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The Minister for Justice Helen McEntee received Cabinet approval to publish the Review of the Defamation Act 2009 (the Review) on 1 March 2022, and to prepare new defamation legislation.
The major proposals arising from the Review include:
- An end to juries in defamation cases.
- Clearer protection for responsible public interest journalism.
- Reducing legal costs, awards and delays.
- Measures to encourage prompt correction and apology where mistakes are made.
- Measures to make it easier to grant orders directing online service providers to disclose the identity of an anonymous poster of defamatory material.
Role of juries to be abolished
The Review recommends that defamation hearings should be heard by a judge sitting alone, without a jury, on the basis that juries can lead to excessive awards of damages, as evident in the recent Supreme Court decision of Padraig Higgins v Irish Aviation Authority [2000]. The jury in the High Court awarded €387,000 in favour of the plaintiff. This sum was subsequently reduced to €76,500 in the Court of Appeal, however on appeal to the Supreme Court, the award was increased to €202,500.
The majority judgment delivered by Mr Justice MacMenamin highlighted the lack of procedure in place providing guidance for juries to assist in determining damages in defamation. As such, Justice MacMenamin provided four categories or brackets to assist in determining quantum valuation:
- Moderate defamation - Awards of €0 to €50,000
- Medium defamation - Awards of €50,000 and €120,000
- Serious defamation - Awards of €125,000 and €199,000
- Top of Scale defamation - Awards over €200,000 but very seldom over €300,000.
The removal of juries is a welcome decision given that they have been removed from almost all other civil cases. It is hoped that this will bring an end to unpredictable and inflated awards.
Specific challenges raised by online defamation
Considering 13 years have passed since the enactment of the Defamation Act 2009 (the Act), there has been a significant development of online and digital communications.
Anonymous comments can be instantaneously circulated through these mediums and therefore, determining liability and establishing jurisdiction in online defamation cases is often complex. This poses additional challenges for defamation law that may require the development of new and specific legal mechanisms.
One of the recommended measures in the Review to prevent online defamation is the introduction of a statutory Notice of Complaint process. This allows an individual to notify an online publisher of defamatory content and request that it is either taken down, or the poster identified within a specific timeframe.
The Review also advises that Norwich Pharmacal Orders (NPOs) are made by both the High Court and Circuit Court. This is a noteworthy recommendation as this Order is currently only permitted within the High Court. Circuit Court Judges will now be able to issue an Order directing an intermediary service provider to disclose the identity of an ominous poster of defamatory material.
Clearer protection for journalism surrounding public interest
The Review notes that Section 26 of the Act already provides a defence of fair and reasonable publication on a matter of public interest.
Nonetheless, the Review provides additional protection to journalists by recommending that when a statement is made as a matter of public interest, the defendant has a defence if they reasonably believed that the publication was in the public interest and that they acted reasonably in the circumstances to verify the accuracy of the statement.
The purpose of these recommendations is to strike a balance between an individual's right to a good name, while also acknowledging the right to freedom of expression.
A number of other proposals in the Review include:
- Providing an expressive power for the court to dismiss defamation claims brought by plaintiffs that have not been progressed within two years.
- Encouraging proactive judicial case management of defamation claims.
- Addressing the perceived risk of international forum-shopping or ‘defamation tourism’ into Ireland.
- Amending the defence of ‘honest opinion’ to remove the condition that the person who published the opinion must prove that they ‘believed in the truth of’ that opinion.
- Recommending anti-SLAPP (Strategic Lawsuit Against Public Participation) mechanisms - preventing exaggerated claims made by powerful companies.
- Providing a statutory obligation for parties to a defamation dispute to consider mediation (as under the Online Safety and Media Regulation Bill 2022).
- Including participation by a party in alternative dispute resolution (ADR) processes among the factors.
Comment
The Review's recommendations represent welcome developments in defamation law in Ireland. These recommendations ultimately introduce quicker, more effective and more accessible mechanisms for resolving disputes of defamation.
The abolishment of juries minimises the prospect of artificially high awards of damages in defamation cases, which in turn should reduce the likelihood of appeal by defendants resulting in reduced legal costs for insurers and ultimately speedier resolution.
The Review encourages ADR and recommends prompt redress by way of mediation, rather than litigation, which will also come as a welcome reform for the insurance industry.
Minister McEntee has indicated that a new bill will be drawn up before the end of 2022. Therefore, it is considered that the earliest point at which the above recommendations will be enforced will be 2023.
Insurance and reinsurance
Ireland