Looking Ahead: Defamation Reform in Ireland
Ireland is on the threshold of a significant overhaul of its defamation laws following the publication of the General Scheme of the Defamation (Amendment) Bill (the “General Scheme”) in March 2023 and the Report on Pre Legislative Scrutiny of the General Scheme prepared by the Houses of the Oireachtas Joint Committee on Justice (the “Committee”) in September 2023.
The General Scheme follows from the Report of the Review of the Defamation Act 2009 (the “Report”) which was published in March 2022 and which made a number of recommendations to reform defamation laws in Ireland.
We highlight the key reforms proposed in General Scheme and recommendations of the Committee which will inform the drafting of the Defamation (Amendment) Bill.
Following the recommendation of the Report, the General Scheme proposes the elimination of jury trials in High Court defamation cases. The Report anticipated that this reform would increase transparency and certainty and lead to a reduction in the incidence of excessive or disproportionate awards, legal costs, and the length of hearings. The Committee received divergent submissions in respect of jury trials and ultimately recommended that the proposed abolition of jury trials should be removed. The Committee recommended that juries be maintained in High Court defamation actions to make findings of fact and indicative findings of the appropriate levels of damages where appropriate, with judges making the final decision on the quantum of damages in each case.
Serious Harm Test
The General Scheme proposes the introduction of a “serious harm” test for defamation actions concerning bodies corporate, public authorities, and transient retail defamation. The narrow application of the serious harm test contrasts with the UK’s approach, which applies the test to all defamation actions.
The Committee has urged the government to evaluate the feasibility of extending this test to all cases and whether a requirement to demonstrate special damage should be introduced. The challenge in this jurisdiction is that defamation has always been actionable per se. This contrasts with England and Wales, where a “real and substantial tort” threshold was established, long before the “serious harm” test. The constitutional right to a good name may ultimately defeat the recommendation to consider a universal “serious harm” requirement in defamation actions.
Strategic Lawsuits Against Public Participation (“SLAPPs”)
Following on from the Report recommendation to introduce an anti-SLAPP mechanism, the General Scheme proposes measures to address defamation actions being used as SLAPPs. The Committee recommendations include judicial training to relation to SLAPPs, a broader definition of SLAPPs and alignment with the EU’s anti-SLAPP Directive once finalised.
Notice of Complaint Procedure
The General Scheme, in line with the Report recommendations, proposes the introduction of a Notice of Complaint process with a view to resolving complaints as early as possible without recourse to the courts. The Notice of Complaint procedure stems from Article 16 of the Digital Services Act though the proposed wording in the General Scheme has attracted criticism given the operational burden it placed on online platforms to assess potentially defamatory material. The Committee has recommended that the courts, rather than social media companies, should be responsible for assessing whether on-line material is potentially defamatory.
In order to address the perceived risk of forum-shopping identified in the Report, the General Scheme provides that a court will not have jurisdiction over defamation actions against persons not domiciled in Ireland, the EU, Switzerland, Norway, or Iceland, unless the court is satisfied that Ireland is clearly the most appropriate place in which to bring an action in respect of an allegedly defamatory statement. This approach follows the precedent set in English law.
Norwich Pharmacal Orders and Defamation
The General Scheme proposes allowing both the Circuit and High Court to make identification orders in cases of anonymous defamation.
Reformed Defences in Defamation Proceedings
The General Scheme proposes reform of the defences available in defamation actions, including absolute privilege, qualified privilege, and honest opinion, and introduces new provisions relating to offers to make amends and publications on matters of public interest.
Declaratory and Correction Orders
The General Scheme addressed inconsistencies in handling declaratory and correction orders in the 2009 Act, proposing changes to improve clarity and legal coherence. The General Scheme also implements Report recommendations in respect of correction orders including provision that a defendant must publish the correction with equal prominence to the original defamatory statement, unless the plaintiff requests otherwise. The General Scheme goes further than the Report and extends this to a correction arising from an offer of amends.
The General Scheme specifies additional factors, certain of which were recognised in recent judgments, to be considered in assessing general damages in defamation cases, including the relationship and status of the parties, the extent of intrusion, the effect on the plaintiff and the defendant’s conduct.
Statute of Limitations and Discoverability
While not addressed in the General Scheme, the Committee recommends that consideration be given to setting the statute of limitations for defamation actions at two years. The current one-year limit for defamation actions, extendable to two years, was criticised on various grounds in submissions to the Committee including that it is impractical in cases where defamation is not immediately apparent. The Committee recommends incorporating a ‘discoverability’ test for certain defamation actions which would enable individuals to bring actions within a reasonable period after becoming aware of the defamation. More generally, the Committee has recommended that the Statute of Limitations be paused for a set period where individuals engage in alternative dispute resolution to try to resolve a defamation action.
The Defamation (Amendment) Bill was listed for priority publication in the Government’s Legislation Programme for Autumn 2023, and it is widely anticipated.
We will continue to monitor developments and provide a further update once the Defamation (Amendment) Bill is published.
In the meantime, if you would like to discuss any of the matters covered in this update in more detail, please get in touch with any member of our Litigation, Dispute Resolution and Investigations Group