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爱尔兰诽谤法评析 Analysis of Ireland's Defamation Laws

时间:2018-04-27 08:42来源:www.ukassignment.org 作者:cinq 点击:
Defamation Media Constitution
Introduction - What is Defamation?
In a society that often prides itself on having a free and unbiased media, it is important to understand the limitations of such a freedom and the effects it has on a person's social rights. Different jurisdictions tend to embrace the concept of defamation in different ways. For example, the United States has the First Amendment in their Constitution, which has become famous through its abundant presence in popular culture that is based around American law. Australia has an implied freedom of political communication, which is not expressly provided for in their Constitution; however case law has seen effect given to such a value which is far more specific than the American Constitution.
The Irish system is quite different from the above. As this brief will uncover, the Irish definition of defamation law is essentially the right of a person to their reputation or their good name. This brief will critically discuss the ways that the Irish courts apply defamation laws, and the relevant constitutional and legislative framework that is in place, which is somewhat unique to the Irish system.
The Irish Constitution
The Constitution is the most supreme law in the land. It limits the government's legislative abilities while also balancing the fundamental rights of its citizens. Different jurisdictions have different values which they seek to protect, often reflecting different cultural ideologies. However, Ireland appears to take much of its guidance from countries such as the United States and Australia, in that it protects the overall freedom of the media.
This 'freedom of expression' is considered fundamental in allowing persons to express their thoughts on government and political issues, which is vital in promoting democratic ideals and enhancing social participation. Obviously, this draws parallels with the famous First Amendment of the United States Constitution which protects an individual's right to free speech, however the Irish Constitution appears to somewhat limit and specialise the protection it offers its citizens.
The Irish Constitution extends its express protection against defamation beyond the media on to the individual. It states:
...the State shall, in particular, by its laws, protect as best it may from unjust attack (and, in the case of injustice done, vindicate) the life, person, good name and property rights of every citizen.
This is the cornerstone of an individual's protection against defamation in the Irish jurisdiction. It expressly and firmly entrenches the notion that a citizen is entitled to a good reputation, and any violation thereof must be justified in the sense that a person has brought on such action themselves.
It places a duty upon the legislature to put in place laws which would serve to protect a person's good name, and the laws of defamation have been specifically acknowledged by the Irish High Court as fundamental in promoting this protection.
The Constitution, while serving to protect persons against any defamation actions, also recognises the need to balance protection of rights with the need for freedom of expression. As previously mentioned, the Constitution serves to protect the rights of individuals against defamation through placing restrictions on the media's rights to express opinions in certain circumstances.
This is elaborated upon expressly in the Constitution, in the sense that it says the media and press retain their right to a freedom of expression, however it is not to use that freedom to undermine public order, morality or the authority of the State. This clearly demonstrates the requirement that the State must balance freedom of expression with protection of one's good name, which has been mentioned throughout this chapter.
In summary, it is quite clear that the Irish Constitution forms a key part of the protection of an individual from defamation. As this brief will uncover, it is these constitutional provisions that form the cornerstone of legislative protections, such as the Defamation Act 1961, and a host of case law on the issue.
Additionally, it would also appear that the Constitution is consistent with European standards, in that it protects one's fundamental right to their good name while finely balancing the need for a free and unbiased media. This can be found in Article 10 of the European Convention on Human Rights, which states:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas, without interference by public authority and regardless of frontiers.
It goes on to say:
[Restrictions will be placed on this freedom] as are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
These standards are consistent with the aforementioned discussion, and clearly demonstrate the need for the balance of rights with democratic ideas and values.
The Defamation Act 1961
It could be said that the most significant law on defamation in Ireland is the Defamation Act 1961. This legislation replaces much of the law that previously existed in terms of defamation, and codifies many of the common law principles of defamation that are preserved in the Irish legal system. This Act is divided into three key parts: Part I is a preliminary section, dealing with much of the definition, application and jurisdictional issues.
Part II addresses the concept of criminal libel, which is an entirely different area of law again from defamation, and Part III (sections 14 to 26) deals with civil defamation. This brief will now attempt to offer a critique of the relevant provisions of the Defamation Act 1961, assessing how it serves to protect one's constitutional right to their good name.
Perhaps one of the most intriguing provisions of this Act is one that prohibits a party from using words which impute unchastity or adultery on the part of a woman or girl. This, in itself, is not such an extraordinary provision; however the same section also provides that an action may be taken by a party offended by such words without any proof of actual damages. Therefore this Act, at least in this regard, tends to err on the side of caution and expressly outlaw any libellous comments in relation to a woman's sexuality ideally without the need to resort to the courts for remedy. As a general rule, Part II of this Act seeks to outlaw certain conduct by parties, particularly the media, in order to prevent libellous statements from being made in the first case.
The Second Schedule of the Act prescribes certain publications as being privileged (i.e. exempt from defamation laws unless malicious intention can be proven). Such publications include reports of decisions taken by international and domestic political organisations, meetings of companies, and other meetings which discuss issues of public concern. Therefore, the Act also recognises the duty of the media to report issues that are of concern to the public, while seeking to balance out that right of knowledge with the public's constitutional right to their good name.
There has been some push for reform of the Defamation Act 1961 in the past few years. Some have cited the European Convention on Human Rights as their primary concern, claiming that the current Irish law lags behind the standards that are set by the European legislation. There is also claim that the proposed legislation needs to take recognition of similar decisions which are handed down by European and UK courts, given the fact that these two jurisdictions have defamation laws which are considered to be the benchmark in libel protection.
The Approach of the Courts
This brief has covered the various constitutional and legislative frameworks that are in place in order to allow the courts to properly discharge their role of applying the law. But often there comes a time when the courts are still required to make decisions where the law is unclear or non-existent, which is the cornerstone of the common law system. Ireland is no different, and there have been plenty of common law decisions handed down over time to provide further guidance as to how defamation law is applied in the Irish jurisdiction.

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