Satire in Irish law, and comparisons with other jurisdictions

The Irish constitution guarantees both the right to a good name^[2] and the right to free speech,^[3] rights which come into conflict with one another in satire. However, in defamation cases the Irish courts are currently reluctant to rely on these constitutional protections, feeling that rights are adequately protected by existing tort laws.^[4]

This piece will discuss the current treatment of satire in Irish law, and will contrast it to the jurisprudence in the United States in order to highlight the effect that distinguishing defamation and satire in law can have.

A ‘defamatory statement’ is defined as ‘a statement that tends to injure a person’s reputation in the eyes of reasonable members of society’.^[5]  In other words, one must merely issue a statement that injures a 3^rd party’s reputation in the eyes of the community in order to be potentially liable for defamation.  The intent of the tortfeasor (be it satirical or otherwise) is irrelevant.^[6]  Additionally, everyone, even the most repulsive members of society, are assumed to have a reputation that can be damaged.^[7]

Satire is defined as ‘the use of irony, sarcasm, ridicule, or the like, in exposing, denouncing or deriding vice, folly, etc.’^[8] In the US, satire is famously a defence for many actions of defamation, the case is not the same in Ireland. In 1991, the Law Reform Commission published a report^[9], concerning reformation of defamation law. The report briefly commented on satire and stated:

‘We recommend that, in cases involving allegedly defamatory matter contained in a fictional context, the ordinary requirement of identification should be supplemented by a requirement that the matter be reasonably understood as referring to actual qualities or events involving the plaintiff.’^[10]

The Commission further noted that there should not be a distinction between a satirical comment and any other defamatory comment ‘solely on the basis that its object is to subject the target to derision or ridicule rather than hatred or contempt’.^[11]   The commission concludes by stating ‘We accordingly recommend that there should be no special provision in relation to such material.’^[12] 

Such a distinction would have potentially influenced the dispute that the online satirical news outlet, Waterford Whispers entered in 2015. The website wrote a piece set in a parallel universe in which the D.P.P prosecutes Dennis O’Brien for bribing politicians. The website subsequently received a cease and desist order from O’Brien’s solicitors. The piece was then reposted by Broadsheet.ie.^[13]This situation received a wave of negative publication for Mr. O’Brien, who subsequently did not pursue the Broadsheet in court, however the legal situation of satire has not changed.

A positive change for satire law may come from the precedent set by other jurisdictions, particularly the United States. The courts in the United States draw a distinction between satire and defamation. One author has described the difference as ‘defamation is a malicious lie passed off as truth; satire is a humorous skewering of a cultural or political event.’^[14]

Consider the case Hustler Magazine v Falwell^[15] , which dealt with whether a satirical article by the pornographic magazine, Hustler, was protected by the first amendment right to free speech. The article insinuated that Jerry Falwell, a televangelist, was a drunkard who had sexual relations with his mother in an outhouse.  Falwell successfully argued in the Court of First Instance and the Court of Appeal that he had been inflicted ‘emotional distress’ by the publications.^[16]

Hustler magazine appealed the finding to the United States Supreme court, which unanimously found for the appellant.  Rehnquist C.J., while acknowledging that the case dealt with emotional distress rather than strict libel recognised that the issue was irrevocably tied with free speech when he stated that the case involved the “novel question involving First Amendment limitations upon a State's authority to protect its citizens from the intentional infliction of emotional distress.”^[17]

Falwell argued that the ‘outrageousness’ of the statement meant it was not covered under the first amendment^[18] , however Rehnquist CJ rejected this argument, believing public figures should be subject to scrutiny whether satirical (and therefore potentially emotionally distressing) or not. Rehnquist CJ succinctly argued ‘For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas."^[19]

The Hustler case followed a liberalisation of libel laws in the United states following the inauguration of Ronald Reagan in 1981.^[20] In an article on defamation, Amspacher and Springer wrote how this liberalisation had the unintended consequence of allowing radio personalities to harass people without a legal remedy being available. ^[21]  plaintiff can escape a case in defamation by arguing that the defamatory statement was merely ‘humour’ and are thus protected by free speech.^[22]

The authors draw a key distinction ‘opinion’ and ‘fantasy’, which both the U.S. court and Irish court would benefit from acting on, while protecting free speech of opinions, necessary for political satire  also noting ‘Humorists (sic) can, however, easily entertain their audiences without conveying any intelligible "opinion" in the course of their remarks’.^[23] The authors raise the argument that a defamation act  should be restricted to cases where ‘after applying an objective test… no meaningful opinion that the speaker communicated (could be found)’.^[24]

In conclusion it is submitted that there should to be a distinction drawn in law between   satire and defamation. However, there ought to be a more moderate approach than that taken in the United States, wherein free speech has taken prevalence over the right of individuals to a good name and instead insisted on an approach where courts distinguish a person’s ‘opinion’ (protected under free speech) from ‘fantasy’ designed to defame an individual.

^[2]Article 40.3.2°.

^[3] Article 40.6. 1° i.

^[4] Bryan McMahon and William Binchy, The law of Torts (4th edn, Butterworths 2013) Para 34.05.

^[5] Defamation act 2009 s 2.

^[6] McMahon and Binchy (n4) Para 34.18, para 34.50.

^[7]  Ibid Para 34.90.

^[8] http://www.dictionary.com/browse/satire.

^[9] Law Reform Commission, Report on The Civil Law of Defamation (LRC CP 8— 1991).

^[10] Ibid para 7.51.

^[11] Ibid para 7.54.

^[12] Ibid.

^[13] Admin, ‘Meanwhile, In A Parallel Universe’ (August 6^th, 2015) http://www.broadsheet.ie/2015/08/06/meanwhile-in-a-parallel-universe-2/ accessed 17/12/2017

^[14] http://kellywarnerlaw.com/satire-v-defamation/. accessed 18/12/2017

^[15] Hustler Magazine, Inc. v. Falwell, 485 US 46 (1988).

^[16] Ibid 46.

^[17] Ibid 50.

^[18] Ibid 52-53.

^[19] Ibid 56.

^[20] Catherine L. Amspacher and Randel Steven Springer, ‘Humor, Defamation and Intentional Infliction of Emotional Distress: The Potential Predicament for Private Figure Plaintiffs’ (1990) 31 WMLR 701.

^[21] Ibid 701-702.

^[22] Ibid 734.

^[23] Ibid 730.

^[24] Ibid 731.