Irish Examiner view: Progress of Defamation Bill falls short of gold standard

There is now doubt over whether the long-awaited and much-needed legislation will make it over the finishing line before a general election is called
Irish Examiner view: Progress of Defamation Bill falls short of gold standard

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As this is the season for expressions of athletic endeavour, we think it is prudent to wait to see whether the plans to reform Ireland’s defamation law stagger over the finishing line some time this autumn. And then we will give them a bronze medal.

Certainly, there are some matters to celebrate. It is welcome that the Defamation (Amendment) Bill 2024 will introduce protection against strategic lawsuit against public participation (slapp) cases.

These are legal instruments used almost exclusively by rich and powerful individuals or corporate entities to intimidate critics by engulfing them in exhausting and financially punitive actions, often across multiple jurisdictions.

Typically, they involve highly aggressive pre-action correspondence and the application of relentless pressure through the courts, usually against less well-heeled opponents. They can cover a wider range of issues including data protection, and privacy. They are a direct attack on freedom of speech and a form of prior restraint.

We are less convinced that removing juries from the calculation of libel damages will provide quite the balm that supporters hope.

Awards may still remain too high with judges leaning towards Shakespeare’s 1604 definition in Othello: “Good name in man and woman, is the immediate jewel of their souls. Who steals my purse steals trash; But he that filches from me my good name robs me of that which not enriches him, and makes me poor indeed.”

To this end it is highly disappointing that the Government has ducked calls to introduce a “serious harm” test, such as has existed in Britain for more than a decade, to discourage vexatious claims and lawsuits from chancers hoping to gain a financial settlement on the court steps.

The Government’s dithering approach will not change this reality which is an impediment which adds onerous cost considerations to attempts to investigate and uncover wrongdoing in the public interest. In continuing straitened times for publishers there is a recklessness in dismissing these concerns.

Other proposals represent progress. The obvious nonsense which constrained retailers from challenging people leaving their shops with unreceipted goods for fear of being sued for causing reputational damage is to be junked.

Perhaps this will be some small assistance in combating the depressing spiral of shoplifting to which Ireland, in common with other countries, is increasingly victim.

It is encouraging that measures are to be taken to make it less costly for plaintiffs to obtain the identity of people who post injurious and inaccurate content online.

The question we should be asking ourselves is why we ever permitted technology and social media companies to allow users of their platforms to operate behind cloaks of anonymity in the first instance?

It has permitted an environment which is toxic and pernicious and, in some instances, illegal and malign.

If this continues without radical reform, all the advantages of creating a networked world will be lost through a digital Gresham’s Law where the bad will drive out the good.

That process is already accelerating.

The complexities of online life can be illustrated by the strenuous legal efforts Tánaiste Micheál Martin and his civil servants have had to undertake to identify the source of fake online ads which used his image and name to promote financial products. They appear to have originated in Russia and Belarus using stolen credit cards.

The bill has some chance of moving into law if it can be enacted by Christmas without too many impediments at committee stage.

But if the Dáil is dissolved for an election by the autumn, a season which is elastic in definition, then there is every chance it will fall.

And that will mean no medals at all. Just an end of term report which must aspire to the original Olympics Latin motto: “Citius, Altius, Fortius — Faster, Higher, Stronger.”

Sabotage and arson won’t dampen Olympic spirit 

No Olympics ever opens without controversy. Costs, drugs, pollution, and ticketing have all had their moments in the past.

The Irish team including flagbearer Sarah Lavin on a boat on the Seine during the opening ceremony of the Paris 2024 Olympic Games. Picture: Martin Rickett/PA 
The Irish team including flagbearer Sarah Lavin on a boat on the Seine during the opening ceremony of the Paris 2024 Olympic Games. Picture: Martin Rickett/PA 

We’ve already seen an Olympian debarred from the equestrian events for mistreating a horse four years ago.

Yesterday, a massive attack was launched in an attempt to spoil France’s grand moment through sabotage and arson on the country’s impressive transnational high speed rail network. Saboteurs cut crucial fibre-optic cables alongside the tracks, producing significant delays with the worst affected route running between Paris and Bordeaux.

This didn’t diminish the appetite for the opening ceremony alongside, and on, the River Seine — at which athlete Sarah Lavine and golfer Shane Lowry were chosen as Ireland’s floating flag bearers.

International names participating in the fun included rapper Snoop Dogg, who was one of the torch relay in the first Olympics to include break dancing in its timetable.

Last night’s opening ceremony, in which 10,000 athletes were transported along the Seine in a sporting armada watched by more than 300,000 people was the customary esoteric — sometimes bizarre — blend of cultural references, interpretative dance, music, and symbolism.

Today, the sport begins in earnest. To Ireland’s 133 Olympians, we wish bonne chance.

Delayed opportunity for RTÉ

The Defamation Bill is not the only hot potato the Government has dealt with this week. The other is funding for the nation’s broadcaster. And, on that issue, it has demonstrated a taste for fudge.

The saga of how to pay for RTÉ has dragged on for several years. And it continues to fulfil that old definition of what happens when a horse is designed by a committee.

Under certain circumstances, a camel is the perfect creation for a challenging environment. In others, it is less effective. And, in the current media landscape, the schizophrenia over whether the national broadcaster is a commercial, or non commercial, state entity is unresolved and will continue to haunt the organisation and confuse the public, which is required to support it.

The new funding plan, which largely consists of more, but not enough, of the same, buys a little more time for grown-up questions to be faced and answered by some future government, perhaps even the next administration.

For now, the organisation has to rely on funds from a licence fee which people are increasingly disinclined to pay, either because (they say) they don’t watch any TV; or because they don’t approve of how their money is spent on frivolities and mega-salaries for “the talent”; or simply because they are strapped for cash.

In parallel, the requirement to compete to the max in the commercial advertising market, which has always required a certain amount of greasing the wheel for major clients with hospitality, corporate entertainment, barter accounts and the like, also makes consumers bridle when details emerge.

And, in forcing RTÉ to continue to take money from the public, from private and state businesses, and from the taxpayer, major distortion is introduced into a marketplace which requires choice, variety and consumer trust for the health of society and democracy.

The settlement of €725m over three years is heavily reliant on sustaining inputs from a licence fee which has been frozen since 2008.

These dropped by 13% last year and it takes an optimist to bet that they will recover.

Additionally, funding presumes that the organisation will continue to gather commercial revenues at least at the level it delivered in 2022 when sales strategies caused such ire and bite back among politicians and citizens.

A review chaired by Professor Niamh Brennan of University College Dublin argued that RTÉ’s funding model should be more sustainable and that there should be clarity over whether it should operate on a fully commercial basis.

The Republic requires a robust and confident state broadcaster and that is only likely to come with reliable exchequer funding which can be supplemented with a household charge on screen-based entertainment and a levy on pay TV.

Kevin Bakhurst, RTÉ’s director-general, has been on the interview circuit this week looking pleased at “multi-annual funding for the first time in a generation”.

He knows that his part of the bargain is to deliver radical modernisation.

With momentum clearly increasing towards an election, it is helpful that our politicians do not have to spend further time picking over the entrails of the nation’s broadcaster. But its activities will never be far away from the headlines.

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