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Speaking Truth to Power?

It is generally felt in the chattering classes (politicians and their friends and allies) that the delay to the formal start of the general election campaign was undesirable.

They might be right.

In defamation law, election campaigns represent the paradigm case for informing the public about matters they should know about; like the character of the opposition parties or candidates.

Outside the campaign, issues of malice and relevance arise; not so much in the campaign.

In addition, opponents of a candidate have a privilege for statements about the candidate for which, made bona fide, they are not answerable in the absence of malice. A privilege is a stronger defence than the defence of fair comment.

With the commencement of the campaign they can look to Crawford v Vance (1908) 2 IR 521 and read the remarks of Holmes LJ where he said “[in election campaigns]… acts are often described as bribery which are not only not indictable, but comparatively harmlessâ€?.

RTE recently featured a photograph of the Fianna Fail party tent at the Galway races as the icon of the alleged corruption and favouritism of and by that party. [Such few builders/developers, as are known to the writer, do not consider themselves as “privileged” by the tent opportunity].

The journalists may have been running ahead of themselves.

Accusations of that kind should have awaited the commencement of the campaign (unless the journalist is fortunate to have the incriminating evidence in his/her possession).

Whether privilege arises prior to an election campaign is, legally, an unsettled question.

NOTE; Fianna Fail, although an organisation, could [unwisely] sue for defamation; hence the use of “allegedâ€?, in association with the remarks above about the Fianna Fail tent.

NOTE: Party political spin doctors may note the excellent defence presented by Holmes LJ; appropriately construed, he could be read as condoning bribery and corruption when occurring in political life, as opposed to commercial life, say.