Nothing To Say Here



Further to our irksome legal skirmish with solicitors acting for the extremely handsome businessman Denis O’Brien (top) on Friday and RTE’s apology after comments made by Miss Panti (above) on The Saturday Night Show.

We asked Legal Coffee Drinker, what’s it all about?

Broadsheet: “Legal Coffee Drinker, what’s it all about?”

LCD: “The Defamation Act 2009. It defines defamation as the publication, by any means, to one or more than one person, of a statement that tends to injure a person’s reputation in the eyes of reasonable members of society.”

Broadsheet: “Taken to its logical conclusion, you can’t say anything bad about anyone, right?

LCD: “Yes. That’s why there are also a number of defences available for the defendant in a defamation case. The first, naturally enough, is truth. If the defendant can prove that the ‘sting’ of their assertions is true, that is a complete defence to a defamation action.”

Broadsheet: “So once you stand over your facts?

LCD: “The facts may be correct, but the conclusion drawn from facts may not be, or may be a matter of opinion not susceptible to proof. That’s why there are two more defences which might be worth mentioning. The first is honest opinion and the second is fair and reasonable publication on a matter of public interest.
The defence of honest opinion has already been raised by some commenters on your site as something which might be relied on by Rory O’Neill (Miss Panti) in any libel action which might be brought against him by John Waters/Iona in respect of certain comments made by him on the Brendan O’Connor show. It applies to honestly held statements of opinion on matters of public interest based on provably true allegations of fact generally known or specified or referred to in the statement containing the opinion.
The defence of fair and reasonable publication on matters of public interest applies to factual statements and conclusions of fact rather than opinion. It has to be shown that the statement/conclusion was made/reached in good faith, and in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit, and, in all the circumstances of the case, it was fair and reasonable to publish the statement.

Broadsheet: “Are these new defences?

LCD: “Well, the defence of honest opinion (previously known as ‘fair comment’) has been round in more or less the same form for a long time. But the defence of fair and reasonable publication on matters of public interest is a new – and very interesting – one [refills coffee].
It was introduced because of concerns that defamation law, as it stood, might be used as a tool to unfairly restrict freedom of expression which, as you possibly know, is a human right protected by the Constitution and also by the European Convention on Human Rights. It’s one of the oldest human rights and absolutely integral to democracy because free exchange of information and discussion is necessary to enable citizens to make proper, informed judgments about how to exercise their democratic rights – the Universal Declaration of Human Rights describes it as ‘the highest aspiration of the common people’.


LCD: {interrupting] “Obviously there can’t be complete and untrammelled freedom of expression because the right to a good name is also a right protected by the Constitution and human rights law generally and a balance has to be struck between the two. However it was felt by the drafters of the 2009 Act that discussion should be freer in circumstances where the subject matter is one of public interest and hence the two defences above.
Obviously the fact that the subject of discussion is one of public interest shouldn’t be a licence to deliberately or negligently misstate either – a defence of fair and reasonable publication on matters of public interest, for instance, exists to prevent freedom of expression being abused and shouldn’t be abused itself.”

Broadsheet: “Can you answer one final thing. Why do legal letters always seem to arrive on a Friday afternoon?

LCD: “To crush your spirit, fracture relations with friends and colleagues and ruin your weekend. Are we done?”

Broadsheet: “We are. Thank you very much Legal Coffee Drinker. We always appreciate your wise counsel.”

Legal Coffee Drinker: “Right bye.”

Previously: That Friday Feeling

(Sam Boal/Photocall Ireland, Miss Panti)

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