Liberty of Expression in Ireland and the Need for a Constitutional Law of Defamation

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I. 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. …