This article was co-authored by Rebecca Slevin, Trainee Solicitor, Dublin.
On 28 March 2023, Minister for Justice Simon Harris received cabinet approval for priority drafting of the General Scheme of Defamation (Amendment) Bill (the General Scheme) and referral of the General Scheme to the Joint Oireachtas Committee on Justice for pre-legislative scrutiny.
The Report of the Review of the Defamation Act 2009 (the Review) was published in March 2022 which provided several recommendations in order to advance the General Scheme.
Rights afforded to Irish citizens by the Constitution include both the right to a good name and the right to freedom of expression, therefore, any reform to defamation laws are significant. The General Scheme includes important proposed reforms of defamation laws which has been long overdue in Ireland and is a step closer to a new defamation act.
In May 2023, the Council of the Bar of Ireland (the Council) made submissions to the Joint Committee on Justice in relation to the General Scheme which contained observations which may be of assistance, given the nature of barristers’ work which include representing both plaintiffs and defendants in the area of defamation.
In this article, we discuss some of the proposals published in the General Scheme together with the submissions by the Council in response to such proposals.
Abolishing juries in High Court defamation actions
The General Scheme proposes an end to juries in defamation actions in the High Court as the majority of submissions received recommended that High Court defamation actions should be tried by a judge alone without a jury.
The position of the Council is that care should be taken with any decision to remove juries entirely from High Court actions without considering the following:
- The impact that steps to restrict the roles of juries in England and Wales have had in that jurisdiction; and
- Alternative methods to address the difficulties in relation to excessive and unpredictable awards of damages.
That being said, this is a very much welcomed proposal, particularly for defendants as it is hopeful that this will bring an end to high level, unpredictable and inflated awards by juries in defamation actions.
Jurisdiction of the Circuit Court to grant a Norwich Pharmacal Order
While the Circuit Court enjoys jurisdiction to hear and decide defamation actions, it does not have jurisdiction to grant a Norwich Pharmacal Order (a court order for the disclosure of material).
The General Scheme proposes changing this by directing an online service provider to disclose the identity of an anonymous publisher of defamatory material for the purpose of a plaintiff seeking redress in defamation actions.
In deciding whether or not to make an Order, it is proposed that a court will consider all circumstances of the case into account, including the balancing of the rights of the plaintiff and those of the anonymous publisher.
The aim of this noteworthy proposal is to reduce legal costs for both plaintiffs and defendants by giving them the opportunity to apply to a lower court for such an order that is traditionally expensive to seek in the High Court.
Reforming of the defence of “fair and reasonable publication” on a matter of public interest to make it simpler and clearer
The General Scheme proposes to amend Section 26 of the Defamation Act 2009 which provides a defence of fair and reasonable publication on a matter of public interest.
The aim at the time of introducing this Section was to introduce a significant defamation defence into Irish law, however, in reality, it has never been successfully pleaded in court.
The General Scheme proposes that it is shall now be a defence for the defendant to prove that:
- The statement complained of was, or formed part of, a statement on a matter of public interest;
- The defendant reasonably believed that publishing the statement complained of was in the public interest; and
- The defendant conducted such enquiries and checks as it is reasonable to expect of a reasonable journalist, and made the decision to publish in accordance with the standards of responsible journalism.
It is without doubt that the amendment to Section 26 would afford clearer protections to journalists in publishing their work. That being said, the Council submits that the wording of this section only captures journalists and does not take into account non-media defendants and what they would have to demonstrate to escape liability.
The introduction of the Notice of Complaint mechanism for online intermediaries
The General Scheme proposes to introduce a statutory Notice of Complaint process. This will allow a complainant who believes that a defamatory statement about them has been published online to submit a Notice of Complaint to the intermediary service provider (ISP) requesting that the statement be taken down.
This is intended to set out in greater detail the mechanisms provided for in Article 16 of the Digital Services Regulation ((EU) 2022/2065).
This is a welcomed proposal as it seeks to promote early resolution without going down the litigation route by making it easier, quicker and cheaper for complainants to contact a publisher to taken down defamatory content.
Insertion of new anti -Strategic Lawsuits Against Public Participation (SLAPP) measures
The General Scheme describes SLAPPs as:
The General Scheme proposes to insert a new Part to tackle these abusive defamation actions. This will allow a complainant to apply to court for summary dismissal of defamation proceedings that they believe are a SLAPP.
The Council describes this insertion as a “far-reaching proposal”. While supportive of this new measure, the Council has warned that the wording relating to SLAPPs has the potential to have a much broader application, scope and effect than might be intended.
Overall, the General Scheme is a milestone in reforming defamation laws in Ireland and adopting similar provisions to other jurisdictions.
The Council describes the overall terms of the General Scheme as far-reaching in terms of the extent to which if it were to be enacted in its current form, it would involve a significant re-calibration in defamation laws in Ireland.
While it can be argued that the new proposals strengthen the position of defendants in defamation actions, plaintiffs will now hope to enjoy a quicker, less costly and more streamline system for pursuing defamation actions.
Minister Harris indicated that a full bill will be before the Oireachtas by the end of the year. Therefore, it is considered that the earliest point at which the above recommendations will be enforced will be in quarter four of 2023.
Related item: Ireland’s defamation reform - long overdue and welcomed