By Majella Votta
“What is freedom of expression? Without the freedom to offend, it ceases to exist.”
This quote, from acclaimed writer Salman Rushdie, epitomises the delicate nature of defamation. Defamation, simply put, is a statement that damages the reputation of a person.When we look at defamation from a legal perspective, a link between the right to free speech and the corresponding right to a good name emerges. It is historically linked with traditional forms of published media such as newspapers, radio etc. However, as the Courts have noted, there is an increasing number of defamation cases being brought forward to the superior courts in Ireland, and social media may be the cause. Central to this claim, is recognising the way in which the nature of defamation has developed alongside the growth of social media. Online platforms give their users seemingly uncontrolled freedom where comments can and do, go unchecked. On the other side of that, platforms such as Twitter and Instagram have been the epicentre of important social movements such as Me Too, and I Believe Her. Thus, there exists an important conversation to be had - is the bravery of victims speaking out about their abusers being impaired by Irish defamation law?
The current law regarding defamation is the Defamation Act 2009, which reformed the 1961 Act. This Act modernised defamation by abolishing the distinction between libel (written defamation) and slander (spoken defamation)- now everything falls under the broad umbrella of defamation. As it currently stands, defamation is a tort/civil wrong (a wrongful act done to somebody that can lead to legal liability) which involves the publication of a “defamatory statement” ie. a statement made in order to damage one’s reputation in the eyes of “reasonable members of society.”
Let’s break this down - A is alleging that they have suffered some sort of abuse at the hands of B. A decides to tweet about their experience. B reads these tweets and is enraged. They do not want this information out in public for anyone to read, B is afraid they will lose their friends/job. B is legally entitled to sue A for defamation. B’s case can be brought and if the court deems A’s tweets defamatory enough, will order A to pay damages to B, for damaging B’s reputation. A is essentially being penalised for speaking out against B, because it makes B’s life more difficult. You may wonder, why doesn’t A report B for the abuse they inflicted? As we will see, the reality of our legal system means victims of abuse often do not reap any benefits from the structures in place.
The current law does not require the allegedly defamed person to prove they have suffered a loss, be it financial or otherwise - this requirement is an easy one to meet. Furthermore, a publication such as a tweet does not have to expressly name a person in order for it to be considered defamatory; as long as the tweet implies a connection to you, that is enough to be deemed a defamatory tort. Ireland, when compared to our European counterparts, is unusually generous in awarding damages for defamation - some cases awarding in the millions.
It is quite clear from our legislation that outing an abuser via social media is not necessarily the safest way to do so, but a similarly upsetting reality exists when it comes to reporting an offence to the Gardai and taking a legal route. Statistics from Sexual Violence Centres in Ireland estimate that only 12% of rapes are reported. There exists just a 2% conviction rate for rape in Ireland. In 2017 only 1.7% of reported rapes were prosecuted in England and Wales.
Recently, a Go Fund Me page was set up and shared via social media for a rape victim, a disabled mother of one, who is being sued by her rapist and facing a civil legal suit for bravely discussing her experience. This is a dangerous reality facing victims who share their stories.
This leads us to the bigger discussion of the way in which the Irish criminal justice system treats victims, in any capacity. A 2019 Department of Justice and Equality review of victims’ interactions with the criminal justice system found that in the past, lack of resources and poor information provision have deterred effective support. Also, limited knowledge of the legal procedures, concerns about the justice system and psychological trauma can lead to under-reporting or a withdrawal of a complaint.
It is concerning that evidently, our system is not one in which victims can find effective relief. Official routes of resolution that are inherently anti-victim in nature are not fit to serve the best interests of parties that rely on them. Laws that, at times, disproportionately benefit the accused have developed archaic social norms that quite frankly, should not have a place in our society.
Resources/ Bibliography
https://www.irishtimes.com/opinion/libel-ireland-series-why-we-must-reform-defamation-laws-1.2976749
Photo source : AllTop.com
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