publishing court cases contemporaneously

pk82

As an aside from a related, now locked, thread about publishing court cases.

If they are published, MUST such cases/reports be published contemporaneously?

Tom Young

Usually, yes. Particularly if the case report is a local one, e.g., District Court.

In more meaty cases the answer is no.

coylemj

The defence of truth contains no qualifier about the relationship between when an event happened and when it is reported.

And in relation to a court case, the defendant (say, a newspaper) would be able to claim the defence of truth (S.16) and the defence of absolute privilege ....

17.— (1) It shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought would, if it had been made immediately before the commencement of this section, have been considered under the law in force immediately before such commencement as having been made on an occasion of absolute privilege.


(2) Subject to section 11(2) of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 , and without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was—


...

(e) contained in a judgment of a court established by law in the State,


(f) made by a judge, or other person, performing a judicial function,


(g) made by a party, witness, legal representative or juror in the course of proceedings presided over by a judge, or other person, performing a judicial function,

which would cover evidence given in a court case


.....

(i) a fair and accurate report of proceedings publicly heard before, or decision made public by, any court—

(i) established by law in the State, or
(ii) established under the law of Northern Ireland,

I would see the S.26 defence of fair and reasonable publication being qualified to such an extent that it might not stand based on the length of time between the incident and when it is reported but the S.17 defence of absolute privilege which could be relied upon in the case of a court report doesn't contain any such qualifier.

For example, if an unproven allegation was made against a person and a newspaper dragged up that fact and reported it two years later, they could probably not pass the S.26 test which says that ...

(a) the statement in respect of which the action was brought was published—

(i) in good faith, and

(ii) 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,

(b) in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and
(c) in all of the circumstances of the case, it was fair and reasonable to publish the statement.

Tom Young

What does that reply do for the OP?

Carawaystick

In respect of section (f)
in the case where there was a wildcard Judge like say Denning, or that lad who fell asleep in the Nicky Kelly trial

would this section (f) hold up to the constitutional right to a good name?


If a reasonable person would know the judge was a loolaa, should there not be some remedy?

Has this been decided in court already? has "as far as is practical" been decided?

coylemj

Tom Young wrote: »

What does that reply do for the OP?

It says that the answer to his question...

pk82 wrote: »

As an aside from a related, now locked, thread about publishing court cases.

If they are published, MUST such cases/reports be published contemporaneously?

... is 'no'.

In publishing details of a court case, a newspaper or other media outlet can rely on the defence of absolute privilege which does not require the publisher to show that it was fair comment and/or in the public interest to publish what he did and when he did.

Tom Young

You're discussing the Defamation Act defences. Define contemporaneously?

coylemj

Tom Young wrote: »

You're discussing the Defamation Act defences. Define contemporaneously?

In the context in which the OP is using the word, I understand that he's asking whether a report of a court case can only be made soon after (contemporaneously with) when the verdict was handed down by the court. The import of his question being that whatever privilege might be claimed in a suit for defamation would be weakened by the amount of time that had elapsed between the two events.

Tom Young

That's not what this OP asked, it might have been the query in the other, now locked thread

Victor

pk82 wrote: »

As an aside from a related, now locked, thread about publishing court cases.

If they are published, MUST such cases/reports be published contemporaneously?

There is no obligation ("must") to publish.

Publishing long after the fact could stretch from off-colour to legally difficult, e.g. if I had a big headline that Joe Bloggs, hazardous goods driver, was convicted of speeding and only at the bottom of the article mentioned that this conviction was in 1975, it would not be unreasonable for him to claim that he was defamed. A reasonable person, seeing the headline might thing he was convicted recently and/or again. Convincing judge and jury in a defamation case may be another matter.

Mentioning that Charles Haughey (when he was still alive) was involved in the Arms Trial wouldn't be such a problem as it was a matter of notoriety.

ResearchWill

Section 17 is Absolute Privilege, the important word is absolute, its that privilege that allows a TD to say what he wants in the Dail chamber, even years after an event. On the other Hand Section 18 is Qulified Privilege, which in section 19 "Loss of defence of qualified privilege" as you will see can be lost "the plaintiff proves that the defendant acted with malice."

So I believe if a Defendant has a defence of Section 17, then that defence stands end of while section 18 defence can be defeted.

coylemj

Victor wrote: »

There is no obligation ("must") to publish.

I think what the op is asking is that if the details are published, must they be published in more or less the same time frame i.e. not a good deal later.

It's not clear what rule set he is referring to. I've addressed it from the perspective of a suit for defamation and my interpretation is that because it's a report of a court case, the newspaper, website, radio/TV station can rely on the S.17 defence of absolute privilege.

He may or may not be referring to a recently closed thread in which a different OP complained that a report of an old court case (where he paid money into the poor box and got the probation act) was still up on a local news website a long time after the event. He was concerned that a search of his name by a prospective employer would throw up that report which he felt was unfair.

I guess it begs the question: 'should the rule book be rewritten for the digital age?' In previous times the incident would be forgotten but with online archives it's not so easy to forget about the past and leave it behind.

Tom Young

The fade effect is an interesting point.