey  IR 217; Shatter v Guerin  IESC 9 (26 February 2019)); but, again, the insights in these cases have not been applied to or in the defamation context. Nor have the rights that emerge from these cases been measured and balanced against one another in any sustained way, again especially in the defamation context. Such an analysis could affect the nature of the cause of action in the tort of defamation, the extent of defences, and availability of remedies such as damages.
2. Cause of action
In Foley v Independent Newspapers Ltd  2 ILRM 61, 67, Geoghegan J held that once the competing constitutional rights are balanced, the plaintiff’s entitlement to succeed under the ordinary laws of libel was unaffected. It is unclear whether he meant this as a specific conclusion in the particular context of the individual case, or as a general conclusion relating to the law of libel. The former is more likely; certainly, it is too terse to justify the latter. Striking the balance between the competing constitutional provisions and measuring the law of defamation against that balance is a large undertaking; and in Burke v Associated Newspapers (Ireland) Ltd  IEHC 447 (10 December 2010)  Hogan J left that question for another day. In Blehein v The Minister for Health & Children  IESC 40 (31 July 2018) MacMenamin J commented that many of the rights guaranteed under the Constitution are adequately protected by the law of tort, and gave as an example that the rights to freedom of expression and to one’s good name are protected by the law of defamation (); and Charleton J made a similar point (-); Hogan J did not address the issue. Beyond these observations, neither MacMenamin nor Charleton JJ considered whether the tort properly balanced the competing constitutional rights. There may be circumstances in which striking a fair balance between the competing constitutional rights of expression and good name will change an aspect of the cause of action in defamation, but those circumstances have not yet arisen in the caselaw.
3.1 Qualified privilege
In Gordon, Barton J characterised the operation of the defence of qualified privilege as an attempt to strike a fair balance between the competing constitutional rights of expression and good name. Striking that balance will not necessarily change an aspect of that defence. For example, in Hynes-O’Sullivan v O’Driscoll  IR 436, 449, 450,  ILRM 349, 360, 361, Henchy J declined to expand the defence of qualified privilege, holding that the existing rules properly reflected that constitutional balance (emphasis added):
I have no difficulty in rejecting the submission, which has only slender judicial support, that the occasion is one of qualified privilege if the person making the communication honestly believes that the person receiving the communication has a duty or interest in receiving it. I cannot believe that the guarantee in Article 40, s. 1, sub-s. 3 of the Constitution that the State will protect, and, as far as practicable, by its laws defend and vindicate the personal rights of the citizen, would be effectuated if a right to defame with impunity is recognized on such a purely subjective basis. An occasion of qualified privilege is to be given recognition only to the extent that it is necessary under Article 40, s. 6, sub-s. 1 to recognize, on an objective basis, the right to express freely convictions and opinions. The constitutional priorities would be ignored if the law considered an occasion of qualified privilege to depend only on the honest opinion of the communicator as to the existence of a right or duty in the other person to receive the communication. The constitutional right to one’s reputation would be of little value if a person defamed were to be deprived of redress because the defamer honestly but unjustifiably believed that the person to whom the words were published had a right to receive the communication.
I consider, therefore, that the only part of the defendant’s submission which warrants serious consideration is the contention that a defendant is entitled to the defence of qualified privilege if he honestly and reasonably believed that the person to whom he published the words complained of had a duty or interest as to the matters referred to in the communication.
… I am of the opinion that the suggested radical change in the hitherto accepted law should more properly be effected by statute. The public policy which a new formulation of the law would represent should more properly be found by the Law Reform Commission or by those others who are in a position to take a broad perspective as distinct from what is discernible in the tunnelled vision imposed by the facts of a single case. That is particularly so in a case such as this, where the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name. The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature.
Notwithstanding this caution, there can be circumstances in which striking a fair balance between the competing constitutional rights of expression and good name will change an aspect of the defence of qualified privilege. For example, in Hunter v Duckworth  IEHC 81 (31 July 2003) (which I have considered here), the defendant asserted that his constitutional right to express his convictions and opinions prevailed over the plaintiffs’ rights to their good name, and thus provided a complete defence to the plaintiffs’ defamation action. Ó Caoimh J rejected this broad assertion. Rather, he considered that the rights must be balanced in an appropriate manner; and, whilst he seemed open to the possibility that this balancing could result in a fundamental re-appraisal of the law of defamation as traditionally understood, he held there were principled limits to how far process this could go:
It is clearly not the function of this Court to enter into the realm of policy formulation by suggesting reform of the law of defamation. In this regard I am influenced by the approach of Henchy J in Hynes-O’Sullivan v O’Driscoll  IR 436, 450:
“… The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature. …”. …
On the one hand, as an example of such legislative policy choices, he considered some Australian and New Zealand developments of the defence of qualified privilege, and concluded that the incorporation of a concept of reasonableness into that defence would essentially be a matter for legislative intervention (but cf (1990) 12 DULJ (ns) 50). On the other hand, as an example of how far he felt that the constitutional balance could enlarge upon the traditional view of the law on defamation, he held that guidance could be obtained from the decision of the House of Lords in Reynolds v Times Newspapers  2 AC 127,  UKHL 45 (28 October 1999), which had considered and reformulated the common law in the light of the provisions of the European Convention of Human Rights:
While the facts of that case were very different from the instant case, it does indicate that the law with regard to qualified privilege should be expanded to something close to a general public interest defence. It clearly recognises a wide interest of the public in receiving information from the press. … the flexible approach represented by … [that] decision … is the most appropriate way of approaching the problems in the instant case, in the absence of a clear legislative framework. … The approach adopted by the House of Lords has the merit of enabling the law to be developed on a case by case basis having regard to the requirements of the Constitution and the Convention which may inform the court in its approach to the interpretation of the Constitution. …
The rather complicated Reynolds qualified privilege defence was rationalised in Jameel v Wall Street Journal Europe  1 AC 359,  UKHL 44 (11 October 2006) into a simplified public interest defence; and Jameel was followed by Charleton J in Leech v Independent Newspapers  IEHC 223 (27 June 2007) (which I have considered here; this aspect of the case did not arise on either leg of the appeal ((No 1)  2 IR 178,  IESC 78 (19 December 2014) and (No 2)  2 IR 214,  IESC 79 (19 December 2014)), though Dunne J in Leech (No 1) (201, 203, 211-213, , , -) did refer to Charleton J’s approach with apparent approval. These developments seemed to have been overtaken by the enactment of the Defamation Act, 2009 (here and here) in general, and by the section 26 defence of fair and reasonable publication on a matter of public interest (also here) in particular. However, in Gordon (No 1) , Barton J considered that the common law defence of qualified privilege survived that enactment (and was thus continued in force by section 3(2) of the Act (also here)). If so, then the Reynolds and Jameel developments approved in Hunter and Leech have too (and there is, therefore, scope for the refinement of Jameel in Flood v Times Newspapers  2 AC 273,  UKSC 11 (21 March 2012) to be considered as a matter of Irish common law). Moreover, further development of these common law defences is not precluded by the Act; and that development can, even must, be guided by the constitutional balance between the right to freedom of expression and the right to a good name.
In the law of defamation, truth is a complete defence. At common law (as amended by section 22 of the Defamation Act, 1961 (also here)), this was the effect of the defence of justification; and this is now the effect of the defence of truth in section 16 of the 2009 Act (also here). The impact of the constitution on the operation of the pre-2009 version of the defence was considered in McDonagh v Sunday Newspapers  IECA 225 (19 October 2015). In the Court of Appeal, Hogan J (Kelly and Irvine JJ concurring)  considered the question of the appropriate balance to be struck between the two competing fundamental constitutional values of freedom of expression and the right to a good name, and he held that, whilst the Constitution does not permit the publication of defamatory material,
59. … if the published words are true in substance or in fact, then the author has a constitutional right by virtue of Article 40.6.1(i) to publish these words as part of his or her “convictions or opinions.” This is especially true in the case of the media whose “rightful liberty of expression” is a key component of Article 40.6.1 itself.
60. It is clear, therefore, as confirmed by the language of Article 40.6.1 itself, the Constitution ascribes a high value to the discussion by the media of matters concerning serious criminality. The right to educate and to influence public opinion is at the heart of the rightful liberty of expression protected by Article 40.6.1. A publication of the kind at issue in the present proceedings provides the public with further details of the Garda operation whereby high value illegal drugs were seized. It is, accordingly, through information provided in this manner that public opinion regarding matters such as the effectiveness of policing policy, the enforcement of our drugs laws, the level of organised crime in society and other related matters is ultimately formed. …
He held () that it followed that the media’s constitutional right to publish true material could not be compromised by a jury verdict that it is defamatory of the plaintiff, and he concluded () that such a verdict was, in essence, perverse.
However, on appeal, in McDonagh v Sunday Newspapers (No 1)  IESC 46 (28 June 2017) Charleton J (Denham CJ, and O’Donnell, Dunne, and O’Malley JJ concurring) reversed Hogan J’s decision and restored the jury’s verdict; and he took a very different approach to the question of balance between freedom of expression and the right to a good name. He held that that the balance between those rights is to be found in the law of defamation (), and that any substantive change in that framework is a matter for legislation (). And he took a much narrower view of Article 40.6.1(i) than Hogan J had taken in the court below (emphasis added):
The Constitution and the truth
28. The “right of the citizens to express freely their convictions and opinions” is guaranteed in Article 40.6.1. In itself, that is not an answer in itself to a defamation action. That right of expression is made expressly “subject to public order and morality”. In acknowledging that the “education of public opinion” is “a matter of grave import to the common good”, that Article, requires that, “while preserving their rightful liberty of expression, including criticism of Government policy”, the “organs of public opinion, such as the radio, the press, the cinema … shall not be used to undermine public order or morality or the authority of the State.” It is thus not certain that precisely because something is true that there is an entitlement to express it. … Where would such a broad declaration of a supposed right to always express fact leave the right to privacy? Further, to guarantee the right to express “convictions and opinions” does not necessarily encompass the right to broadcast a view simply because it is believed to be true. These rights are guaranteed for the promotion of the “true social order” which the preamble to the Constitution sets out as its aims. …
The emphasis here on the limitations on the right, and the narrow reading of “convictions and opinions”, are unhappily reminiscent of the approach of O’Higgins CJ for the Supreme Court in State (Lynch) v Cooney  1 IR 337, 361;  ILRM 89, 91. On the other hand, as a matter of principle, rights are to be interpreted broadly, and exceptions are to be interpreted narrowly. As a consequence, in Irish Times v Ireland, Barrington J held that the right to freedom of expression protected by Article 40.6.1 “is a positive right which the State is pledged to defend and the function of the court is to preserve the balance between the guarantee and the reservations in such a way as to give to the right guaranteed life and reality” (); this is because, as he emphasised, in “this context it is important to remember that we are construing, not a revenue statute, but a constitution” ( (which I have discussed here)). In the same case, O’Flaherty J therefore held that the protection of freedom of expression in Article 40.6.1 “is not confined to mere expressions of convictions and opinions” ( (O’Flaherty J)) but includes at least a right to communicate facts as well as a right to comment on them (, ,  (Barrington J); cp  (Denham J); cf - (Keane J)). This point was unanimously approved by the Supreme Court in Murphy v IRTC  (Barrington J; Hamilton CJ, and O’Flaherty, Denham and Keane JJ concurring).
For all that Hogan J in the Court of Appeal may have overstated the impact of the citizen’s Article 40.6.1(i) constitutional right to publish his or her “convictions or opinions”, it is equally clear that Charleton J in the Supreme Court understated it. There is still room, somewhere between these two views, for the interpretation of defence of truth (now in section 26 of the 2009 Act) to be guided by the constitutional balance between the right to freedom of expression and the right to a good name.
3.3 Innocent dissemination
In Jones v Coolmore Stud  IECA 164 (25 May 2017) , ,  (Ryan P (Irvine and Barr JJ concurring) mentioned the competing rights in the context of the defence of innocent dissemination in section 27 of the 2009 Act (also here), but did not develop a balance between them or apply it to the interpretation of section 27. The case was subsequently struck out (Jones v Coolmore Stud  IECA 116 (27 April 2020)).
The balance between the right to freedom of expression and the right to a good name has been implicated in many cases concerning the proportionality of defamation damages awards. As Hogan J (Peart and Irvine JJ concurring) put it in Christie v TV3 Television Networks  IECA 128 (04 May 2017) :
This constitutional balance necessarily implies that an award of damages for defamation must be measured and proportionate. An excessive award plainly impacts on the right of free speech and the special role which Article 40.6.1 ascribes to the organs of public opinion in the respect of “their rightful liberty of expression” and the “education of public opinion.” … On the other hand, an award of damages which did not adequately compensate the party defamed for injury, personal hurt and damage would amount to a failure to give effect to the substance of the guarantee of good name contained in Article 40.3.2.
This was approved in Kinsella v Kenmare Resources  IECA 54 (28 February 2019) ,  (Irvine J) (Whelan and Baker JJ concurring) and Nolan v Sunday Newspapers  IECA 141 (15 May 2019)  (Peart J) (Whelan and Baker JJ concurring). Nevertheless, the courts have held that the common law rules relating to defamation damages were consistent with the constitutional balance. For example, in de Rossa v Independent Newspapers  4 IR 432, 449, 456,  IESC 63 (30 July 1999) -, - Hamilton CJ (Barrington, Murphy Lynch JJ concurring) (cf 473,  (Denham J) (dissenting)) followed Hynes-O’Sullivan to require “a due balancing” of speech and good name, and held that the common law rules relating to defamation damages properly balanced those rights. This decision was affirmed in O’Brien v Mirror Group Newspapers Ltd  1 IR 1,  IESC 70 (25 October 2000) (on balancing, see ,  (Keane CJ)). And it was approved and followed by Dunne J (Murray J concurring) in Leech (No 2)  2 IR 214, 265-267, 282-283,  IESC 79 (19 December 2014) (cf 223, 224, , - (McKechnie J) (dissenting)). Dunne J repeated her Leech comments in McDonagh v Sunday Newspapers (No 2)  IESC 59 (27 July 2017)  (Dunne J) (see also - (O’Donnell J), - (McKechnie J),  (MacMenamin J)); see also Kinsella v Kenmare Resources  IECA 54 (28 February 2019).
It is unlikely that these conclusions would be altered in the context of the damages provisions in section 31 of the 2009 Act (also here). For example, in considering section 31 in Nolan (), Peart J also referred to and followed Dunne J in Leech (No 2).
5. Related contexts
The balance between free speech and good name in defamation cases has been adverted to briefly in other, related, contexts. For example, O’Donnell J in Shatter v Guerin  IESC 9 (26 February 2019)  (McKechnie, Dunne, Charleton, and O’Malley JJ concurring) commented that “the legal protection of a person’s good name as required by the Constitution is to be found in the law of defamation”, and that, in that context, a media organ “is not required to afford a person Haughey rights” that public bodies must. On the other hand, in Desmond v Moriarty (No 1)  1 IR 334, 370-372,  IESC 3 (20 January 2004) [23.iii] (Denham J; McGuinness and McCracken JJ concurring) and Desmond v Moriarty (No 2)  IESC 34 (27 July 2018)  (McKechnie J; MacMenamin and O’Malley JJ concurring) the Supreme Court held that the right to freedom of expression of the respondent Tribunal outweighed the applicant’s rights to good name and privacy.
Although many cases cite the constitutional right to freedom of expression in opposition with the constitutional right to a good name, very few actually seek to balance one against the other. An argument by one party based on one of the rights is usually sufficiently met with a judicial reference to the other. There has been little attempt to balance one against the other in the way that, for example, Lord Steyn sought to balance the interplay between Articles 8 and 10 ECHR in Re S (a child)  1 AC 593,  UKHL 47 (28 October 2004) ,  (Lords Bingham, Nicholls, Hoffmann, and Carswell concurring); see also Attorney-General’s Reference No 3 of 1999  AC 145,  UKHL 34 (17 June 2009)  (Lord Phillips; Lords Hope, Walker, Brown and Neuberger concurring). The balance needs to the struck, and then consistently applied, in the kinds of defamation contexts discussed above.
This post originally appeared on the Cearta.ie blog and is reproduced with permission and thanks