Right to demonstrate

jgorres

Hi,

What rules/regulations/laws apply to the right to demonstrate in ROI?

Is there something like a "one-man-privilege" some jurisdictions know, i.e. a single person may walk and demonstrate on public ground with a sandwich board or similar without the need to notify or get permission by the authorities?

Your hints would be welcomed.

Jörn.

NUTLEY BOY

jgorres wrote: »

Hi,

What rules/regulations/laws apply to the right to demonstrate in ROI?

Is there something like a "one-man-privilege" some jurisdictions know, i.e. a single person may walk and demonstrate on public ground with a sandwich board or similar without the need to notify or get permission by the authorities?

Your hints would be welcomed.

Jörn.

You have constitutional rights to freedom of assembly and freedom of expression.

The exercise of these two rights simultaneously is often characterised as the so-called ""right of protest".

However, these rights are not absolute. Your behaviour in any particular instance will be balanced against other peoples' competing rights and other matters such as public order, incitement and the like.

jgorres

Hi,

Thanks for a first idea of the situation.

In real life the "balancing" would be done by the authorities, namely Garda, right?

NUTLEY BOY

jgorres wrote: »

Hi,

Thanks for a first idea of the situation.

In real life the "balancing" would be done by the authorities, namely Garda, right?

That depends on the specific facts.

Initially, it might be the Gardai. Ultimately, it could be a judge (civil or criminal - again dependent on the facts of the matter).

Victor

jgorres wrote: »

In real life the "balancing" would be done by the authorities, namely Garda, right?

Generally, yes, but subject to appeal to the courts. Councils have tried to put some controls on public gatherings, primarily aimed at commercial events, but also non-commercial events that create similar risks - public order, property damage, traffic disruption, etc.

Note that there are some additional constitutional restrictions on assembly in the vicinity of the Oireachtas. While primarily an anti-coup measure, it can be invoked if violence or excess disruption is expected.

There are some competing constitutional rights, e.g. you can't walk around with a sandwich board claiming an innocent person is a criminal, without that person suing you for defamation (merited or not).

Also, freedom of speech might be more limited for a business, so a council might be able to put bye-laws in place restricting advertising. Some specific advertising is prohibited, e.g. tobacco.

jgorres

NUTLEY BOY wrote: »

Initially, it might be the Gardai. Ultimately, it could be a judge (civil or criminal - again dependent on the facts of the matter).

Thanks for your information; no risk, no fun ;-)

jgorres

Hi Victor,

Victor wrote: »

There are some competing constitutional rights, e.g. you can't walk around with a sandwich board claiming an innocent person is a criminal, without that person suing you for defamation (merited or not).

EDIT 16.09.14, 07:06 : Corrected missing "Q" in

Thanks for the very detailed information, especially towards the "sandwich board" approach.

As I am not a native speaker of English, what does the phrase "merited or not" means?

Jörn.

Victor

jgorres wrote: »

what does the phrase "merited or not" means?

Anybody can sue anybody for anything. Doing so successfully will depend on the merits of the case.

If you accuse me of being a criminal, but I'm not, then I have a good case against you, once I can prove it.

However, if I was a criminal, then your accusation would be true and while I could sue you, it would be unlikely to get far.

jgorres

Thanks for clarification.

It is pity that even if you can proof that somebody is an asshole (as a matter of fact) he can sue you ;-)

Jörn.

FreudianSlippers

Victor wrote: »

Anybody can sue anybody for anything. Doing so successfully will depend on the merits of the case.

If you accuse me of being a criminal, but I'm not, then I have a good case against you, once I can prove it.

However, if I was a criminal, then your accusation would be true and while I could sue you, it would be unlikely to get far.

That is one of the interesting things about Irish Defamation law, your reputation is presumed damaged and it is for the defendant to show that they have a defence. If that defence is truth, the onus is on the defendant to prove to the court that the statement was true

Paz-CCFC

FreudianSlippers wrote: »

That is one of the interesting things about Irish Defamation law, your reputation is presumed damaged and it is for the defendant to show that they have a defence. If that defence is truth, the onus is on the defendant to prove to the court that the statement was true

Whilst it is technically a reversal of burden of proof, I wouldn't necessarily see it as such. All you're really doing is asking the person who made the statement to back it up. Whereas, the normal burden of proof would be to disprove a statement, which is harder to do (prove God is real v prove God isn't real). Eg, any journalist worth his salt should be able to back up an assertion made, so it should usually be self-evident from the article whether it was defamatory or not. If it were a reasonable article, it would shift the burden back to the plaintiff.

I'd equate it to res ipsa loquitur. Hanrahan v. Mercke Sharpe v. Dohme (1988, SC): "It would be palpably unfair to require a plaintiff to prove something which is beyond his reach and which is peculiarly within the range of the defendant’s capacity of proof." (Henchy J).

28064212

FreudianSlippers wrote: »

That is one of the interesting things about Irish Defamation law, your reputation is presumed damaged and it is for the defendant to show that they have a defence. If that defence is truth, the onus is on the defendant to prove to the court that the statement was true

Yeah, it's often said that "the truth is the ultimate defence" in regard to defamation cases. It's not. Being able to prove what you said is true is a valid defence

coylemj

28064212 wrote: »

Yeah, it's often said that "the truth is the ultimate defence" in regard to defamation cases. It's not. Being able to prove what you said is true is a valid defence

Aren't those statements contradictory?

1. The truth is the ultimate defence, it is not
2. being able to prove what you said is true is a valid defence

Is there a distinction that I (not a lawyer) am missing between 'ultimate defence' and 'valid defence'?

My reading of the Defamation Act 2009 says that truth is the ultimate defence i.e. once you can show that your statement is true ('in all material respects') then that's the end of it thereby making it the ultimate defence.

16.— (1) It shall be a defence (to be known and in this Act referred to as the “ defence of truth ”) to a defamation action for the defendant to prove that the statement in respect of which the action was brought is true in all material respects.

http://www.irishstatutebook.ie/2009/en/act/pub/0031/sec0016.html#sec16

jgorres

Hi,

coylemj wrote: »

My reading of the Defamation Act 2009 says that truth is the ultimate defence i.e. once you can show that your statement is true ('in all material respects') then that's the end of it thereby making it the ultimate defence.

16.— (1) It shall be a defence (to be known and in this Act referred to as the “ defence of truth ”) to a defamation action for the defendant to prove that the statement in respect of which the action was brought is true in all material respects.

Yes, you are right.

Nevertheless, in court you will get a verdict, not justice.

And a special thank for the link.

Jörn.

No Username Yet

saw protesters outside a circus last weekend on a main road in front of the circus
they were a danger to themselves and all other road users, it was actually scary

No problem with demonstrating as long as safe and not being a or danger to
those who have absolutely nothing to do with the cause in this case families and children

jgorres

Hi,

No Username Yet wrote: »

saw protesters outside a circus last weekend on a main road in front of the circus
they were a danger to themselves and all other road users, it was actually scary

No problem with demonstrating as long as safe and not being a or danger to
those who have absolutely nothing to do with the cause in this case families and children

Maybe, the protesters' point of view was that the danger they were causing to themselves and other (third parties) was not as important as the matter they were protesting for/against.

Maybe, they even took that danger deliberately into account to provoke attention (like Greenpeace does with their publicly promoted campaigns).

Jörn.

No Username Yet

jgorres wrote: »

Hi,



Maybe, the protesters' point of view was that the danger they were causing to themselves and other (third parties) was not as important as the matter they were protesting for/against.

Maybe, they even took that danger deliberately into account to provoke attention (like Greenpeace does with their publicly promoted campaigns).

Jörn.

Actually don't care what the cause was (animal rights I think) no child should be put at risk because loonies are blocking a dangerous stretch of main road

28064212

coylemj wrote: »

Aren't those statements contradictory?

1. The truth is the ultimate defence, it is not
2. being able to prove what you said is true is a valid defence

No. Say you're in a room alone with someone. They strip naked, wrap tinfoil around their head, and start singing the praises of Satan. Later on, you start telling people what happened. They file a defamation suit. It doesn't matter what actually happened (i.e. the truth), what matters is what you can prove to be true, and in a case with no witnesses and no physical evidence, it's unlikely you're going to be able to do that

FreudianSlippers

Paz-CCFC wrote: »

Whilst it is technically a reversal of burden of proof, I wouldn't necessarily see it as such. All you're really doing is asking the person who made the statement to back it up. Whereas, the normal burden of proof would be to disprove a statement, which is harder to do (prove God is real v prove God isn't real). Eg, any journalist worth his salt should be able to back up an assertion made, so it should usually be self-evident from the article whether it was defamatory or not. If it were a reasonable article, it would shift the burden back to the plaintiff.

I'd equate it to res ipsa loquitur. Hanrahan v. Mercke Sharpe v. Dohme (1988, SC): "It would be palpably unfair to require a plaintiff to prove something which is beyond his reach and which is peculiarly within the range of the defendant’s capacity of proof." (Henchy J).

I'm not really sure I understand where we disagree? I was replying to another poster who said that the plaintiff would have the onus of proof, by saying that Ireland is an interesting jurisdiction as the falsity of the statement and damage is presumed. Whereas in the vast majority of common-law countries, whilst defamation is actionable per se, damage is not presumed and must be proven by the plaintiff (with a few exceptions in English law).

You also seem to be confusing reasonableness of the article with the defence of truth. Fair and reasonable publication on a matter of public interest is a different defence under section 26. Whilst it is very easy to say that any journalist worth their salt would be able to back up their story, in practice it isn't always that clean - which is the precise reason that s26 defence exists.

From practise on both sides of the fence as a media lawyer who deals with a lot of defamation cases, I think the burden can be somewhat unfair on defendants (in certain circumstances). Because of the presumption, it allows certain plaintiffs to bring cases in order to shut weaker defendants up. I wouldn't suggest going as far as US SLAPP laws, but I understand why they have them.

FreudianSlippers

28064212 wrote: »

No. Say you're in a room alone with someone. They strip naked, wrap tinfoil around their head, and start singing the praises of Satan. Later on, you start telling people what happened. They file a defamation suit. It doesn't matter what actually happened (i.e. the truth), what matters is what you can prove to be true, and in a case with no witnesses and no physical evidence, it's unlikely you're going to be able to do that

So your criticism is of the law the law works? There are plenty of cases where there isn't a smoking gun - it is a matter for evidence and for the judge/jury to decide who they believe.

Your statement is still flawed: being able to prove truth is an absolute defence; however I will accept that telling the truth is only a valid defence if it cannot be proven (but such is life in court).

28064212

FreudianSlippers wrote: »

So your criticism is of the law the law works? There are plenty of cases where there isn't a smoking gun - it is a matter for evidence and for the judge/jury to decide who they believe.

It wasn't a criticism of the law, it was a criticism of people who think the truth on its own is enough, regardless of what they're able to prove.

FreudianSlippers wrote: »

Your statement is still flawed: being able to prove truth is an absolute defence.

I haven't said otherwise. My entire point is that people have a tendency to confuse "what is true" with "what they are able to prove is true". The onus is on the "defamer" to prove their statement is true, regardless of the absolute truth

FreudianSlippers

My point is that is the crux of the legal system, not just defamation. It is fundamental that you are able to prove your case. Nobody is truly arguing that simply telling the truth will get you off?!

coylemj

Bunreacht na hEireann

Personal Rights

Article 40

6. 1° The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. The right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

ii. The right of the citizens to assemble peaceably and without arms.

Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas.

iii. The right of the citizens to form associations and unions.

Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.

Paz-CCFC

FreudianSlippers wrote: »

I'm not really sure I understand where we disagree? I was replying to another poster who said that the plaintiff would have the onus of proof, by saying that Ireland is an interesting jurisdiction as the falsity of the statement and damage is presumed. Whereas in the vast majority of common-law countries, whilst defamation is actionable per se, damage is not presumed and must be proven by the plaintiff (with a few exceptions in English law).

You also seem to be confusing reasonableness of the article with the defence of truth. Fair and reasonable publication on a matter of public interest is a different defence under section 26. Whilst it is very easy to say that any journalist worth their salt would be able to back up their story, in practice it isn't always that clean - which is the precise reason that s26 defence exists.

From practise on both sides of the fence as a media lawyer who deals with a lot of defamation cases, I think the burden can be somewhat unfair on defendants (in certain circumstances). Because of the presumption, it allows certain plaintiffs to bring cases in order to shut weaker defendants up. I wouldn't suggest going as far as US SLAPP laws, but I understand why they have them.

I wasn't disagreeing with you, merely adding in my opinion as to why the burden is reversed.

Nope, I know the differences between the two defences, but I can see how you got that to my example. I was talking along the lines of - say, the article starts off with "Mr A committed murder"; any defence would inherently lie in the article, where the trial is referred to etc. to back it up. I was perhaps oversimplifying it, referring to more factually based articles.

Do you find that the reversal of burden works generally positively in practice or do you think that it should be up to the plaintiff to prove?

Esel

FreudianSlippers wrote: »

Your statement is still flawed: being able to prove truth is an absolute defence; however I will accept that telling the truth is only a valid defence if it cannot be proven (but such is life in court).

Did you mean 'can be proven'?

FreudianSlippers

Paz-CCFC wrote: »

Do you find that the reversal of burden works generally positively in practice or do you think that it should be up to the plaintiff to prove?

It's an extraordinarily hard question to answer, because I agree that the burden to prove the truth of the statement should be on the defendant (and they do have the opportunity to rely on, inter alia, honest opinion if they really cannot prove truth).

I think that perhaps the easiest way of putting it (which is going to be overstating it a bit, perhaps, but just broadly speaking) is that the burden should be on the plaintiff to show actual damage where that plaintiff is a body corporate in order to even bring a case for defamation. That would sort out a lot of problems regarding unfairness.

Esel wrote: »

Did you mean 'can be proven'?

No, it's a bit of a pedantic argument by Paz (;)) which is why I was putting up a bit of a challenge earlier. Truth is only an absolute defence if it can be proven. Where you don't have a smoking gun, it is only a defence - you give your evidence, the other side gives theirs, and it is for the court to decide who they believe.

Pro Hoc Vice

28064212 wrote: »

No. Say you're in a room alone with someone. They strip naked, wrap tinfoil around their head, and start singing the praises of Satan. Later on, you start telling people what happened. They file a defamation suit. It doesn't matter what actually happened (i.e. the truth), what matters is what you can prove to be true, and in a case with no witnesses and no physical evidence, it's unlikely you're going to be able to do that

Every day in every court people prove things with out video evidence or any physical evidence they do it by giving verbal evidence on oath. Yes its correct that the judge and or jury may not believe the evidence or they may but they will do what all people do weigh up what they are told and decide on what they believe that is then the truth.

hullaballoo

Is it not more appropriate, if we're being pedantic, to call it a reversal of the evidential burden rather than the burden of proof?

Peregrinus

hullaballoo wrote: »

Is it not more appropriate, if we're being pedantic, to call it a reversal of the evidential burden rather than the burden of proof?

It's not a reversal of the evidential burden. It's generally the case in civil proceedings that what you plead, you prove. If you are sued for defamation and in your defence you plea, e.g., qualified privilege, then it's up to you to adduce the evidence necessary to establish the facts which give rise to the privilege. Similarly, if you plead justification, then it's up to you to adduce evidence to establish the facts that give rise to the defence of justification - one of which is that the defamatory statement is true.