People
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rect terminology to use, and that the general public are well informed about the struggles of trans people. It is my sincere hope that we can one day reach an all-inclusive Ireland, free from trans stigmatisation and discrimination.
Australia Balancing the Scales Between Free Speech and the Right to a Good Name Matthew O’Shea JS Law and Business Where should the line be drawn between protecting one’s right to a good name against another’s right to speak freely? The Australian state of New South Wales may have closed in on the answer. The state has recently passed a suite of reforms on its defamation laws, modernising an area of law previously untouched since the early 2000s. Defamation represents the area of civil law historically thought of as slander or libel, involving the utterance or publication of a false or damaging statement by one party about another. In Ireland, slander and libel are considered together under the Defamation Act 2009. Unique to this area of civil law is that trials for defamation may still be witnessed and decided on by a jury – both in Australia and Ireland – whereas the majority position in civil law tends not to include a jury. The inclusion of a jury in defamation cases is one aspect which often makes for unusually high pay-outs of damages in cases of successful judicial actions. This can be seen in the relatively recent Australian case in which actor Geoffrey Rush was awarded a historic A$2.9 million in his case against the Daily Telegraph. New South Wales’ reforms cover three core areas: i) the introduction of a “serious harm test” to weed out minor claims; ii) a “public interest defence,” emulating that of common law, as evidenced in Ireland; and iii) a clear aim to reduce the size of pay-outs made in defamation cases. The first two elements above may not seem alien to the Irish version of the Act, given that there are already similar provisions in place in this jurisdiction to consider the level of harm caused by a defamatory comment, as well as respect given to the public interest of a certain publication allowing for otherwise defamatory comments to be made. The third element above proposes a clarification on the ceiling on the level of damages that may be awarded for non-economic loss in a defamation case, which currently stands at A$421,000. This ceiling is by no means absolute, and as the Sydney Morning Herald reports, there are many cases in which the total damages awarded may indeed exceed it. The proposed reforms lean more towards clarifying how the ceiling works for non-economic loss, i.e., the damage done to one’s reputation as opposed to one’s loss of earnings. These reforms were prompted by New South Wales Attorney General Mark Speakman, who described them as “a generational change in the way Australia’s legal system will protect reputations from serious harm while encouraging responsible free speech.” While there is currently no commencement date set for the reforms, it is reported that the other Australian states would have to introduce similar reforms in order to maximise its effectiveness. Irish defamation law may benefit from taking inspiration from New South Wales’ reforms, particularly regarding the methods proposed for limiting the sizes of defamation pay-outs. This could be particularly noteworthy in light of the 2019 case, Kinsella v Kenmare Resources plc, in which an award of €9 million was initially proposed by the jury, only to be reduced by the Court to €250,000.
