On 28 March, the Department of Justice published the draft General Scheme of the Defamation (Amendment) Bill. The proposed Bill gives effect to recommendations of the Report of the Review of the Defamation Act 2009, published last year by the Minister for Justice.
The reforms set out in the General Scheme are stated by the Government to serve five core aims:-
- Ensuring quicker, more accessible takedown and correction - for a person who has been defamed;
- Providing stronger and clearer legal protection for responsible public interest journalism;
- Tackling defamation as a ‘rich man’s law’ (by reducing legal costs and delays for all litigants);
- Practical measures to improve protection against online defamation; and
- Combating abusive defamation cases (including innovative anti-SLAPP measures).
To that end, some of the specific changes to existing defamation law reflected in the Defamation (Amendment) Bill include:-
- The abolition of juries in High Court defamation actions.
- A requirement for a body corporate to show that publication of a statement has caused or is likely to cause serious harm to its reputation in the eyes of reasonable members of society, in order for that statement to be considered defamatory. In the case of a corporate body trading for profit, “serious harm” means that it has incurred, or is likely to incur, serious financial loss as a result of the publication of the statement.
- A requirement for a public authority to satisfy the Court that it is in public interest for it to bring a defamation claim, before it may bring that claim.
- Changes to the law relating to transient retail defamation. A person wishing to take such a claim must show that they have suffered, or are likely to suffer, serious harm as a result of the alleged defamation. Furthermore, the Bill states certain things which are not defamatory, for example for a retailer to ask a customer to produce a receipt at the point where the customer is leaving the retail premises.
- An obligation on solicitors to advise the client of alternatives to the issuing of Court proceedings prior to doing so, including giving details about the Press Council. The parties to a defamation claim must also consider mediation as a way of resolving the claim.
- Provisions for the Defendant in a defamation claim to make a tender to the Plaintiff, offering terms of settlement, which should then be taken into account by the Court in determining costs.
- Reforms to the defence of “fair and reasonable publication on a matter of public interest”, with the aim of making it simpler and clearer.
- Measures to address the issue of “libel tourism”.
- A new statutory notice of complaint process, to facilitate notification to digital publishers of online defamatory content and to request take down of that content.
- The requirement on publishers to publish a correction in the context of an offer to make amends with equal prominence to the original statement.
- An amendment to the Defamation Act 2009 to provide that a website operator is not liable for statements posted on the website by a person over whom the website operator has no effective control, provided that there were appropriate mechanisms in place to prevent defamatory postings and that such mechanisms could not have prevented the postings in question.
It is understood that Cabinet has agreed to refer the General Scheme of the Bill to the Oireachtas Justice Committee and that the Minister intends to have a full Bill before the Oireachtas by the end of this year.
We will keep you updated as developments arise.
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About the Author
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.