Oireachtas Joint Committee Report on Defamation Reform may raise eyebrows

The Houses of the Oireachtas Joint Committee on Justice recently (September 2023) produced a report on the General Scheme of the Defamation (Amendment) Bill. The committee made a number of eye-catching recommendations, some of which might be considered radical when contrasted with the Report of the Review of the Defamation Act 2009 [1] and the General Scheme of the Defamation (Amendment) Bill [2].

In this insight Darryl Broderick analyses some of the more eye-catching recommendations and tries to plot where defamation reform goes from here.

Key Recommendations

Abolition of juries

The committee recommended retaining juries to make findings of fact and to make an indicative finding of an appropriate level of damages but recommended that ultimately judges would be the final arbiter of the quantum of any award of damages. Since both the Report of the Review of the Defamation Act 2009 and the General Scheme of the Defamation (Amendment) Bill were published, there has been some eloquent argument made to retain juries in some shape or form. It is, however, difficult to see how the retention of juries in line with these recommendations will serve any party to defamation litigation particularly well. If juries are maintained it still invariably makes litigation involving juries more expensive, as jury trials tend to go on longer than non-jury trials as juries need to be selected, they need to be charged by the Judge and more time needs to be spent ensuring that juries understand the evidence put to them than if a judge heard the case alone. Some submissions were made to the committee that since juries were abolished in England and Wales defamation litigation has become more expensive there. If this is true then there may well be other reasons for that.

If juries make an indicative finding of an appropriate level damages but the judge is the ultimate arbiter, where does that leave the guidelines given by the Supreme Court in Higgins v Irish Aviation Authority [3] when the Supreme Court outlined non-binding ranges of damages that might be awarded depending on the seriousness of the defamation. The committee believed that the presence of the Higgins guidelines will address concerns regarding inconsistencies in awards by juries, but given the presence of the Higgins guidelines is there a need for juries to be involved in the quantum of cases at all? Having juries deal with any issues in defamation High Court cases creates uncertainty not only with what decision an individual jury will make in a particular case, but also generally as jury decisions do not create precedent as judges decisions would. If you had more certainty then you would likely have more settlements arising from a knowledge of what the court is likely to decide rather than settlements arising from the concern that nobody knows what a jury is going to do even when given guidance. If juries are generally abolished, Ireland could replicate the system in England and Wales whereby there is the ability for a plaintiff to apply for a jury trial and the court can decide whether or not to grant a jury trial. This seems to be rarely used in England and Wales but it would at least give some comfort to those supporters of jury defamation trials that they are not entirely abolished.

Management of jury lists

As a means of dealing with how jury lists can create a logjam for defamation cases in High Court lists, the committee recommended empanelling juries for more weeks within the court term and also recommended that judicial resources to deal with defamation cases be kept under review. The practicality of this is questionable. Certainly, calling people to jury duty and dealing with prospective jurors and jurors takes up court resources that would not be taken up if these cases were to be heard by a judge alone. Suggesting that one should empanel more juries to deal with the backlog in defamation cases is like saying one should appoint more judges to deal with court backlogs generally. It's just not that simple or straightforward.

Introduction of a "serious harm" test

This would bring Ireland into line with England and Wales. The review of the 2009 Act did not recommend a blanket serious harm test as the committee is now recommending. This would certainly be welcomed by media defendants. There has been some academic concern that deciding whether something has caused "serious harm" to a claimant adds another layer to defamation litigation but introduction of a blanket "serious harm" test is likely to deter claimants where negligible harm is done through some innocent mistake

Defamation should only be actionable on proof of special damage

This is by far the most radical recommendation made by the committee. It is unclear how this recommendation came about but one of the submissions mentioned that prior to the enactment of the Defamation Act 2009 the legislation distinguished between libel (the permanent form of defamation e.g. newspaper articles, radio broadcasts) and slander (spoken word or transient defamation). Prior to the enactment of the 2009 Act, a plaintiff could only succeed in a slander case, save for exceptional cases, where they could prove that they suffered actual damage e.g. loss of earnings, loss of profits or personal injury. If this was introduced it would likely reduce defamation cases to a fraction of the current levels. It is difficult to see that such a radical recommendation would make its way into the new Act. It is also curious how this sits with other recommendations e.g. if defamation is only actionable on proof of special damage there is no real need for serious harm test as special damage can only mean serious harm.

Extend the limitation period

Again, it isn't entirely clear how or why the committee came up with this recommendation. The general consensus seems to be that the current position is reasonable when it comes to taking action to protect one's reputation. Currently, defamation cases have to be brought within one year, but that period is capable of being extended to two years with the court's permission. If the recommendation was implemented the current one year limitation period would now instead be extended to two years, although it is not clear if the committee would recommend a possible extension to the recommended two year period with the court's permission. It would be unusual that a defamation claimant would lose the ability to sue for defamation under the current law without having an alternative remedy. There did not seem to be any appetite to change the limitation period up to now. Therefore, it seems unlikely that this recommendation would be implemented.

Where to next?

It seems extremely unlikely that we will see a new Defamation Act this year. There seems to be an appetite for reform in the current government so with a general election looming we should see some movement on this in 2024 although it remains to be seen how many of the recommendations made by the committee will make their way into the final Act particularly where they deviate from proposed recommendations to date.

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[1] Levelling the Defamation Playing Field
[2] Defamation Reform Moves One Step Closer
[3] [2022] IESC 13