The right to be informed of issues of legitimate public interest has been validated over the past week or so in the outcomes of two sets of court proceedings. Although both relate to businessman Denis O’Brien, and carry some additional weight by underlining that different rules do not apply to the super-wealthy, their import is greater than the fate of any individual litigant. One vindicates the constitutional right of parliamentarians to speak freely in the public interest and the other is supportive of the media in its role as the eyes and ears of the public.
In a unanimous ruling on Tuesday, the Supreme Court dismissed an appeal by O'Brien over statements made in the Dáil about his banking affairs.The court ruled that interference by it in how an Oireachtas committee dealt with O'Brien's complaint about the comments was impermissible under article 15 of the constitution which confers privilege on parliamentary speech. The court concluded that intervention by it would amount to an "indirect and collateral" interference in the constitutional separation of powers between the legislature and the courts. It held out the prospect of such interference in the event of "egregious or persistent" failure by the Oireachtas to vindicate the rights of a citizen but said O'Brien's case fell a long way short of this.
Any individual must have the right to defend their reputation but the mechanism to do so should be fair and proportionate
The court was delivering a second blow to O’Brien who, four days earlier, had lost a 17-day action against the Sunday Business Post in which he claimed he was defamed in 2015.
Although the conclusions of both cases were negative for O'Brien, there were significant differences between them. In one, the Supreme Court provided clarity in relation to the primacy of parliamentary privilege. In tandem with an earlier judgment on the poor treatment of Angela Kerins by the Public Accounts Committee, the court has defined the rules of engagement pertaining to the constitutional protections afforded Oireachtas members when they speak in parliament and at parliamentary committees.
The Department of Justice must address the chilling, costly and largely hidden effects of a regime which is unfairly tipped against the media
Unfortunately, no such clarity emerged from the case involving the Sunday Business Post. Rightly heralded as a great day for journalism and a validation of the journalists involved, it was most effective in highlighting the risks posed by Ireland's high-wire defamation regime where the cost of legal actions can be ruinous. Any individual must have the right to defend their reputation but the mechanism to do so should be fair and proportionate. In that regard – and at the very least – Ireland should follow the UK in requiring a litigant to show serious harm has been caused by the subject of a complaint. Lesser issues should be handled by the Press Council.
As the Department of Justice completes a long anticipated review of the Defamation Act on behalf of Minister Charlie Flanagan, it must address the chilling, costly and largely hidden effects of a regime which is unfairly tipped against the media but, more fundamentally, undermines a precious freedom: the publication of material about which the public has a right to know.