by David Phelan August-28-2024 in Commercial & Business, Defamation

The prospect of some long-awaited reform of defamation law moves closer, with the publication of the Defamation (Amendment) Bill 2024 (“the Bill”) on 2 August last.

The Bill follows a government report published in 2022 identifying the need for reform, and the draft General Scheme of the Defamation (Amendment) Bill.

The Bill, if passed, will amend existing provisions of the Defamation Act 2009 (the “2009 Act”), and introduce some notable changes to our existing defamation regime.

Abolition of Juries

Perhaps the key feature of the Bill is that High Court defamation actions will no longer be tried before a jury, but by judge alone.  Any defamation claims initiated after the passing of the Act will be heard by a judge alone.

This should have the benefit of reducing legal costs, preventing excessive or disproportionate damages awards, allowing for consistency in verdicts and reasoned judgments.

Anti-SLAPP Provisions

Part 4A of the Bill includes provisions intended to prevent or discourage Strategic Lawsuits Against Public Participation (“SLAPP”).  SLAPP proceedings are recognised as a threat to press freedom and gives the Court power to strike out SLAPP proceedings early if the Court is satisfied that the proceedings are “manifestly unfounded”, and the power to order a plaintiff in SLAPP proceedings to pay the defendant’s legal costs on a “legal practitioner and client” basis, amongst other members. 

Alternative Dispute Resolution

The Bill seeks to amply the role of ADR in defamation claims, and includes an obligation on solicitors to inform their clients, prior to the initiation of proceedings, of the right to make a complaint to the Press Council.  The Court will be given power to consider a party’s participation, or refusal to participate, in alternative dispute resolution when considering the award of costs of proceedings.

Defence for Live Broadcasting

For TV and radio programmes broadcast by licenced and regulated broadcasters, the broadcaster will not be liable for a defamatory comment made contributor during a live programme, provided the broadcaster took reasonable and prudent precautions to prevent this.  The defence does not apply to the person who makes the statement. 

New Statutory Defence for “Retail Defamation” Claims

Provides for a new, specific form of the established defence of qualified privilege.  It will be a defence to show that the disputed statement involved:

  • asking whether a person had paid for goods or services,
  • asking whether the person had obtained a service,
  • asking whether a person has in their possession goods, or a receipt for goods or services, or
  • stating that a means of payment offered is unable to be accepted (for example, that a bank note appears not to be legal tender).

The statement must have been made by a person who had a duty or interest in making it, and the person making the statement must not have acted with malice or publish the statement excessively in the circumstances (for example, shouting across the store, rather than making the enquiry discreetly).

 

Further Measures

The Department of Justice has identified a number of further measures which are to be introduced by amendment during the passage of the Bill through the legislative process, including:

  • Reforms to the defence of “fair and reasonable publication”, to clarify and simplify the current defence
  • Giving of power to the Court to award damages to a defendant who is a person targeted by SLAPP proceedings
  • The introduction of a statutory power for both the Circuit Court and the High Court to make “Norwich Pharmacal” orders, where an individual service provider is directed by the Court to disclose the identity of an anonymous poster. Currently, those orders can only be made by the High Court. 

 

Conclusion

The need for reform of our defamation legislation has long been identified.  The publication of the Bill is a welcome step towards that reform and we will update on this area as the Bill progresses through the legislative process.

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About the Author

David Phelan
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.