INSIGHTS | LITIGATION & DISPUTE RESOLUTION | BY CILLIAN SIMPSON
The law of Defamation in Ireland is currently governed by Article 40 of the Constitution, common law and by the Defamation Act 2009 (the “2009 Act”). Article 40 of the Constitution states that the Government shall endeavor to vindicate “the life, person, good name and property rights of every citizen”. In a bid to put defamation on a more robust statutory footing in Ireland, the Defamation Act 2009 (the “2009 Act”) was enacted. Under the 2009 Act, Defamation became a statutory tort and is defined in Section 6 of the 2009 Act as;
“the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person) and defamation shall be construed accordingly.”
In the Spring of 2023, the Government proposed a significant overhaul of the Defamation laws in Ireland. The proposals were advanced on foot of the Department of Justice’s Report of the Review of the Defamation Act 2009 (the “Report”). The Report which was published in 2022 recommended a number of reforms to the 2009 Act. The proposed reforms under the General Scheme of the Defamation (Amendment) Bill 2023 (the “Bill”) would seek to modernise the Defamation legislation in order to address shortcomings of the 2009 Act together with societal shifts in recent years.
In September 2023, the Joint Committee on Justice (the “Joint Committee”) published its report on Pre-Legislative Scrutiny of the General Scheme of the Defamation (Amendment) Bill which addressed some of the key updates contained in the Bill but also some of the main concerns, which will be outlined below.
Key Updates
Abolition of Juries in Defamation Actions
Head 3 of the Bill proposes the abolition of juries for High Court Defamation actions. The accompanying explanatory note states there is a “general consensus amongst the submissions that the role of juries in High Court Defamation cases should be reformed”.
In contrast, the Joint Committee recommended an alternative avenue in which juries should be retained for the purpose of making findings in fact and or to make findings with regard to an award of damages but ultimately the measure of such an award would remain with the judge presiding over the action.
The “Serious Harm” Test
A second key proposal in the Bill is the proposed introduction of a Serious Harm Test. Heads 4 – 6 of the Bill introduces several different categories of Defamation actions. These Defamation categories cover actions concerning public authorities, corporate bodies and “transient” retail Defamation.
The Bill specifically states that the Test will not permit an action to be brought unless the complainant can demonstrate that they have or are likely to suffer serious harm as a result of an allegation. The Joint Committee has agreed with this recommendation and suggested that all Defamation cases should apply the serious harm test so as to align the Irish legislation with the UK legislation governing Defamation.
Strategic Lawsuits Against Public Participation (“SLAPPs”)
Under Head 23, the Bill proposes measures which will combat SLAPPs. A SLAPP is an action which intends to intimidate, censor or silence a critic by placing undue pressure through vexatious litigation, by a powerful entity or individual until that critic deserts their opposition or criticism.
Under the Bill, it is proposed that a Defendant in a Defamation action could apply to the court for summary dismissal of the proceedings on the basis that the proceedings are a SLAPP. If the Court determines that the proceedings constitute a SLAPP, the Plaintiff could be held liable for the Defendant’s costs in the proceedings and furthermore, the Court may award damages to the Defendant for any harm suffered as a result of the SLAPP.
Defences
The Bill proposes to reform and update the available defences in a Defamation action. Heads 12-14 outline that the defences include absolute privilege, qualified privilege and honest opinion. The Bill proposes to extend the definition of absolute privilege under Section 17 of the 2009 Act to cover fair and accurate reports of public proceedings in certain international Courts or from specified other states.
The Bill proposes to extend the scope of the qualified privilege under Part 1 and Part 2 of Schedule 1 of the 2009 Act, to protect fair and accurate reports of the press, documents covered by the Courts, governmental departments, local authorities, police commissioners of countries other than Ireland, and EU member states.
The Bill also proposes an amendment to Section 20 of the 2009 Act subsection 2(a). The current law requires that at the time a statement is published, the Defendant believed in the truth of the opinion or, where the Defendant was not the author of said opinion or statement that the Defendant believed it to be true. The Bill proposes to amend the requirement to “the defendant genuinely held the opinion or, believed that the author genuinely held the opinion”.
Conclusion
The Bill will be returned to the Oireachtas for further consideration before it becomes a published Bill and may be the subject of further debate. In this regard, the Oireachtas will need to strike a balance between the proposals contained within the Bill and some dissenting views and recommendations outlined by the Joint Committee in their Report.
A consideration in finalising the Bill may be the impending enactment of the Anti-SLAPPs Directive by the EU. If the Anti-SLAPPs Directive is enacted prior to the Bill being finalised, the Anti-SLAPPs measures proposed in the Bill, which represent some of the more significant and topical proposals, may be amended to align more closely with the EU’s Directive.
Defamation law is a rapidly evolving landscape which requires ongoing scrutiny from stakeholders and Government bodies to ensure that the law is not lagging behind societal shifts, particularly in the area of technology and telecommunications, or enacted legislation in other jurisdictions. Whilst the Bill has yet to be finalised and published, with the timeframe for same remaining somewhat unclear, it is apparent that the Government is actively seeking to keep legislative pace with this fast-moving area of law.
How we can help
If you have any queries or concerns, or would like to discuss the above in further detail, please feel free to contact Cillian Simpson in our Litigation & Dispute Resolution Department ([email protected] / +353 (0)1 440 8343).
This article is for general information purposes. Legal advice must be obtained for individual circumstances. Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.