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DEFAMATION: Denis O’Brien,Proinsias DeRossa and David Beckham.The law now in Ireland, Europe + the U.S

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David and Victoria Beckham in Silverston Circu...

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The Defamation Bill 2006 became law in 2009 with the new Defamation Act 2009 and came into effect on January 1st 2010. The new legislation abolishes the distinction between libel and slander and now there is just one claim of ‘defamation’ in its place. While the constitutional right to freedom of expression is a pertinent right and should not be curtailed in any way, it should not be abused either and the new Act sets out that it “shall protect the public interest by ensuring ethical, accurate and truthful reporting; maintain certain minimum ethical and professional standards; and ensure the privacy and dignity of the individual is protected”.

Some differences that arise in the 2009 Act, which repeals the previous Act of 1961,for example, are that proceedings must be brought within one year as oppose to the previous six years; an apology will not be regarded as an admission of liability; a money lodgement into court will not have to be joined by an admission of liability as was the previous case. Another addition this new Act brings into being is that an individual can bring a case in the Circuit Court for vindication of his good name without a claim in damages. The defences in an action to defamation have been considered and some changes or amendments have been made. The defences that can arise include truth, honest opinion, absolute and qualified privilege, consent to publication, fair and reasonable publication. This last defence is a new one under the 2009 Act and relates to matters of public importance. It is a new protection and will likely be used by newspapers where the accuracy of certain statements may be questionable.

Section 31 of the new Act allows submissions to be made and juries to be addressed and advised in relation to damages. This is likely to have been brought about after recent decisions in the Courts where damages awarded by juries have been said to be inordinately excessive. In O’Brien v Mirror Group Newspapers, Denis O’Brien successfully brought a claim against the Defendant newspaper in regard to an article containing an unsubstantiated allegation of bribing a politician. The jury awarded a sum of €317,000 which was found by the Supreme Court to be disproportionate and a retrial was ordered. The second jury awarded Mr O’Brian €750,000. The new Act now provides for the Supreme Court, on appeal, the power to substitute its own figures for that of the juries if an award is deemed to be excessive. This is not necessarily consistent with the European Court of Human Rights comments in DeRossa v Independent Newspapers. In that case the ECHR found an award of €381,000 which had been approved by the Supreme Court, not to be excessive. The European Court refused to accept arguments made that a jury should be guided on damages.

The new Act does not bring about a significant change in the law but somewhat modernises it and tightens up the area. It should be noted that the Irish and English legal systems and the relevant Acts provide more protection than, for example, in the American legal system. In the recent David Beckham case, the soccer player failed in a £15.5 million libel suit against In Touch US magazine after the magazine published an article claiming Beckham cheated on his wife with a prostitute for £2,000 per night. The prostitute in question, Ms Irma Nici sold her story to In Touch claiming that herself and another “mystery brunette” woman had sex with Beckham in August 2007 in New York’s Le Parker Meridien Hotel.

Under US law, unlike Irish law; a claimant has to prove that the publisher acted “with malice” and Beckham’s lawyers failed to establish this in his case. Judge Manuel Real dismissed his action in a Los Angeles Court house in February and stated that Beckham was in the public domain and that there was a public interest element in relation to his personal life. He further pointed out that Ms Nici had a constitutional right to “freedom of expression” and could essentially say what she wanted. Beckham’s spokesman stated that “unfortunately, the US legal system requires us to show that the magazine acted maliciously… any acknowledgeable person knows this story not to be true, and we will continue to fight this in court and the decision will be appealed”. There was no evidence against Beckham other than Ms Nici’s account of events and Beckham had put forward evidence showing he had been staying at another hotel and could not have been in the Le Parker Meridien Hotel as claimed.

[It should be noted that a similar law suit was filed in Germany against Bauer Publishing Co. (In Touch magazines German owner) in which Beckham succeeded in his claim and is awaiting damages to be paid.]

LegalEagleStar,  Wednesday, 23 rd March,  2011

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