Defamation Reform Moves One Step Closer

Minister for Justice, Simon Harris, received cabinet approval on 28 March 2023 for draft legislation to overhaul Ireland’s Defamation Laws.

Proposed amendments to legislation

In our Insight of 10 March 2022[1] we reviewed the “Report of the Review of the Defamation Act 2009”, which was published in March 2022 and discussed the key recommendations in the Review. Those key recommendations, which include most importantly the proposal to abolish juries in High Court Defamation cases, seem set to be included in a new Defamation Act subject to Oireachtas approval. Other important proposed changes include:

• Amending the defence of innocent publication to exempt a broadcaster from liability for a statement made by a contributor during a live broadcast.
• Amend the defence of ‘fair and reasonable comment in the public interest’ to allow for clearer protection for responsible public interest journalism.
• Allow the Circuit Court the power to grant “Norwich Pharmacal” Orders.
• Introduce a new ‘anti-SLAPP’ (Strategic Lawsuit Against Public Participation) mechanism.
• A statutory notice of complaint process to make it easier and more economical to request a publisher to takedown online defamatory content.

It also seems that the new Act will endeavour to discourage “libel tourism”, which refers to situations where plaintiffs from outside the Jurisdiction litigate in Ireland because it is seen as a more favourable jurisdiction for defamation claims. Lastly, it has been indicated that the Act will attempt to ensure that access to the Courts for defamation litigants is not confined to corporate litigants or individual litigants with significant resources.

The Minister stated that he intends to have a Defamation bill before the Oireachtas by the end of 2023.

Comment

In our insight of March 2022, we stated that 2023 was the earliest point by which the current law would change. It seems that Minister Harris is keen to stick as far as possible to the timetable that was outlined in early 2022, but it appears that it will be at least 2024 by the time the legislation is enacted. Notwithstanding that there has been some support in legal circles for retaining juries in High Court defamation cases in recent months, it now seems inevitable that juries will be abolished in the new Act. The general view seems to be that the up sides which a jury creates in a defamation case are far outweighed by the downsides.

While the attempt to reduce or eliminate “libel tourism” is presumably designed to free up court lists and to ensure that cases are concluded in a much more expedient time frame, the current delays in hearing High Court defamation cases are largely down to a lack of Judges hearing defamation cases as opposed to “libel tourism” clogging the Court lists. If juries are abolished as proposed, resulting amendments to High Court lists should result in more Judges being available to hear High Court Defamation cases. It remains to be seen whether the new Act will significantly reduce costs so that defamation is no longer regarded as a “rich man’s law”, but it is unlikely that the changes are going to significantly reduce legal costs.

[1] “Levelling of the defamation playing field” by Darryl Broderick and James Leahy 10 March 2022.