Keeping the lawyers busy
Denis O’Brien won his defamation case against the Irish Daily Mail’s Paul Drury yesterday because the Mail’s “honest opinion” defence of Drury’s column failed since they could not establish the truth of the facts which formed its basis. The honest opinion defence was introduced into Irish law by Michael McDowell in the Defamation Bill of 2006, which eventually became law in 2009.
Much of the debate about the bill took place in the Seanad. There’s an interesting section of the debate where McDowell said the term “honest defence” was needed because the previous term had been “fair defence,” which invited juries to speculate about the fairness of a harsh opinion rather than its grounding in facts. The Irish Mail might well have preferred the fairness terminology.
Anyway, Senator David Norris was strongly opposed to the honest opinion defence — because he thought it was so broad that it could cover any opinion as long as some appropriate qualifier was added. But the then Minister was adamant –
If one makes a defamatory comment by reference to facts that are not in contest or can be proven to be true, holding it as an honest opinion is a full defence. It is an important part of freedom of speech. For example, if I said that because Senator Norris did A, B and C, he is unsuitable to be a lecturer in Trinity College Dublin or a Member of the Oireachtas and that he is a total disgrace and a dishonest man, my opinions would be based on facts. If people can refer my opinion to facts in respect of which I am in a position to prove or that are accepted as true, my statement is an expression of opinion.
Opinion does not defame. That I have a clearly identifiable opinion of someone does not damage that person because people are entitled to say that it is only an opinion. It is not a slander or a libeller’s charter to distinguish between statements of fact that are false and honest judgments arrived at by people. If we were to trim down this measure, we would make a serious mistake.
Hopefully Mr McDowell is impressed with the first major application of this distinction between fact and judgment in Irish case law.