by David Phelan February-28-2022 in Litigation & Dispute Resolution, Media Law, Commercial & Business
A long-awaited Government report on reform to Ireland’s defamation laws is being put to Cabinet by the Minister for Justice, according to recent media reports.
Our existing legislation - the Defamation Act, 2009 - came into force on 1 January 2010, and Section 5 provided that it should be reviewed by Government within 5 years of coming in to force.
The review started later than planned, but a Report based on the review has now been issued to Cabinet. Media reports suggest that the report includes a number of interesting and significant recommendations.
The abolition of juries in High Court defamation cases
At present, unlike many other High Court civil hearings, defamation cases are heard by a Judge sitting with a jury.
The new Report recommends that High Court defamation cases be heard by Judge alone, with the Judge deciding the amount of any damages which should be awarded, as well as whether a defamation has occurred. The report states that a number of positive effects would follow from this, including reducing the cost and length of court hearings, and reducing the number of excessive or disproportionate awards of damages.
Avoidance of perceived international forum-shopping
The Report recommends that a legislative requirement be introduced requiring that the Court in a defamation claim be satisfied that Ireland is “clearly the most appropriate place” for the action to be brought. This arises from a concern that Ireland’s defamation laws, more favourable to plaintiffs than many other countries, give rise to “defamation tourism” into Ireland.
Introduction of a requirement for “serious harm” in certain cases
During the public consultation phase of the review, many interested parties submitted that a “serious harm” test should be introduced into Irish Law. This would be akin to the requirement introduced in 2013 in England, whereby a plaintiff in a defamation claim must be in a position to prove that the defamation occasioned “serious harm”.
The Report does not recommend the introduction of a general “serious harm” requirement, but does suggest consideration be given that serious harm must be proven in certain “transient defamation” claims. The Report clarifies these claims to include ones regarding a statement made in non-permanent form in the course of providing or refusing retail services.
Further, the Report recommends consideration that a body corporate not be entitled to take a claim for defamation unless it first shows that the allegedly defamatory statement has caused or is likely to cause serious harm.
Introduction of a new “anti-SLAPP” provision
“SLAPP” stands for Strategic Lawsuit against Public Participation. It refers to where a powerful entity strategically and abusively uses vexatious litigation to deter public interest journalism, where the purpose of the litigation is to silence or censor the public interest reporting. The Report recommends that a mechanism be introduced where a defendant can apply to the Court for summary dismissal of defamation proceedings that the defendant believes are a SLAPP.
Other technical changes
The Report recommends various other more technical changes to defamation law.
These include that a Court should have an express power to dismiss a defamation claim if it has not been progressed by the plaintiff within 2 years of the proceedings having been issued unless special circumstances justify the delay, and that a defendant should be allowed to make a lodgment in Court where the defendant had made an offer of amends but the parties cannot agree on the appropriate level of damages.
Furthermore, there is a recommendation that there be a statutory obligation that the parties in any defamation claim must consider mediation, and that solicitors representing clients in defamation cases must advise their clients of the availability of mediation and other alternative dispute resolution options (such as through the Press Council and Press Ombudsman).
Conclusion
Our existing defamation laws are considered amongst the most restrictive in Europe, and defamation litigation can often be costly and slow for both parties. For that reason, the changes which it seems are recommended are welcome.
The Report notes that certain other suggested changes are not being recommended, such as the wider “serious harm” test and a statutory cap on damages. There is a strong case for those changes too, particularly the wider “serious harm” test akin to English defamation law.
It remains to be seen what the political appetite for implementation of the Recommendations will be. The Report has been submitted to Cabinet and it is understood that the Minister will be seeking approval for publication of the Report and that a General Scheme of a Bill to amend the Defamation Act, 2019, be drafted.
We will update in relation to the progress of the Report, as information becomes available. For further information on any of these issues or to discuss, please contact David Phelan dphelan@hayes-solicitors.ie at Hayes solicitors LLP.
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About the Author
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David Phelan
David is Head of the Commercial & Business team at Hayes solicitors and advises a number of the firm’s major corporate clients. He advises on a wide range of corporate and commercial law issues. He has expertise in advising on general corporate and commercial matters, particularly in the manufacturing, retail, aviation, sports and motor sectors, and also frequently advises clients who operate in regulated areas.