Defamation Defences

Fair and Reasonable Publication on Matter of Public Opinion

The Defamation Act provides a new defence of fair and reasonable publication on a matter of public interest.  The defence reflects developments in the US and later UK law.  The European Convention on Human Rights contemplates a defence based on the right to free speech in these circumstances.

The European Court of Human Rights has upheld the principle of freedom to make a fair and reasonable publication on a matter of public interest. This must be undertaken in accordance with principles of responsible journalism.  A journalist must act in good faith. They must provide accurate and reliable information in accordance with ethical principles.

The defence appears to be a statutory codification of the common law defence, famously elaborated by the House of Lords in a case involving former Taoiseach, Albert Reynolds. The defence may allow publication in the public interest in relation to matters in political discussion.  The defence is not limited to political discussion and extends to matters of serious public concern.

The principles were accepted in the number of Irish case prior to the commencement of the Defamation Act.  It was not clear whether the defence developed by the courts has been codified in the Defamation Act. The principles have not been uniformly adopted by the courts.

This principle is based on the interest of the public in a democracy in free expression on matters of public interest.  There was a corresponding duty on a journalist or another in a similar position to act responsibly. These tests are not rigid.