Liberty of expression in Ireland and the need for a constitutional law of defamation.

• Author: Frazier, Sarah

1. INTRODUCTION

   In the last several years, Irish courts have awarded ever larger damages to defamation plaintiffs.(1) Because Irish libel law weighs heavily in their favor, these plaintiffs, who are often political figures and other well known public figures,(2) generally prevail in court.(3)

   One such plaintiff was Noelle Campbell-Sharp, who won a 1997 judgment against the IRISH INDEPENDENT, a prominent newspaper company.(4) Campbell-Sharp was best known as owner of Irish Tatler magazine, which had recently gone bankrupt,(5) Hugh Leonard, a well-known Irish playwright and columnist, had criticized Campbell-Sharp in her weekly column.(6) Leonard mistakenly claimed that Campbell-Sharp owed him payment for some articles she had written.(7) Campbell-Sharp had actually just sold Irish Tatter to a larger publishing company when she commissioned the articles.(8) Campbell-Sharp won damages of IR 70,000 [pounds sterling] With costs, the judgment against the newspaper came to over 200,000 [pounds sterling].(10)

   Irish journalists and law reformers have charged that defamation liability decisions such as Campbell-Sharp v. Independent Newspapers (IRE) Ltd. have seriously impeded freedom of expression.(11) Freedom of the press is particularly endangered, as liability costs have forced Irish newspapers to be cautious about publishing controversial material and have discouraged investigative reporting.(12) Further, newspaper publishers commonly ask attorneys to read each weekly edition for potentially defamatory statements prior to printing. (13) Concerns about liability have also prevented the release or even publication of certain books in Ireland.(14)

   Yet the Irish Constitution has always recognized a right to freedom of expression, as well as a host of other personal rights.(15) After centuries of British rule ended in 1921, and most of Ireland had achieved independence, the new Irish state chose to draft a written constitution recognizing specific freedoms, rather than to adopt the English model of an unwritten constitution.(16) The current constitution of the Republic of Ireland, Bunreacht na hEireann, recognizes the right of the citizens "to express freely convictions and opinions."(17) It also calls for the State to prevent the media from undermining public order or morality, while it preserves the media's right of liberty of expression, including criticism of Government policy.(18)

   The problem is not that this language has been interpreted to guarantee an insufficient freedom of expression; rather, the problem is that Irish courts have largely failed to interpret this language at all, and when they have done so, it has been in dicta.(19) In contrast, the United States has an established tradition of constitutional review of defamation cases. In the 1964 United States Supreme Court decision, New York Times v. Sullivan, the Court held that the First Amendment's guarantee of freedom of the press and free speech placed certain limits on the traditional common law of defamation.(20) From that point on, defamation cases were subject to constitutional judicial review. In Ireland, however, there is no established tradition of constitutional judicial analysis, and the substantive influence of Bunreacht na hEireann upon Irish jurisprudence is minimal in comparison to the influence of the U.S. Constitution upon American jurisprudence. Instead, Irish courts have emphasized a continued adherence to traditional English common law, which has served as virtually the sole source of law in defamation cases.(21)

   Understanding the present state of Irish defamation law requires an understanding of why Irish courts tend to approach Ireland's constitution with what is essentially an English constitutionalist perspective. This judicial attitude is unexpected, in part, because Ireland fought a bloody war against the British in this century in order to break free from British rule. One might expect that the Irish would be equally eager to break from, or at least critique, British common law and constitutionalism. An American commentator summed up this apparent irony well:

   The struggle [for Irish independence] was conceived in the bitterness of a racial memory, conducted by both sides to the accompaniment of ... `atrocities', and concluded in an atmosphere of enduring animosity. Yet [it] is surprising that Irish leadership retained so much of its English political heritage. It is almost as if there had been a serious failure of political imagination.(22) Judicial and constitutional conservatism have allowed Irish defamation law to remain remarkably close to its English common law origins. But the common law of defamation was not designed for a modern democracy with a free press, and Ireland's libel laws have a profound effect upon freedom of expression. If Ireland is to be a modern democracy, as its constitution asserts that it is, and the European Convention on Human Rights demands, it must protect a core area of free expression in order to allow the press (without the fear of repercussion) to keep the public informed about matters of concern. Once this minimum degree of freedom of expression is attained, Irish courts can begin to weigh other interests, including the right to one's good name, against free speech interests.

   Reforming Irish defamation law is therefore essential to Ireland's status as a democracy. It is also required by Ireland's constitutional guarantee of freedom of expression. Ireland's Supreme Court should review current defamatory law and impose necessary reforms in order to render it constitutional.

   Part II of this Note will examine Irish constitutional history, with attention to the conservative, traditionally often English, influences that have led to Ireland's avoidance of an American-style constitutional review. In Part III, this Note will describe the current Irish defamation law accompanied by an analysis of the Irish decision, Campbell-Sharp v. Independent Newspapers (IRE), Ltd. This section will also survey the impact of defamation law on freedom of expression. Part IV will discuss the level of freedom of expression required by the Irish Constitution and the European Convention on Human Rights and propose reforms to the law of defamation. Part V will conclude with some final comments.

2. IRISH CONSTITUTIONAL HISTORY AND ORIGINS OF THE CRISIS IN DEFAMATION LAW

   The Irish were bold enough to fight and win a war of independence from Great Britain in this century.(23) Even now, the Irish remain in many respects suspicious of governmental authority, which they associate with British oppression.(24) Yet the Irish Constitution that was born from the ashes of British rule is essentially a conservative document, solicitous of the legal status quo.(25) A number of political forces in play during the early years of the Irish State, some of which continue today, meant that the Irish constitution was sometimes more strongly influenced by British principles of governance than more modern constitutional ideals found in the United States. Without understanding the political context surrounding the birth of the Irish Constitution, neither the current role of the Constitution in Irish law nor the particular balance the Constitution strikes as to freedom of the press makes sense, at least from the perspective of American constitutionalism.

   The history of the modern Irish state began with the Easter Rising of 1916, in which a small band of rebels occupied the O'Connell Street General Post Office in the heart of Dublin and fought off British forces for several days before they were captured.(26) Most of the leaders of the uprising were shot immediately afterwards, without trials, and outrage at their treatment by the British renewed popular interest in Irish independence.(27) Although a military failure, the uprising marked the beginning of a war that would end in late 1921 with the signing of a peace treaty between Great Britain and Ireland.(28) The Articles of Agreement for a Treaty between Great Britain and Ireland declared the existence of an Irish Free State that had "the same constitutional status ... as the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa."(29) The Treaty provided for a right to full internal governance, a military force, and international status as an independent state.(30) The Treaty also provided that a provisional government would govern Ireland until December 16, 1922, when a new constitution of the Irish free state, confirmed by the British Parliament, would take effect.(31)

   The Treaty barely passed in Dait Eireann, the Irish Parliament whose members had been elected in 1920 through electoral machinery put in place by an act of the British Parliament that same year.(32) Those who opposed the Treaty, led by Eamon de Valera, did so on the grounds that it provided peace at the expense of a united Ireland, since the counties of Northern Ireland were allowed to vote to remain British.(33) Civil war ensued in the south of Ireland, during which the majority government, consisting of Fine Gael party members and led by Michael Collins, drafted the Constitution of the Irish Free State.(34) Great Britain was consulted during the drafting, and in fact required some of the more republican(35) provisions to be altered.(36) Although Collins and his colleagues had intended the Irish Free State to be unconditionally autonomous, with no remaining obligations to Britain, the Constitution adopted in 1922 contained an oath to the Crown and procedural provisions appropriate for a commonwealth.(37)

   In addition to concern that Great Britain would not ratify the 1922 Constitution, the framers had another incentive to temper the republican influence upon the document: the Fine Gael government feared that any hopes of Northern Ireland joining the Free State would be dashed if the language offended the majority of Protestants in the North.(38) At the same...