People with the money to do so hire lawyers to shut down unflattering reporting about them that is in the public interest.
That was the clear conclusion from research I was recently contracted to do for the global press freedom group the International Press Institute, which involved interviewing journalists and editors throughout Ireland’s media sector.
Ireland is renowned for having some of Europe’s strictest libel laws. As someone who began working within the Irish media only in 2020 after about a decade working for international outlets around Europe, the difference in atmosphere was immediately evident.
The problem was acknowledged by the Minister for Justice Simon Harris this week as he laid out a planned defamation reform, saying it should not be perceived as a “rich man’s law”.
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Conducting the research was an opportunity to get into detail about how the current situation restricts the information the public is allowed to know.
I found out that a landlord who planned to evict an entire apartment block threatened legal action against a reporter who wanted to write about it. Not only that, but the landlord also threatened the tenants they were about to evict, warning them that they too would be sued for defamation if they dared speak to the press.
A civil society organisation was threatened with a defamation suit for its work highlighting privatisation in healthcare by a business that had interests in the sector. The group was forced to shut down all campaigning on the issue even though the case never made it to court.
Journalists who ask for comment from politicians have been known to receive defamation letters in response. Legal letters have become so routine that some journalists spoke of being threatened with legal action once or twice a year.
All these were among the examples of legal intimidation that were disclosed in the course of my research.
It’s not the case that journalists simply need to be more careful not to flout the law. Reporting is shut down irrespective of whether complainants have a strong legal case or not.
That’s because onerous costs are imposed on media organisations long before any cases reach court.
Regardless of the merits of a complaint, the fees required to consult solicitors whenever defamation threats are received are a serious burden, particularly for smaller news organisations.
“We obviously try not to let the fear of being sued change what we cover, but it’s there hanging over us all the time,” an editor of a small publication told me.
“We know that even if we get everything right, a person could sue us, and we’d have to defend the case, which would cost a minimum of tens of thousands of euro.”
My research suggested insurance companies have also pressured media organisations to agree to settle complaints as a condition for offering indemnity insurance.
This is all because of Ireland’s record of massive defamation payouts and trials that have been described by the International Press Institute as “wildly unpredictable”.
Ireland has seen defamation payouts of hundreds of thousands of euro and as high as €1.25 million.
For context, typical damages in the Netherlands range from €1,000 to €5,000 while Austria caps damages at €50,000 for the worst cases.
Ireland’s level of damages could bankrupt some media organisations at a stroke, and the mere cost of going to court can be completely prohibitive for an industry under serious economic pressure.
The advice to media organisations often boils down to: cut your losses, apologise, and delete the reporting from public view – regardless of whether it’s true or not.
Sadly, all too often that can mean that risky articles are never written in the first place.
Irish journalists often use the phrase “to get something legalled”, which refers to the routine practice of sending articles for legal vetting before they can be published to reduce the chance of getting defamation letters.
“Some people are serial litigants and that makes people wary of going near them in terms of media coverage,” one reporter at an Irish outlet told me.
“This is particularly problematic if the people concerned are politicians, which has been the case with me. It is undemocratic not to report on certain politicians because you are fearful of legal action even when you know a story is true and in the public interest.”
In effect Ireland’s legal system is being abused for the purposes of aggressive image management.
Irish journalists and the public should know that it doesn’t have to be like this. Elsewhere in Europe, the press operates without this level of constraint.