On 28 March 2023, Minister for Justice, Simon Harris published the General Scheme of the Defamation (Amendment) Bill, following government approval for priority drafting of the Bill and referral of the General Scheme to the Joint Oireachtas Committee on Justice for pre-legislative scrutiny.
The Minister for Justice secured government agreement on 1 March 2022 to publish a major Report on the review of Irish defamation law and, on foot of that report, to begin preparation of a General Scheme of a Defamation (Amendment) Bill, which was published last week. The objective set for the Review from the outset was to ensure a balanced approach to the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice. The Report is the culmination of extensive work by the Department of Justice on a comprehensive review of the Defamation Act 2009 – including a wide-ranging public consultation, and a stakeholder symposium that brought together the media, academics, the legal profession, NGOs, and relevant State bodies.
The publication of the General Scheme is an important step in reforming Irish defamation laws to bring them in line with other jurisdictions. In particular, the General Scheme seeks to reduce the risk of unpredictable awards in the High Court; reduce legal costs; address online defamation and promote the use of alternative dispute resolution in defamation. The government has approved the priority drafting of the amending legislation, the Bill. The General Scheme will now be referred to the Joint Oireachtas Committee on Justice for pre-legislative scrutiny. It is intended the Bill will be brought before the Dáil by the end of the year.
See below a review of some of the key proposed amendments:
Strategic Lawsuit Against Public Participation (SLAPP)
SLAPP refers to the strategic and abusive use of vexatious litigation by a powerful company/organisation or individual to weaken, deter and prevent reporting and discussion on matters of public interest.
The General Scheme takes account of the European Commission’s launch in April 2022 of the legislative proposal for an EU anti-SLAPPs Directive, which is currently in negotiation before the Civil Justice Working Group of the European Council. The General Scheme proposes to provide an "anti-SLAPP" mechanism to allow a person to apply to court for summary dismissal of defamation proceedings that they believe are a SLAPP. The General Scheme also proposes to allow a defendant to apply for one of both of the following:
The General Scheme proposes to allow a court to make an order for security for costs in SLAPP proceedings.
The General Scheme purports to empower a court, where it is satisfied that the proceedings constitute a SLAPP, to order the plaintiff to bear all the defendant's costs and award damages to the defendant for harm suffered.
Abolition of High Court Jury Trials
The General Scheme proposes to remove juries from High Court defamation actions. In Circuit Court defamation actions, there are no jury hearings. The issue of juries was a key focus in the Statutory Review. By comparison, the UK Defamation Act 2013 legislates that a trial is to be ‘without a jury unless the court orders otherwise’.
The recommendation to abolish jury awards came about because of a tendency by juries to award substantial damages in some cases, running into seven figures. The case that attracted most attention was the decision of a High Court jury to award a former political adviser Monica Leech damages of €1.8 million after she was defamed in 2005 by Independent Newspapers. Irish jury were disproportionate compared to awards in serious personal injuries cases, or to awards for defamation in other jurisdictions.
Defence of "fair and reasonable publication on a matter of public interest"
The Explanatory Notes of the General Scheme acknowledge that although the defence of "fair and reasonable publication on a matter of public interest" was intended to provide an effective defence to defamation claims, it has little impact. The General Scheme proposes to simplify and clarify the requirements of the defence, while ensuring the protection of the right to freedom of expression and the recognition of the importance of reporting on matters of public interest.
Addressing the Challenges posed by Social Media
The General Scheme attempts to address challenges posed by an increasingly complex media landscape. It does so in a number of ways:
"Innocent publication" and website operators
The General Scheme proposes to extend the defence of "innocent publication" to website operators for statements posted by a person over whom the operator has no effective control. This is conditional on the operator having appropriate mechanisms in place to prevent the defamatory posting and on the basis that those mechanisms could not have prevented the posting. The wording will be developed in consultation with the Attorney General's office.
The extension is intended to capture owners or administrators of non-commercial community websites or social media accounts such as those established by parents of a local school, members of a local sports club or residents' associations.
Circuit Court jurisdiction to make ‘Norwich Pharmacal’ Order
The General Scheme creates a new statutory power for the Circuit Court, as well as the High Court, to make a ‘Norwich Pharmacal’ Order, making these identification orders less costly and more accessible. The order directs an intermediary service provider (ISP) to provide information identifying an anonymous owner and operator of an account, author/poster of a defamatory statement. This power allows for the removal of a defamatory statement and also to block access to the statement
Notice of Complaints process for online publications
The General Scheme proposes the introduction of a Notice of Complaints process, under which a person who believes that a defamatory statement about them has been published online may submit a notice to the intermediary service provider. The ISP must then forward any responses submitted by the complainant to the author of the statement within the prescribed time limits. The Notice of Complaints process aims to incentivise parties to make contact at an early stage by using the intermediary and to promote early resolution without recourse to litigation.
Link to the General Scheme of the Defamation (Amendment) Bill