‘Women’s counsel brought us first to woe,

 And made Adam from paradise to go.’[1]

The historian D.G Neal characterised medieval England as a ‘society of complex social stratification… of considerable economic insecurity; of cultural transformation; [and] of great inequality of wealth’.[2] Indeed, with this context in mind, it is perhaps unsurprising that a culture of defamation and litigation emerges as reputation becomes increasingly paramount to one’s social and mercantile prospects. The medieval population, whether noble or lay, embarked upon their day in an intrinsically obtrusive world, where distinctions were made based on their behaviour and gender. The medieval understanding of reputation and identity, which are deeply enmeshed, is inherently gendered. Female identity in anchored in the domestic realm, marriage and procreation.[3] Male identity is harder to define, though it is innately intertwined with notions of honour, masculinity and their ability to provide and climb the social hierarchy.[4] Therefore, avenues of defamation, and the disintegration of reputation, are correspondingly gendered.

 

Canon law rationalised defamation as a recurrent attempt to sully another’s reputation.[5] Hence, efforts to cease such behaviour were generally brought to the medieval court, where the defamation was treated as a ‘speech offense’.[6] Sandy Bardsley, in her Venomous Tongues: Speech and Gender in Late Medieval England, alleges that the genesis of medieval defamation discourse lies in the pedagogy of the Church.[7] In order to appropriately penalise their parishioners for their individual sins, it was subsequently necessary for community priests to understand the hierarchy of sins. The theological ideologies of the era produced various codex’s outlining these hierarchies, which included the ‘sins of the tongue’ motif.[8] These ideologies, best exemplified in the work of Guillaume Peyraut’s Summa De Vitiis, persisted across the Middle Ages, and infiltrated the secular realm and concurrently, civic discourse.[9] Thus, as this ideology pervaded the medieval zeitgeist, instances relating to defamatory speech become more numerous. Notwithstanding, there exists an apparent gender divide in the types, and manner of slander recorded. Hence, avenues of defamation innately reflect the gender roles which regulated medieval society. Men, whose integrity and honour decides their role in the collective hierarchy, faced allegations relating to falseness and deficiency of masculine attributes. Women, whose chastity governs their societal reputations, are most often associated with sexual slander. Returning to D. G Neal’s assertion, the medieval world which emerges from these cases presents a deeply insecure and discriminative society, which seeks to enclose its people within strict, easily characterised and definite boxes. Nevertheless, in its attempts to regulate its people’s behaviour, it strives for social cohesion – though it admittedly often misses the mark.

 

I. Malevolent Men

The foremost examples of how masculinity and reputation go hand in hand in medieval society, most often concern the elites within the social structure. The medieval English aristocracy were polemic in their attempts to conserve familial reputations, and the legislative process was the best course of action to safeguard their legacy.[10] Honour was a fundamental element of reputation, and hence, honesty and veracity was paramount to maintaining social relationships. In the instances that these attributes are questioned, particularly with concern to male members of the nobility, legal recourse is not only accepted, but encouraged. 1275 saw the introduction of a number of statutes aimed at preventing defamation against the crown and securing royal impunity. The Statute of Westminster specifically objected to ‘devisors of tales’, who sought to cultivate enmity between the crown and its subjects, stating that none may ‘tell or publicise any false news or tales, from which discord or occasion of discord or slander may grow between the King and his people or the great men of the realm, and… he that tells such tales shall be taken and kept in prison until he had brought into the court the first author of the tale’.[11] The next century saw significant development in this area of legislation, as the 1378 Statute of Gloucester outlawed defamatory speech aimed against the aristocracy.[12]

 

Thus, in preventing attempts to sully the King and his confidantes reputation, the crown was empowered to preserve their dwindling authority. Indeed, the late fifteenth century saw the transition of defamation from sinful to criminal behaviour, as the secular judicial system reclaimed authority over cases involving slander.[13] The existing primary material attests to this deliberate campaign. In 1432, Andrew de Holes was convicted of slander after he defamed Richard de Bulkeley in the presence of King Henry VI. Due to Andrew’s false claims, ‘great scandal and discord’ is said to have developed between Richard and the King.[14] As a result of this circumstance, Andrew de Holes was charged with violating the royal legislation regarding defamation. Whilst in-fighting amongst the nobility was somewhat common, especially as they vied for the crown’s favour, any attempt to involve the King in matters concerning reputation was strictly forbidden. Reputation conveyed power in medieval culture, and in a society fraught with political instability and social discord, even the King was not immune to the fallout evoked by slander. The vast scope of defamation, reaching from the highest echelons of society to those poverty-stricken and destitute, demonstrates the degree to which slander was considered an instrument of sorts, one which could maintain the social equilibrium which governed medieval culture.

 

II. Wicked Women

Virtue and chastity formed the basis of a woman’s ability to exercise autonomy and secure both financial and social security. Ergo, we may state that a medieval women’s reputation was, in due part, dependent on her disposition. Those who spoke boldly and confidently were deemed scolds. Compliancy was key to maintaining strong social relationships, as being regarded as an outspoken women not only implied that they were reckless and disruptive, but severely limited their agency and social mobility. Being labelled a scold carried with it analogous connotations, most notably concerning sexual deviation and violent inclinations.[15] In the view of the medieval community, scolds endangered the finely balanced social order.[16] This paradigm is reflected in the medieval courts, as scolding, though related to defamation, was considered an offence in and of itself. Early fifteenth century records from Middlewich, in Cheshire, attests to just how prevalent this phenomenon was during this era, as up to a third of legal cases dealt with in the Middlewich court centred around scolding.[17] Indeed, returning to the theological basis for these moral attitudes to social behaviour, it is without doubt that the Bible modelled this outlook towards women and their supposed propensity to spread rumours with malicious intent. St. Paul directed women to ‘learn in quietness and full submission’, as he believed that women, without the guidance of a figure of male authority, would ‘learn to be… not only idlers but gossips and busybodies, saying what they should not’.[18] These motifs were mirrored in the contemporary literature, which only further fuelled both the frequency to which women were being prosecuted, as well as the wider public fear of women conducting themselves outside of the prescribed social and legal guidelines.

 

Much akin to scolding, medieval society understood sexual defamation within an inherently gendered structure. Once again, this may be attributed in part to the history of theological discourse. Leading clerical ideologies from the early Middle Ages promoted an overtly misogynistic overtone, as figures such as Peter Damien, Doctor of the Church, wrote: ‘So come and listen to me, you strumpets, prostitutes waiting to be kissed, you wallow for fat pigs, den of unclean spirits, nymphs, sirens, witches, forest goddesses of the night, and if there are yet other monstrous titles of ill-omen that one can find, they should well be ascribed to you.’[19] The vast majority of court cases in the historical record relating to this accusation pertain primarily to women, both by way of and against. Defamation of this nature often incited further legal difficulty for the victims, including fornication. As such, given both the social and legal repercussions of such defamatory accusations, there exists ample evidence of victims taking their accusers to court on the basis of slander.[20] A case which exemplifies this paradigm is that of Christina Fressell, from 1496.[21] Christina submitted an indictment of defamation against Nicholas and Joan Lambert, as ‘the said Joan said and publicly proclaimed that she saw her husband carnally copulating with the said Christina’.[22] Given the public nature of Joan’s accusation, Christina is left with little choice but to openly, and legally, denounce said claims, in order to salvage her reputation. Once more we see a clear parallel between virtue and social mobility, as Christina is forced to exonerate herself, despite the fact that the slander evoked against her lacked substantial evidence, so that she may exercise her small degree of autonomy without objection. A woman’s independence was only permitted on the basis of her unfailing morality.

 

Indeed, an important aspect of this specific subsection of libel, are the epithets that such allegations provoke. As the Middle Ages progressed, the once ubiquitous titles of ‘whore’ and ‘harlot’ lost their generality and came to be associated with women more universally. This evolution is made clear as one can map the etymology from meaning ‘knave or rascal’ to becoming synonymous with immorality and deviance, or in other words - prostitution.[23] One register from the court of Middlesex in 1497, records the case of a man who slander’s another’s mother, stating: ‘preches horeson kocold, thy moder is an hore and an harlet’.[24] These nominates, even when applied across the gender spectrum, demonstrate the degree to which femininity was defamed and disparaged. Otherwise stated, the increasing usage of these epithets indicates an emerging phraseology centred around licentious female behaviour, and accordingly, suppressing this manner of conduct. In R.L Poos’s study of the English medieval judicial system, he discovers that the fifteenth century Wisbech, London and Durham ecclesiastic courts record 102 individual cases concerning defamation.[25] A disproportionate seventy-seven of these cases relate to women. With regard to London specifically, Poos states that twenty-one cases pertain directly to sexual defamation, six of whom relate to ‘whoredom’ and another six relate to extra-marital affairs.[26]Given the statistical evidence, we can assuredly state that sexual defamation in medieval society is a largely female experience, and thus, with the popularisation of sexual slander, sexual honour became increasingly crucial to a woman’s reputation.

 

Concluding Remarks:

The medieval world, regardless of geography, relied intensely on orality.[27] Hence, it may be unsurprising, given its ubiquity and subsequent power, that speech evolved into a fundamental indicator of social unity and/or social unrest. The power of speech permeated every stratum of society, regardless of wealth or title. It pervaded theological discourse and remained omnipresent as an instrument to sow social discord. However, in many of the cases recorded in the judicial process, as well as the contemporary literature, defamation was utilised as a means to oppress individualism. Medieval society was wholly depended on proximity and community, and therefore, the majority of the existing primary source pertaining to defamation reinforce these values. Thinking and acting contrary to social norm was discouraged as a mechanism for survival. Hence, though it may seem that the legislation and the degree of social seclusion and repercussion imparted on those who acted rogue, outside the bounds of what was considered socially acceptable, was somewhat severe, it may be theorised that it was an attempt to endure a harsh world as a homogenised community. Survival was dependent on social cohesion, and the realities provided by medieval defamation cases reflect this fact.

[1] (ed.) Benson, Larry D., ‘The Nun’s Priest’s Tale,’ in Chaucer, Geoffrey, The Riverside Chaucer, 3rd ed.  (1987), 259, lines 3257–58.

[2] Neal, D. G., The Masculine Self in Late Medieval England (2008), p. 13.

[3] Idem, p. 24.

[4] Ibid.

[5] Idem, p. 31.

[6] Ibid.

[7] Bardsley, Sandy, Venomous Tongues: Speech and Gender in Late Medieval England (2006), p. 27.

[8] Ibid.

[9] Lindorfer, Bettina, ‘Peccatum Linguae and the Punishment of Speech Violations in the Middle Ages and Early Modern Times’, in Speaking in the Medieval World, (ed.) Godsall-Myers, Jean E. (2003), p. 27.

[10] Kane, B. C., ‘Defamation, Gender and Hierarchy in Late Medieval Yorkshire’, Social History 43:3 (2018), p. 361.

[11] Statutes of the Realm: Printed by Command of His Majesty King George the Third . . . from Original Records and Authentic Manuscripts, Reprint of 1810–28 ed. (1963), vol. 1, p. 35.

[12] Statutes of the Realm, vol. 2, p. 9.

[13] Bardsley, Venomous Tongues (2006), p. 29.

[14] Ibid.

[15] Bardsley, Venomous Tongues (2006), p. 2.

[16] Ibid.

[17] Tonkinson, A. M., ‘Macclesfield in the Later Fourteenth Century: Communities of Town and Forest’, Chetham Society Publications, 3rd series, vol. 42 (1999), p. 52.

[18] New International Version, 1 Timothy 2:11; New International Version, 1 Timothy 5.

[19] (trans.) Blum, Owen J., Peter Damian: Letters (1998), p. 276, letter 112, verse 34.

[20] Poos, L.R., ‘Sex, Lies, and the Church Courts of Pre-Reformation England’, Journal of Interdisciplinary History 25 (1995), p. 586.

[21] Idem, p. 589.

[22] Ibid.

[23] Idem, p. 591.

[24] Ibid.

[25] Idem, p. 598.

[26] Ibid.

[27] Bardsley, Venomous Tongues (2006), p. 2.

   1. Introduction

 At the core of Irish defamation law is an attempt to reconcile two Constitutional provisions; Article 40.3.2°, which describes the citizen’s right to a good name as one which shall “in particular’’ be protected and vindicated by the State; and Article 40.6.1°i, which guarantees the “right of the citizens to express freely their convictions and opinions’’.^[1] The legislative task of upholding the citizens’ right to a good name without unnecessarily hampering the exercise of liberty of expression is crucial, yet arduous.

In January 2010, the Defamation Act 1961 was repealed and replaced by Defamation Act 2009 (the Act), which consolidated many of the common law principles on defamation and introduced significant reforms.^[2] As this article shall demonstrate, however, the Act strikes an inadequate balance between the two competing rights, weighing heavily towards reputational protection at the expense of free speech and public-interest reporting, which are integral to a functional democracy. Further, in view of an increasingly complex digital landscape, the Act is severely outdated, lacking the intricacies necessary to redress online and anonymous defamation.

Although two Defamation (Amendment) Bills were produced by the Government in the last 10 years, neither of them have been enacted^[3]. However, following publication of the Draft General Scheme of the latest Defamation (Amendment) Bill in March 2023, the question as to whether the current regime may be subject to a far-reaching overhaul in the near future remains a live one. This article addresses some of the core shortcomings of the 2009 Act in light of reform proposed within the Draft General Scheme.

 

  2. Issuing proceedings under the 2009 Act

Presently, pursuant to sections 6(2) and 6(3) of the 2009 Act, in order to bring a defamation claim, a potential claimant need only prove that the impugned statement was published to a third party, that it identified the claimant, and that it was “defamatory” in nature i.e., that it caused reputational damage “in the eyes of reasonable members of society’’.^[4]Moreover, section 12 of the Act provides that a body corporate can similarly issue defamation proceedings irrespective of “whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.”

The current standard imposed by the Act is minimal. The ease with which proceedings can be brought does not prove effective in filtering out trivial, unmeritorious, or vexatious claims, as the prospective plaintiff need not demonstrate that serious reputational damage or material loss have in fact arisen from the impugned statement. Under the presumption of falsity, a long-standing common law principle on defamation, the plaintiff need not prove that the ‘defamatory’ statement is false.^[5] The omission of such conditions inarguably favours the prospective plaintiff,^[6] particularly when considering that the legal burden subsequently falls on the defendant to prove himself innocent, or to prove the statement true^[7] – an endeavour which necessitates appreciable time, money, and resources. This creates a severe imbalance and may have strongly contributed to the high frequency of defamation claims brought in Ireland in recent years,^[8] together with what has long been marked in mainstream media as ‘defamation tourism’.^[9] Disconcertingly, in the European Commission’s 2020 Rule of Law Report, the frequent use of defamation action in Ireland was strongly criticised as an “inducement to self-censorship and a constraint to media freedom”.^[10]

Review of the equivalent law in comparable jurisdictions, such as England and Wales, reveals that Irish defamation law, as it stands, is far more favourable to the prospective plaintiff in this regard.^[11] Importantly, Section 1(1) of the England and Wales Defamation Act 2013 (the 2013 Act) imposes a serious harm test, wherein a statement is only deemed to be defamatory if “its publication has caused or is likely to cause serious harm to the reputation of the claimant”.^[12]With respect to bodies which trade for profit, section 1(2) specifies that “serious harm” must constitute likely or actual “serious financial loss”.^[13] Prior to the 2013 Act, the concept of serious harm was established in Jameel v. Dow Jones & Anor^[14] and further consolidated in Thornton v. Telegraph Media Group,^[15] wherein Tugendhat J asserted that, in deciding whether a claim should proceed, the courts “must always include a threshold of seriousness so as to justify the interference with the Article 10 [ECHR] right of freedom of expression”.^[16] In Scotland and Australia, analogous serious harm tests are imposed.^[17]

The Draft General Scheme proposes the imposition of a seriousness threshold in relation to defamation actions brought by bodies corporate, insofar as they must demonstrate that the impugned statement “has caused, or likely to cause, serious harm to the reputation of the body corporate in the eyes of reasonable members of society”.^[18] With regards to corporate bodies which trade for profit, the Draft General Scheme proposes a requirement akin to that introduced by section 1(2) of the England and Wales Defamation Act 2013.^[19] In addition, the adoption of a seriousness test is also proposed in relation to defamation claims emerging from ephemeral statements made in the course of providing retail services, otherwise known as “transient retail defamation” actions.^[20]

Notwithstanding the significance of these proposals, the lack of an all-encompassing serious harm threshold risks allowing trivial claims to persist in stifling liberty of expression and overburdening the courts with costly and lengthy proceedings.^[21] In circumstances wherein the waiting time for the allocation of a hearing date for defamation trials presently stands at 14 months,^[22] there is a strong incentive to urgently alleviate these delays. Substantially delaying the vindication of a defamed individual’s reputation, particularly where defamation arises from digital publication with a potential for rapid circulation, constitutes a complete denial of justice.^[23] Therefore, the imposition of a comprehensive seriousness threshold may serve to expedite adjudication, lessen the restrictive effect of defamation law on liberty of expression by discouraging its misuse,^[24] and enable more effective utilisation of court resources.^[25]

 

  3. Jury decisions and awards

Despite the abolition of juries from nearly all civil proceedings in Ireland,^[26] the 2009 Act preserves their role in High Court defamation litigation.^[27] Jury involvement is widely regarded to significantly lengthen defamation proceedings and, intuitively, render them more costly^[28]. Indeed, a comparative Oxford study has shown that Ireland ranks second highest to the UK in costs incurred during defamation proceedings across Europe.^[29] Since then, however, the UK has statutorily displaced the presumption of a defamation trial by jury.^[30]

Ireland has also ranked second highest to the UK with respect to the damages awarded in defamation cases across Europe.^[31] Considering both jurisdictions uniquely employed a jury-determined system of damages at the time, the study identified a correlation between the use of jury trials and unusually high damages.^[32] The UK has since not only displaced jury trials but also imposed a notional ceiling on libel awards, approximately set at £30,000 – a figure reserved for the gravest of allegations, such as imputations of murder or terrorism.^[33]

Given the absence of a cap on damages in Irish law^[34] and the continued involvement of juries in deciding on quantum of damages,^[35] the Draft General Scheme proposal to abolish juries in High Court defamation actions is commendable.^[36] The rationale underpinning this endorsement is three-fold;^[37] jury-awarded damages are entirely unpredictable,^[38] very often disproportionate,^[39] and often many times larger than those awarded in other European jurisdictions.^[40] Although the 2009 Act provides for guidance to be given to juries on assessing general damages,^[41]this has proved largely insufficient.^[42] Indeed, Irish jury awards for defamation have reached levels of €10 million,^[43]€1.87 million,^[44] €900,000,^[45] and €750,000. All figures were deemed excessive and disproportionate by appellate courts, each being reduced drastically on appeal. Notably, the €10 million award in Kinsella v. Kenmare Resources Plc was reduced by 97.5% to €250,000.^[46] The €900,000 jury award in McDonagh v. Sunday Newspapers Limited was similarly deemed excessive by a 92% margin on appeal.^[47] These observations disclose an issue not only with the frequency of excessive jury awards, but also the extent of their disproportionality.

It is for this reason that the current regime has been subject to strong international criticism. On discussion of the EU Commission’s 2020 Rule of Law report,^[48] Justice Commissioner Didier Reynders^[49] flagged “the high cost of defence and the high damages awarded by the Irish courts’’ as circumstances which work to “the detriment of the fight against corruption’’.^[50] Moreover, the European Court of Human Rights (ECtHR) recently ruled that an Irish Supreme Court-approved award of €1.25 million violated Article 10 of the ECHR due to its “unreasoned” nature, and found that the safeguards in place at both trial and appellate level against disproportionate and arbitrary defamation awards had failed.^[51] The ECtHR voiced concern in relation to such awards, emphasising their potential to exert a “chilling effect” on freedom of expression.^[52]

Reporters without Borders (RSF) further criticised the 2009 Act in this regard as one which “has fuelled a trend of self-censorship’’ by enabling “exorbitant damages’’ to be awarded, coupled with high defence costs.^[53] Under these circumstances, “prominent individuals known to be litigious [have] become largely untouchable by the Irish media”.^[54]Based on approximated values of between €200,000 and €250,000 in legal fees alone to be incurred within four days of defending a High Court defamation case in Ireland, Index on Censorship reported that it considers the burden of a single defamation case sufficient to shut down many Irish media outlets.^[55]

Irish defamation law at present is thus manifestly vulnerable to abuse.^[56] Powerful, wealthy individuals are virtually incentivised to deploy threats of litigation, even if groundless, in order to intimidate academics, scientists, journalists and critics, who are often cognisant of the high costs incurred in defending defamation litigation, as well as the risks of a jury trial. The efficacy of such tactics lies in the sheer ease with which defamation litigation can be brought, particularly in the absence of a seriousness threshold, and the gross financial burden it imposes on potential defendants. Accordingly, the mere prospect of litigation enables public individuals to suppress vigilance and public-interest reporting of their activities with alarming ease, as few journalists or academics can realistically take the risk to publish. In this context, the 2009 Act has been described as one which “has supplemented the plaintiff’s armoury substantially”,^[57] a perspective which may be largely attributed to punitive costs, jury unpredictability, and delays – aspects of Irish defamation law which may be successfully leveraged by a prospective plaintiff, regardless of whether the claim has substance.

The proposed abolition of jury trials in defamation litigation thus goes some way toward ensuring that proportionality governs all forms of remedy encroaching on the right to liberty of expression. Additionally, the reform would rectify the lack of transparency stemming from the  impermissibility of jury awards being substantiated by reasons or logic. The unsupported nature of such decisions presently shrouds defamation outcomes in legal uncertainty and significantly raises the incidence of appeals (which are grossly costly), further protracting litigation. These reverberations anchored the ECtHR’s recent condemnation of the lack of explicit reasoning for a defamation award of €1.25 million^[58] in Independent Newspapers (Ireland) Limited v. Ireland.^[59]

In light of such concerns, the proposed abolition of jury decisions is pivotal in establishing a framework wherein the work of journalists and academics is not imperilled by the prospect of prohibitive,^[60] costly,^[61] and unpredictable litigation.

 

  4. Defences

Part 3 of the 2009 Act provides nine potential defences and privileges for use by a defendant against  a defamation claim;^[62] the defence of truth,^[63] innocent publication,^[64] fair and reasonable publication on a matter of public interest,^[65] honest opinion,^[66] offer of amends,^[67] apology,^[68] consent to publish,^[69] absolute privilege,^[70] and qualified privilege.^[71] The operation of two of the existing defences, which are particularly relevant to journalists, are examined below.

 

  4.1. The defence of truth

A disputed statement is not considered defamatory by the courts if it is materially true.^[72] Pursuant to section 28(3) of the Act, however, a contested statement is presumed to be false at the outset by the courts, in compliance with the long-standing presumption of falsity.^[73] A prospective plaintiff may thus bring proceedings against a publisher without demonstrating falsity of the impugned publication.^[74] The legal burden, instead, rests on the defendant to sufficiently demonstrate veracity of the publication to prove himself innocent, if he chooses to plead the “defence of truth” provided by section 16(1) of the Act.

It is indeed fair to hold individuals to account with respect to assertions they make about others. However, in certain instances, a defendant is unable to establish the truth of a publication in court, notwithstanding its actual veracity.^[75] An investigative journalist whose report is based on a confidential source who is unwilling to testify in court or disclose theiridentity is unjustly left unable to invoke the “defence of truth” provision.^[76] In such cases, a journalist may choose to forgo publishing under the recognised threat of indefensible litigation. This concern was at the core of the ECtHR’s finding that the common law presumption of falsity could violate Article 10 of the ECHR in the absence of procedural fairness and equality of arms, and that a newspaper should be exempt of the burden of proving veracity if the publication was made on foot of a reasonable, protected source.^[77] Indeed, in Wall St Journal Europe v. UK, application of the presumption in those circumstances was held to violate Article 10 of the ECHR.^[78]

In 1991, the Law Reform Commission suggested that the presumption of falsity be abolished, with the majority considering “the existence of an artificial presumption at variance with the facts” to be unjust to publishers and out of line with the public interest.^[79] Notably, however, the Draft General Scheme does not advance any proposals whatsoever in this respect.

Although it is not being submitted here that the presumption should be abolished entirely, reversal of the burden of proof onto the plaintiff where the plaintiff is a public official, or when the matter is of public concern, merits consideration. An exception akin to this exists in the United States pursuant to the 1986 Supreme Court judgment in Philadelphia Newspapers v. Hepps,^[80] whose footing lies in the free speech protections guaranteed by the First Amendment to the Constitution. The concern arises, however, that adopting this approach may open the metaphorical ‘floodgates’ to a barrage of reckless, unfounded statements concerning public officials, issued without sufficient care as to their truth or falsehood. The better recommendation, therefore, is to reverse the burden of proof onto a public-official plaintiff (or in relation to a public matter) only where the standards of responsible journalism provided in section 26 of the Act are satisfied.

Reform of this nature is exigent, particularly considering the procedural inefficacy (examined below) of the public-interest defence provided by the Act,^[81] together with the journalistic obligation to protect sources at risk. Defamation law should not pose an indefensible threat to responsible investigative journalism, as this ill serves the citizens of a democracy and their right to receive information on matters of public interest from the press.^[82]

 

  4.2. The defence of fair and reasonable publication

Section 26 of the Act provides for a defence of “fair and reasonable publication on a matter of public interest”, intended primarily for use by media defendants.^[83] The defence requires that the act of publication satisfies both fairness and reasonableness standards^[84] based on an indicative list of 10 matters to be considered in section 26(2). Further, in order to plead this defence a defendant must demonstrate that the publication was made in good faith, and on a subject of public interest whose discussion is of public benefit.^[85] Finally, the defendant must also prove that the “manner and extent of publication of the statement did not exceed that which was reasonably sufficient.”^[86]

The requirements presently imposed by section 26 are manifestly onerous,^[87] convoluted,^[88] and hedged,^[89]insofar as the defence has been described by the public broadcaster as a “statutory dead letter” which fails to protect the liberty of expression of a defendant who has truly published fairly and reasonably on a matter of public concern.^[90] In November 2016, Hogan J acknowledged that the defence had not yet ever been successfully mounted in a defamation case,^[91] which remains true at the time of writing.

In respect of this defence, the Draft General Scheme importantly recommends the simplification of its criteria, with a view to facilitating its use by defendants whose publications are truly in the public interest.^[92] In particular, it proposes reducing the existing section 26 criteria to proving three matters; (1) that the impugned statement relates to a matter of public interest, (2) that the defendant reasonably believed that its publication was in the public interest, and (3) that the defendant acted as it is reasonable to expect of a responsible journalist.^[93] Given its improved clarity, implementation of this proposal is much anticipated.

 

  5. Online defamation and anonymity

The 2009 Act does not distinctly address the matter of online publication.^[94] Section 2 merely incorporates “electronic communication” and internet publications within the definition of potentially defamatory publications. The transformative features of rapid, instantaneous dissemination and anonymous publication of content – which digital technology enables – are not addressed by the Act.^[95] The general remedies provided fail to embrace the urgency with which an online defamatory statement must be removed, considering the sheer ease and speed with which it can circulate. Protracting such remedies risks magnifying the reputational damage the injured plaintiff suffers,^[96] and, in some cases, renders it irreversible.^[97]

The inefficacy characterising injunctions in this regard has, in fact, been subject to great criticism, particularly considering that damages may prove an empty remedy when an individual has been defamed online.^[98] In such instances, rapid removal of the content by way of injunction is often prioritised.^[99] The process of granting such injunctions, however, is considerably protracted when the defamatory statement in question has been published anonymously or under a pseudonym, as the publisher must be identified before the defamed plaintiff can begin to access relief in court.^[100] In such cases, the court may grant a Norwich Pharmacal Order,^[101] which compels the internet service provider to disclose the identity of the established wrongdoer,^[102] so that he can be served with court orders or proceedings. The jurisdiction to grant such relief, however, is presently limited to the superior courts,^[103] despite defamation cases being heard in both the Circuit and High Court.

The Draft General Scheme proposes extension of these powers to the Circuit Court. This reform is imperative, particularly given that pursuing Norwich Pharmacal relief in the High Court is disproportionately costly and burdensome, as described by Charleton J in EMI Records (Ireland) Ltd v. UPC Communications Ireland Ltd.^[104]  In vindicating citizens’ rights to a good name, such reliefs should not be put beyond the reach of those who do not have the means to effectuate them.

 

   6. Financial restrictions to access to justice

Section 28(9)(a)(i) of the Civil Legal Aid Act 1995 classifies defamation (unless it arises by way of counterclaim)^[105] as a “designated matter” which is expressly excluded from civil legal aid. However, the excessive costs incurred in defamation litigation in Ireland are considered prohibitive to prospective plaintiffs and defendants alike. On the one hand, defamed individuals lacking financial means are left unable to vindicate their right to a good name, and on the other, publishers may have to withdraw a statement rather than defend it, because they simply cannot afford to incur the litigation costs of a defamation action. This exerts a chilling effect on liberty of expression and buttresses the ECtHR’s finding that the blanket denial of legal aid in respect of defamation proceedings is unjust and violates the right to a fair hearing guaranteed by Article 6(1) of the ECHR.^[106]

Disconcertingly, the Draft General Scheme proposes no reforms in this respect. Defamation action, together with the redress which may accompany it, should not be limited to those with financial means. Indeed, amendment of the 2009 Act to include a provision for the removal of defamation from the “designated matters” listed in section 28(9)(a)(i) of the Civil Legal Aid Act 1995, merits serious consideration.^[107]

 

  7. Conclusions

Thirteen years since its inception, it is clear that the 2009 Act is in urgent need of reform. The imperative for reform extends beyond curbing its susceptibility to misuse by influential figures aiming to stifle legitimate criticism, and encompasses the broader goals of rendering redress financially accessible, proportionate, consistent, and expeditious. While the Draft General Scheme presents commendable strides in this direction, its shortcomings necessitate careful consideration. Navigating the intricate balance between competing Constitutional rights is challenging, yet paramount to crafting a defamation framework that serves both the protection of reputation and the preservation of unbridled public discourse.

 

[1] Article 40.6.1°i, first sub-paragraph (of the Constitution).

[2] McMahon and Binchy, Law of Torts (4^th ed., Bloomsbury Professional, 2013), chapter 34, at [34.08].

[3] Defamation (Amendment) Bill 2017 (No. 102 of 2017) and Defamation (Amendment) Bill 2014 (No. 63 of 2014).

[4] Defamation Act 2009, s 2.

[5] Defamation Act 2009, s 28(3).

[6] Christopher McMahon, “Statutory Reform, Judicial Interpretation, and Libel Tourism – A Ticket from London to Dublin?” (2018) 1 Tort Law and Litigation Review 29, at 31.

[7] Defamation Act 2009, s 16(1).

[8] Courts Service Annual Report 2020, at 48.

[9] Christopher McMahon, note 6, at 41. See also; Eva Short, ‘Libel tourism’ and ‘untouchables’ put spotlight on Ireland’s defamation laws https://www.businesspost.ie/post-plus/libel-tourism-and-untouchables-put-spotlight-on-irelands-defamation-laws/ (visited January 12, 2024); Karyn Harty, Why a growing number of ‘libel tourists’ could be making their way to our shores https://www.irishlegal.com/articles/karyn-harty-why-a-growing-number-of-libel-tourists-could-be-making-their-way-to-our-shores (visited January 12, 2024); Shane Phelan, How Ireland’s draconian laws continue to entice libel tourists such as Tony Robbins https://www.independent.ie/irish-news/courts/how-irelands-draconianlaws-continue-to-entice-libel-tourists-such-as-tony-robbins-40337357.html (visited January 12, 2024), and Eoin O’Dell, Ireland: Is Dublin becoming the defamation capital of the world, the libel-tourism destination of choice? https://inforrm.org/2015/11/17/ireland-is-dublin-becoming-the-defamation-capital-of-the-world-the-libel-tourism-destination-of-choice-eoin-odell/ (visited January 12, 2024).

[10] European Commission, 2020 Rule of Law Report: Country Chapter on the rule of law situation in Ireland (European Commission, 2020) at 13.

[11] Christopher McMahon, note 6, at 29. See also; Andrew Scott, Cascading effort in defamation reform: four key themes https://assets.gov.ie/122256/5e1afd84-cbba-49fa-ab1b-ba81d2ea53fe.pdf (visited January 12, 2024), Mark Patrick Hanna, “The ‘chilling effect’ of defamation law in Northern Ireland? A comparison with England and Wales in relation to the presumption of jury trial, the threshold of seriousness and the public interest defence” (2021) 72 NILQ 1, and Carolin Anne Bayer, Re-thinking the common law of defamation: Striking a new balance between freedom of expression and the protection of the individual’s reputation (The University of British Columbia, 2001).

[12] Defamation Act 2013, s 1(1) https://www.legislation.gov.uk/ukpga/2013/26/crossheading/requirementofseriousharm/enacted.

[13] Ibid., s 1(2).

[14] [2005] QB 946 at [40].

[15] [2010] EWHC 1414, at [61].

[16] Mark Patrick Hanna, note 11, at 11.

[17] Defamation and Malicious Publications (Scotland) Act 2021, s 1(2)(b), and Model Defamation Amendment Provisions 2020, s 2(1)(a).

[18] Draft General Scheme of the Defamation (Amendment) Bill, Head 4.

[19] Ibid.

[20] Ibid., Head 6.

[21] Bayer, Bárd, Vosyliute, and Luk, “Strategic Lawsuits Against Public Participation (SLAPP) in the European Union: A Comparative Study” (European Commission, 2021), at 222-223.

[22] Courts Service Annual Report 2021, at 118.

[23] See; McDonagh v. Sunday Newspapers [2017] IESC 59, a case in which the final decision was issued almost 18 years following the impugned publication.

[24] Mark Patrick Hanna, note 11, at 16.

[25] Eoin O’Dell, Ireland: Man wins ‘fleeting defamation’ case and is awarded €500, should the law of defamation really concern itself with such a trifle? https://inforrm.org/2019/12/15/ireland-man-wins-fleeting-defamation-case-and-is-awarded-e500-should-the-law-of-defamation-really-concern-itself-with-such-a-trifle-eoin-odell/ (visited January 12, 2024).

[26] Courts Act 1988, s 1.

[27] McGonagle and Brody, “The Irish Defamation Act – too little too late?” (2010) 2 CL 43, at 46. See also; McMahon and Binchy, note 1, at [34.112].

[28] NewsBrands Ireland, Ireland’s Draconian Defamation Laws Must Be Reformed – It’s in The Public Interest

https://newsbrandsireland.ie/policy-issues/defamation/ (visited January 12, 2024).

[29] Ireland was almost ten times more costly than Italy, the third most expensive jurisdiction evaluated in the study. See; Troels Larson and Danilo Leonardi, “A Comparative Study of Costs in Defamation Proceedings Across Europe” (Programme in Comparative Media Law and Policy, University of Oxford, 2008), at 187.

[30] Defamation Act 2013, s 11.

[31] Troels Larson and Danilo Leonardi, note 26, at 189.

[32] Ibid.

[33] Barron & Ors. v. Collins [2017] EWHC 162 (QB), at 26.

[34] Note that Draft General Scheme does not discuss the prospect of introducing a statutory cap on damages or a book of quantum.

[35] Defamation Act 2009, s 31(8).

[36] Draft General Scheme of the Defamation (Amendment) Bill, Head 3.

[37] Bayer, Bárd, Vosyliute, and Luk, note 18, at 222. See also; McGonagle and Brody, note 24, and Furlong, Cole, O’Shiel, and Moran, Irish Defamation Laws: An All-Island approach https://inforrm.org/2021/04/10/irish-defamation-laws-an-all-island-approach-kenan-furlong-nicholas-cole-ciaran-oshiel-and-christina-moran/ (visited January 12, 2024).

[38] McGonagle and Brody, note 24; Furlong, Cole, O’Shiel, and Moran, note 31.

[39] Ibid.

[40] NewsBrands Ireland, note 25.

[41] Defamation Act 2009, s 31.

[42] See; Higgins v Irish Aviation Authority [2020] IECA 157; [2018] IESC 29, wherein a €387,000 jury award was reduced on appeal to €76,500 as it was deemed to be “so unreasonable as to be disproportionate to the injury sustained”, despite the jury being guided as to the reasoning behind landmark defamation awards, and levels of damages granted in very serious personal injuries.

[43] Kinsella v. Kenmare Resources Plc [2019] 2 IR 750.

[44] Leech v. Independent Newspapers (Ireland) Limited [2015] 2 IR 214.

[45] McDonagh v. Sunday Newspapers Limited [2015] 10 JIC 1904.

[46] [2019] 2 IR 750.

[47] [2015] IECA 225; 10 JIC 1904.

[48] European Commission, note 10.

[49] Sean Murray, Defamation laws 'seen as an inducement to self-censorship' for media in Ireland, EU commissioner sayshttps://www.thejournal.ie/defamation-laws-oireachtas-5376344-Mar2021/ (visited January 12, 2024).

[50] European Commission, note 10.

[51] Independent Newspapers (Ireland) Limited v. Ireland App no 28199/15 (ECtHR, 15 June 2017).

[52] Ibid.

[53] Reporters Without Borders, Ireland https://rsf.org/en/country/ireland (visited January 12, 2024).

[54] Adam Daly, Ireland warned its highly concentrated media ownership is 'single largest threat to press freedom'https://www.thejournal.ie/press-freedom-index-rsf-ireland-media-ownership-4596375-Apr2019/ (visited January 12, 2024).

[55] Jessica Ní Mhainín, A gathering storm: the laws being used to silence the mediahttps://www.indexoncensorship.org/campaigns/the-laws-being-used-to-silence-media/ (visited January 12, 2024), at 10.

[56] Bayer, Bárd, Vosyliute, and Luk, note 18, at 221.

[57] Karl Sweeney, Defamation Act 2009 Overview https://www.lawyer.ie/defamation/defamation-act-2009/ (visited January 12, 2024).

[58] Leech v. Independent Newspapers (Ireland) Limited [2015] 2 IR 214.

[59] Independent Newspapers (Ireland) Limited v. Ireland App no 28199/15 (ECtHR, 15 June 2017), at [105].

[60] Mark Tighe, RTE demands legal reform over soaring costs of defamation https://www.thetimes.co.uk/article/rte-demands-legal-reform-over-soaring-costs-of-defamation-33zjzqfvk (visited January 12, 2024). See also; Neville Cox, Ireland can remove the chill factor from defamation laws - and protect citizens' good names https://www.thejournal.ie/readme/defamation-law-ireland-change-reform-4619227-May2019/ (visited January 12, 2024).

[61] Furlong, Cole, O’Shiel, and Moran, note 31.

[62] Andrew Scott, Cascading effort in defamation reform: four key themes https://assets.gov.ie/122256/5e1afd84-cbba-49fa-ab1b-ba81d2ea53fe.pdf (visited January 12, 2024).

[63] Defamation Act 2009, s 16.

[64] Defamation Act 2009, s 27.

[65] Defamation Act 2009, s 26.

[66] Defamation Act 2009, s 20.

[67] Defamation Act 2009, s 22.

[68] Defamation Act 2009, s 24.

[69] Defamation Act 2009, s 25.

[70] Defamation Act 2009, s 17.

[71] Defamation Act 2009, s 18.

[72] McMahon and Binchy, note 1, at [34.19].

[73] T. John O'Dowd, “Ireland’s New Defamation Act” 1 Journal of Media Law 176, at 174.

[74] McMahon and Binchy, note 1, at [34.104].

[75] Cox and McCullough, Defamation: Law and Practice (Clarus Press, 2014).

[76] Neville Cox, Ireland can remove the chill factor from defamation laws - and protect citizens' good names https://www.thejournal.ie/readme/defamation-law-ireland-change-reform-4619227-May2019/ (visited January 12, 2024).

[77] Steel and Morris v. UK App no. 68416/01 (ECtHR, 2005).

[78] Wall St Journal Europe v. UK App no. 28577/05 (ECtHR, 2009).

[79] Law Reform Commission, Report on Civil Law of Defamation, at 56.

[80] [1986] 475 US 767.

[81] Bayer, Bárd, Vosyliute, and Luk, note 18, at 223.

[82] Pedersen & Anor. v Denmark App no 49017/99 (ECtHR, 17 December, 2004), at [71].

[83] McGonagle and Brody, note 24, at 45.

[84] Defamation Act 2009, s 26(1)(c).

[85] Defamation Act 2009, s 26(1)(a).

[86] Defamation Act 2009, s 26(1)(b).

[87] McGonagle and Brody, note 24, at 45.

[88] Neville Cox, “Recent developments in Irish defamation law” (2018) 1 Tort Law and Litigation Review 47, at 55.

[89] T. John O'Dowd, note 69, at 187.

[90] Bayer, Bárd, Vosyliute, and Luk, note 18, at 223.

[91] Meegan v. Times Newspapers Ltd [2017] IECA 327; [2016] 11 JIC 0907, at [10].

[92] Christopher McMahon, note 6, at 35.

[93] Draft General Scheme of the Defamation (Amendment) Bill, Head 16.

[94] Law Reform Commission, Privilege for reports of court proceedings under the Defamation Act 2009 LRC 121 – 2019 at [1.10].

[95] Law Reform Commission, Harmful communications and digital safety LRC 116 – 2016 at [3.23-3.27].

[96] McMahon and Binchy, Law of Torts (4^th ed., Bloomsbury Professional, 2013) at [34.11].

[97] Tansey v. Gill [2012] IEHC 42; [2012] 1 JIC 3108, at [25].

[98] Ibid., at [24].

[99] Law Reform Commission, note 90, at 126.

[100] David Culleton, “The Law relating to Norwich Pharmacal Orders” [2021] 5 Irish Judicial Studies Journal 20, at 20.

[101] Norwich Pharmacal Co v. Customs and Excise Commissioners [1974] AC 133.

[102] Furlong, Cole, O’Shiel, and Moran, Irish Defamation Laws: An All-Island approach https://inforrm.org/2021/04/10/irish-defamation-laws-an-all-island-approach-kenan-furlong-nicholas-cole-ciaran-oshiel-and-christina-moran/ (visited January 12, 2024).

[103] Megaleasing UK Ltd v. Barrett (No 2) [1993] ILRM 497.

[104] [2010] IEHC 377; [2010] 10 JIC 1101, at [62].

[105] Civil Legal Aid Act 1995, s 28(9)(b).

[106] Steel & Morris v. UK (2005) 41 EHRR 22.

[107] Civil Legal Aid Act 1995, s 28(9)(a)(i).

 

Introduction

This article responds to the Government’s proposed amendments to Article 41.2 of the Constitution, drawing on feminist legal scholarship in arguing that the changes, gender neutralising the provision in pursuit of formal legal equality, are ineffectual and counterproductive. It will first set out a brief overview of Article 41.2, its history, and the proposed amendments, then turn to theoretical criticism of legalistic formal equality, and how they apply to Article 41.2.

 

History of Article 41.2

1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

Article 41.2 has always been controversial, the subject of Dáil debates and attempted amendments before its passage.^[1] Women’s groups and opposition politicians argued it was backwards and would undermine women’s rights. De Valera defended the provisions as a protection for women, and a ‘tribute to the work that is done in the homes as mothers’.^[2] He stated it was not supposed to weaken women’s rights or women’s choices, but to recognise women who chose to live their lives in a particular way. The question of whether the provision was intended to provide or guarantee some sort of financial assistance to mothers or women in the home was left open.^[3] While the Article has been criticised for using the word ‘endeavour’,^[4] meaning there is no clear obligation on the state to act, it is notable that the Article was excluded from the non-justiciable provisions of Article 45, suggesting that it was envisaged that it may provide the basis of litigation.

While the Article is justiciable, it has come to be regarded as a ‘dead letter’ of the constitution. In L v L,^[5] Barr J in the High Court found for the plaintiff, applying the provision to override a rule of inheritance law which required financial contribution from a spouse to inherit the family home. Barr J held that this rule elevated financial contributions above housework in a manner inconsistent with Article 41.2. However, the Supreme Court overruled this, concentrating on the traditional development of property law, and citing the separation of powers, and the need not to veer into law making. Cahillane has noted that this Supreme Court was entirely made up of middle-aged or older men who were likely the sole owners of their property, and for this reason, the plaintiff’s legal team was not confident in their success on appeal.^[6] In Sinnott v Minister for Education,^[7] the majority of the Supreme Court denied the application of Article 41.2 to justify an award of damages to the plaintiff due to a breach of her constitutional rights as carer in the family, however, they did leave the application of Article 41.2 to award damages open to a future  ‘appropriate case’. In this case, Denham J delivered a strong minority judgment, reading Article 41.2 in light of modern Irish values to find for the plaintiff and award damages:

Article 41.2 recognises the significant role played by wives and mothers in the home. This recognition and acknowledgement does not exclude women and mothers from other roles and activities. It is a recognition of the work performed by women in the home. The work is recognised because it has immense benefit for society.^[8]

In DT v CT,^[9] Murray J took a similar approach by interpreting Article 41.2 as a ‘contemporary document’. In this case, he interpreted the provision as potentially applying to work done by men in the home. While this interpretation has been criticised by Cahillane,^[10] it shows the potential for courts to read the provision in light of modern values.

There are a few notable exceptions to the trend of the provision having little effect, where it was interpreted to justify ‘positive discrimination’ towards women. In Dennehy v Minister for Social Welfare^[11] Barron J upheld a social welfare provision that discriminated against deserted husbands versus deserted wives, citing Article 41.2, and referring to the underlying reality that men were more likely to work outside the home to support themselves than women. On the same grounds, in Lowth v Minister for Social Welfare,^[12] the Supreme Court upheld a provision which entitled women, but not men, to lone parent welfare support.

 

Criticism and Amendment of Article 41.2

The provision has come under significant criticism as an ‘archaic and sexist’^[13] relic of conservative Ireland which is constitutionally ineffective. The Irish Human Rights Equality Commission’s report on the Article notes the potential for the provision to perpetuate ‘stereotypical attitudes towards the role of women in Irish Society’.^[14] Whyte has observed that while the provision has not been explicitly cited to justify sexism and discrimination by the courts or Oireachtas, it is reflective of the system of values that permeated Irish society.^[15] Scannell, argues that the provision may be read, either as a tribute to women and the work they do in the home as mothers, or as an offensive form of sexual stereotyping.^[16] In light of this criticism, the Article has been reviewed a number of times over the years, recently by a citizens’ assembly which recommended changes that would gender neutralise the provision, and provide for wider and more justiciable recognition of care work generally within society.^[17] A joint Oireachtas Committee then examined the work of the citizen’s assembly, making further recommendations.^[18] The government subsequently proposed a set ofamendments to the constitution, including one to Article 41.2.^[19]

The government proposal involves deleting Article 41.2, and replacing it with a new Article 42 B, which reads as follows:

The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.

The use of ‘strive’, instead of ‘endeavour’, does not meaningfully increase justiciability, furthermore, the proposal limits the provision’s effect to within the family. Therefore, he government has not followed the recommendation of the citizens’ assembly to replace Article 41.2 with language that ‘obliges the State to take reasonable measures to support care within the home and the wider community’.^[20] The proposed amendment will have little effect outside of gender neutralising the provision, removing specific reference to women or mothers, in favour of ‘members of a family’. This amendment has already attracted extensive criticism from constitutional law commentators, with Cahillane stating the Government has ‘completely fudged an opportunity to do something positive’.^[21] O’Mahony has argued that the amendment is effectively ‘replacing a sexist dead letter with a gender-neutral dead letter’.^[22] Also notably absent from the proposed amendments is a specific provision on Gender Equality, which was recommended by the joint Oireachtas Committee,^[23]Varadkar justified this omission, on the basis that it could undermine the existing general constitutional equality guarantee.^[24] While the gender-neutralisation was recommended by the citizens’ assembly and constitutional convention,^[25] I will argue that this is merely ‘formal’ equality that is substantively counterproductive, and ineffectual in promoting equality or social change. I will argue that the government proposals are not merely a dead letter, but a regression of our constitution’s potential to support gender equality.

 

Criticisms of Formal Equality and the Proposed Amendment

Theoretical criticisms of the formal, legalistic equality embodied by the government’s proposed amendment will now be considered. In this regard, Naffine’s criticism of gender neutralising rape laws is poignant: she criticises Australian laws which removed gender from the crime of rape, because, ‘rape occurs in a society in which it is men who rape women, not women who rape men’.^[26] Naffine argues that the retention of gender specific rape crimes serves to highlight the sexist injustice of our society, and that gender neutralising the crime serves to obscure the underlying reality. While rape is a crime that affects all genders, and the law should account for this, we should not write reality out of the law in attempting to do so.

Similarly, gender neutralising 41.2 adopts a formalistic conception of equality that ignores the underlying reality. Women still bear a highly disproportionate burden of work in the home in Ireland, spending double the amount of time men do on caring and housework.^[27] Removing references to gender in Article 41.2 will not change this, and it gender neutralises an issue which is not gender neutral. Men increasingly take on work in the home, and this should not be ignored, however, the overriding societal issue is the inequality women have faced due to their relegation to life in the home, and their ongoing shouldering of a ‘double burden’ of housework. Article 41.2 facilitates a recognition of the disproportionate amount of work done by women in the home, and while it has had little effect in this regard, due to failures of Government and interpretation, it is counterproductive to remove it. Recognition of the work done by other genders in the home is also desirable, however, this does not require derecognising the work of women, as demonstrated by Murray J in DT v CT.^[28]

Finley is highly critical of the gendered nature of legal reasoning and language.^[29] In particular, the adoption of a ‘discrimination’ based approach to equality by the law, wherein the political and historic context of oppression and domination that makes up inequality is lost to a supposedly neutral ‘discrimination’ wherein equality is understood as equal treatment regardless of historic or ongoing oppression. Therefore, we understand all discrimination,‘no matter what its historical impetus and purpose, and no matter whether it contributes to or helps reduce domination and oppression, to be forbidden discrimination.’^[30] She is critical of the law’s tendency to neutralise, and to treat ignorance of historical context as neutrality. She is critical of the male perspective which law and legal reasoning take on, which is couched in terms of neutrality. She also criticises the understanding of work that labour law adopts, as merely work done outside the home.

The amendments ‘neutralise’ the Irish constitution and blind the document to historic and ongoing realities of oppression. This means that future beneficial treatment towards women to address oppression is less constitutionally justifiable, as the constitution takes on a gender-neutral stance. Finley’s criticism of the male perspective in legal reasoning is not addressed or solved by neutralising the provision: the male perspective is as present as ever, with the law seeking to insert neutrality to historic oppression as the solution to said oppression. While the current provision was reflective of sexist attitudes in Irish society, it can be reinterpreted, such as along the lines of Denham J’s interpretation, to subvert this, and instead be read as recognition of women, and the inequality they face. For instance, it could be used to reinterpret the meaning of labour, to take account of the work disproportionately done by women, which does not fall within labour law.^[31]

Scales’ approach is similar,^[32] arguing for adjudicating equality not through ‘discrimination’ but based on discerning between occasions of respect and occasions of oppression in treatment, allowing for differing treatment in positive situations. She borrows from MacKinnon, who argued that the test should be whether a policy contributes to the oppression of a class of people based on gender status.^[33] Scales, in answering the objection that this approach could reinforce harmful stereotypes, seeks to find a reliable approach to ‘generalisations which are largely true’.^[34] She states, ‘injustice does not flow directly from recognising differences; injustice results when those differences are transformed into social and economic deprivation’.^[35] She argues that disadvantage is self-replicating without intervention, and that therefore ‘beneficial classifications seem necessary to the ultimate undoing of stubborn stereotypes’.^[36]

Scale’s reasoning addresses the main criticism of Article 41.2, the perpetuation of harmful stereotypes. The stereotype of women working in the home more than men is true: it is an underlying inequality that contributes to social and economic deprivation, and the best way to address this is not to ignore or write from history the deprivation, but to acknowledge it legally, and implement beneficial classification. In this instance, the provision of financial assistance to those negatively affected by the historic and ongoing discrimination and stereotyping.^[37] In the context of Article 41.2, this might be a constitutional entitlement to free/subsidised childcare facilities in the workplace for women, greater maternity leave entitlements or reallocation of rewards in the workplace. As Scales states, ‘this redistribution of historical burdens and benefits may seem a sweeping remedy, but it is the only one which addresses the reality.’^[38] Writing out the history of sexism from our constitution does nothing to address inequality, but constitutionalising a recognition of the unequal burden which women shoulder allows for the provision of assistance to women that addresses the reality of discrimination and sexism. The amendments in their current form risk regressing the constitutional position and make programs like these subject to challenges based on discrimination against men, removing a potential constitutional defence for such schemes under 41.2. This is not a hypothetical result of 41.2, as noted above, the case law has borne out such an effect.^[39] The failure to include a specific gender equality provision, as noted above, also makes such schemes less constitutionally defensible.

This amendment removes the capacity of the Article, as it stands, to promote social change and equality: while 41.2 is currently a ‘dead letter’, there is potential to reinterpret it considering modern values and diverging case law, to promote true equality. An amendment that removes the normativity in Article 41.2 would also be preferable, replacing the ‘life of woman in the home’ with something like the ‘unequal burden of work in the home shouldered by women’, justiciability could also be improved, for instance, by replacing ‘endeavour’ with ‘guarantee’. Instead, the government has eschewed this, along with the advice of the citizens’ assembly, and proposed a counterproductive amendment.

 

Conclusion

Article 41.2 has a complicated and problematic history, both in drafting and in its interpretation by the courts, however, there is a more positive interpretation of the provision available, which has been neglected in favour of amendment. The proposed amendments to Article 41.2 are problematic: they obfuscate underlying oppression, adopt a ‘neutral’ and ahistorical stance to an issue that demands historical perspective, and undermine schemes that could address inequality. Reinterpreting the existing provision in line with modern values and substantive equality, is preferable to the proposed changes. Amending Article 41.2 in a different manner, to promote justiciability and substantive equality, would be the best outcome for the provision.

 

^[1] Laura Cahillane, ‘Revisiting Article 41.2’ DULJ 2017 40(2) 107

^[2] Dáil Deb 11 May 1937, vol 67, col 677.

^[3] Laura Cahillane, ‘Revisiting Article 41.2’ DULJ 2017 40(2) 107, 8.

^[4] Dáil deb 2 June 1937, vol 67, col 1596.

^[5] [1992] 2 IR 77

^[6] Laura Cahillane, ‘Revisiting Article 41.2’ DULJ 2017 40(2) 107, 11.

^[7] [2001] 2 IR 545

^[8] ibid 665.

^[9] [2002] IESC 68.

^[10] Laura Cahillane, ‘Revisiting Article 41.2’ DULJ 2017 40(2) 107,13.

^[11] (HC, 26 July 1984)

^[12] [1993] IR 339, [1998] 4IR 321.

^[13] Deputy Roderic O’Gorman described the provision in these terms when introducing the amendments in the Dáil; Dáil deb 14 December 2023, vol 1047, col 879.

^[14] Irish Human Rights and Equality Commission, ‘Policy Statement on Article 41.2 of the Constitution of Ireland’ (2018)

^[15] Convention on the Constitution, Second report of the Convention on the Constitution, (2013) 11.

^[16] Yvonne Scannell, ‘The Constitution and the Role of Women’ in Brian Farrell (ed), De Valera’s Constitution and Ours (Gill and MacMillan 1988)

^[17] Report of the Citizens’ Assembly on Gender Equality (2021)

^[18] Joint Committee on Gender Equality, Unfinished Democracy: Achieving Gender Equality (Final Report, December 2022)

^[19]  Government Press Release, ‘Government Approves Proposals for Referendums on Family and Care’< https://www.gov.ie/en/press-release/c9193-government-approves-proposals-for-referendums-on-family-and-care/# > accessed 11^th December 2023.

^[20] Report of the Citizens’ Assembly on Gender Equality (2021) 53.

^[21] Jack Horgan-Jones, Mary Caroilan and Pat Leahy, ‘Civil society groups to “consider” approach to referendums over wording on care’ (The Irish Times 6 December 2023) < https://www.irishtimes.com/politics/2023/12/06/civil-society-groups-to-consider-approach-to-referendums-over-wording-on-care/ > accessed 23 December 2023.

^[22] Conor O’Mahony, ‘Referendum will just replace a sexist dead letter with a gender-neutral dead letter’ (The Irish Times 6 December 2023) < https://www.irishtimes.com/opinion/2023/12/06/governments-big-idea-is-to-replace-a-sexist-dead-letter-with-a-gender-neutral-dead-letter/ > accessed 23 December 2023.

^[23] Joint Committee on Gender Equality, Unfinished Democracy: Achieving Gender Equality (Final Report, December 2022)

^[24] Shawn Pogatchnik, ‘Ireland to vote on valuing women outside “the home”’ (Politico December 5 2023) < https://www.politico.eu/article/referendum-ireland-to-vote-on-valuing-women-outside-the-home/ > accessed 23 December 2023.

^[25] Convention on the Constitution, Second report of the Convention on the Constitution, (2013) 6.

^[26] Ngaire Naffine, ‘Possession: Erotic Love in the Law of Rape’ 57 Mod. L. Rev. 10 1994

^[27] Economic Social and Research Institute ‘Caring and Unpaid Work in Ireland’ (2019)

^[28] [2002] IESC 68.

^[29] Lucinda M. Finley, 'Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning' (1989) 64 Notre Dame L Rev 886

^[30] ibid, 891.

^[31] Judy Fudge, ‘Feminist Reflections on the Scope of Labour Law: Domestic Work, Social Reproduction and Jurisdiction’ (2014) Feminist Legal Studies, 22.

^[32] Ann C. Scales, 'The Emergence of Feminist Jurisprudence: An Essay' (1986) 95 Yale LJ 1373

^[33] Catharine A. MacKinnon, ‘Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence’ (1983) Summer Vol. No.4,

^[34] Ann C. Scales, 'The Emergence of Feminist Jurisprudence: An Essay' (1986) 95 Yale LJ 1373

^[35] ibid, 1396.

^[36] ibid, 1396.

^[37] Scales also suggests this in her work in the context of employment.

^[38] Ann C. Scales, 'The Emergence of Feminist Jurisprudence: An Essay' (1986) 95 Yale LJ 1373

^[39] Dennehy v Minister for Social Welfare (HC, 26 July 1984); Lowth v Minister for Social Welfare [1993] IR 339, [1998] 4IR 321.

 

Case Note Suggestions

Irish Constitutional Law

Law of Torts

Evidence and Criminal Law

Historical Law

Intellectual Property Law