Ireland's defamation laws are edging closer to an overhaul following the long-awaited publication of the Defamation (Amendment) Bill 2024 (the Bill) on 2 August 2024. The Bill follows a lengthy review of the Defamation Act 2009, which commenced in November 2016 and culminated in the Report of the Review of the Defamation Act 2009 in March 2022, the Draft General Scheme of the Defamation (Amendment) Bill (the Scheme) in March 2023, and the Joint Committee on Justice’s Report on Pre-Legislative Scrutiny of the General Scheme of the Defamation (Amendment) Bill (the Joint Committee’s Report) in September 2023.
What does the Bill propose?
In summary, the Bill proposes:
Issuing claims
- The introduction of a serious harm threshold for corporate bodies, which will mean that a company claiming defamation will be obliged to demonstrate that the publication caused or is likely to cause serious harm to its reputation. “Serious harm” will require proof that the harm caused or is likely to cause the company “serious financial loss” (in line with the position in England and Wales).
- A series of new safeguards against defamation proceedings which fall within the definition of “abusive court proceedings against public participation” (otherwise known as “strategic lawsuits against public participation” (SLAPPs)). The Bill broadly mirrors the definition applied to all civil proceedings in the Anti-SLAPP Directive of the EU, but limits its application to defamation claims and removes the requirement for the litigation to have cross-border implications. It also applies only some of the Directive’s protective measures, including: the accelerated treatment of proceedings and any applications to the Court, strike out mechanisms for proceedings which are “manifestly unfounded”, and the ability to obtain a declaration identifying the litigation as a SLAPP.
- A requirement that solicitors advise their clients of the availability and implications of making a complaint to the Press Council or availing of Coimisiún na Meán’s Right of Reply Scheme before issuing proceedings. In addition, solicitors must file a statutory declaration evidencing that they have complied with this requirement. The Court may also invite the parties to consider engaging with one of those procedures and adjourn or otherwise manage the litigation to allow it to conclude.
Defending claims
- A new “live broadcast defence” which will allow broadcasters to plead that they took reasonable and prudent precautions to prevent the publication of a defamatory statement by a relevant person (such as a guest) during live transmission.
- The expansion of the scope of the defence of absolute privilege so that it applies to reports of proceedings or decisions by a court established under the law of any state or place (as opposed to just the courts of Ireland or Northern Ireland).
- The expansion of the scope of the defence of qualified privilege to capture the existing common law defence available in cases of retail defamation. It provides that it is not defamatory, in certain circumstances, for a retailer to ask a person to produce a receipt or other evidence of payment or to make a statement to the effect that the method of payment is not capable of being accepted. An important factor here is that publication of the statement must not be excessive.
- A requirement that, unless the person to whom the defamatory statement refers requests otherwise, corrections and apologies forming part of an offer to make amends must be published with the same or similar prominence as the original defamatory statement.
- The ability for the plaintiff to pay a sum of money into court in settlement of the action (a lodgment) at any stage in the proceedings, rather than just at the point of filing a defence to the claim.
Determining claims
- The abolition of jury trials in defamation proceedings instituted after the date of implementation (meaning all defamation actions will be heard by a judge only). As we have argued previously, this proposal should lead to more predictable and consistent decisions, less delays in getting to trial, a much quicker trial process and, overall, less expense for all parties. This proposal is, however, already being met with considerable opposition.
- An amendment which will allow the Circuit Court to grant declaratory orders in circumstances where the respondent has no defence which is reasonably likely to succeed (as opposed to having no defence at all).
- An amendment which will allow the Circuit Court or the High Court to grant correction orders and orders prohibiting further publication at the same time as a declaratory order or an order dismissing the claim.
- A requirement that, unless the person to whom the defamatory statement refers requests otherwise, corrections published pursuant to a correction order must be published with the same or similar prominence as the original defamatory statement.
- Measures to provide that the Courts, in considering the making of a costs order, can consider any unreasonable failure or refusal by a party to consider the Press Council and Coimisiún na Meán dispute resolution schemes and the conduct of the parties following the making of an offer of amends. The Court can also take into account a declaration that the litigation in question constitutes a SLAPP.
- A requirement that any order or judgment made by the Circuit Court in the course of defamation proceedings that are found to constitute a SLAPP be published online as soon as possible.
What has been left out?
Notably, the Bill has not made provision for certain proposals which were initially set out in the Scheme and, to a lesser extent, the Joint Committee’s Report. For example, the Scheme proposed:
- a ‘Notice of Complaints’ process for unlawful defamatory content (which went further than the obligations set out in the Digital Services Act and has now, arguably, been overtaken by it)
- to grant the Circuit Court the jurisdiction to hear and determine applications for Norwich Pharmacal relief (which, as we have observed previously, have a more limited scope under Irish law than comparable jurisdictions)
- measures to address the perceived risk of “defamation tourism”
- to amend the defence of fair and reasonable publication on a matter of public interest (which does not appear to have been successfully pleaded before the Irish courts)
- to provide legislative guidance on the quantification of damages.
Some of these proposals may re-emerge for consideration during the Bill’s passage through the Oireachtas.
What’s next?
The fact that the government has taken the step of publishing the Bill while Dáil Éireann is in recess suggests that the long-awaited reforms have regained momentum and the proposed legislation may take priority when the next sitting commences on 18 September 2024. Substantive amendments are, however, expected during the Bill’s passage through the Oireachtas and progress may prove particularly slow if, as is increasingly expected, an election is called before the end of the year.
For further information on this topic please contact Kenan Furlong, Partner, Eva Morris, Senior Associate, Christina Moran, Senior Associate, Christina Heffernan, Solicitor, or any member of ALG’s Corporate Reputation and Defamation team.
With thanks to Sarah Guerin, Trainee Solicitor, for her assistance in preparing this update.
Date published: 8 August 2024
