The Defamation Bill passed through both houses of the Oireachtas this week, a decade after a review of the previous legislation was announced.
The legislation was passed by the Dáil last July and by the Seanad on January 20th. It returned to the Dáil on Wednesday following a small number of Seanad amendments.
These amendments ultimately passed by 77 votes to 66.
The legislation represents the most significant change to defamation law in Ireland since 2009 and has been broadly welcomed by media organisations.
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Key reforms include the abolition of juries in defamation cases and the provision of protections for media outlets against “strategic lawsuits against public participation”. Slapps, as they are commonly known in an acronym, are typically instigated by rich or powerful people and designed to intimidate journalists and prevent certain stories from being published.
Defamation is deemed to have occurred when a published statement undermines the reputation of an individual who is reasonably identifiable. A statement is not defamatory if it is true or substantially true.
Minister for Justice Jim O’Callaghan said the Bill “balances and safeguards the rights to freedom of expression with the protection of a person’s good name and reputation, and the right of access to justice”.
Speaking about Slapps in particular, O’Callaghan said they pose “a significant challenge to press freedom, and a danger to democracy itself”, given the negative impact they have on the work of journalists and people involved in the protection of human rights.
Why did we need to reform our defamation laws?
For years, media organisations and press freedom groups have raised concerns about Irish defamation laws.
In 2016, amid mounting pressure, the then government announced a review of the Defamation Act 2009.
This review was not published until 2022. In the intervening years, a number of international bodies raised concerns about the Irish system.
In 2017, the European Court of Human Rights found that Irish defamation law was not compatible with the right to freedom of expression under Article 10 of the European Convention on Human Rights.
This ruling centred on a case taken to the ECtHR by Independent Newspapers, now Independent News and Media, publisher of the Herald newspaper.
In 2009, public relations consultant Monica Leech was awarded €1.25 million in a libel action she took over a series of articles published in the Herald. She was initially awarded €1.87 million, but this was reduced to €1.25 million following an appeal in the Supreme Court.
In the ECtHR case, Independent Newspapers successfully argued that the award had been excessive and violated its right to freedom of expression.
The court accepted that Leech had been libelled but found that the unpredictability of the Irish system, and the high levels of compensation awarded, had a chilling effect on media, and could hinder outlets from reporting on matters of legitimate public concern.
In 2020, Reporters Without Borders (RSF) was critical of the “extraordinarily high damages awarded by Irish courts” in defamation cases, saying this posed “a significant threat to press freedom”.
“The possibility of exorbitant damages, combined with the high costs of defending defamation suits, has resulted in a climate of self-censorship, in which prominent individuals known to be litigious become largely untouchable by the Irish media,” a statement noted at the time.
The review of the 2009 Act was finally published in March 2022, paving the way for the legislation which finally passed this week. Many of the proposals in the review are included in the new Bill.
What exactly is in the Bill?
Key reforms in the Defamation Bill include the removal of juries in High Court defamation cases, clearer protection for responsible public interest journalism, measures to encourage alternative dispute resolution, and safeguards to prevent Slapps.
The Department of Justice has now published the general scheme of further legislation which will extend this Bill’s anti-Slapp provisions to other civil and commercial proceedings.
The Defamation Bill also extends jurisdiction to the Circuit Court to make orders requiring the identification of anonymous posters of alleged defamatory material.
The legislation contains a provision to protect media organisations on occasions “where a responsible journalist may have made a mistake in one or two details”.
O’Callaghan introduced amendments to the Bill, based on the recommendation of Independent Senator Michael McDowell, to balance freedom of expression with the right to a good name.
The amendments clarify that as a defence to a defamation action, the defendant has to prove the publication was “fair in all of the circumstances of the case”, as a matter of public interest.
The legislation also includes a new defence for retailers subjected to defamation claims for challenging people on whether they have paid for items before leaving a shop.
Are people happy with the changes?
NewsBrands Ireland, the representative body for national print and digital news publishers, has welcomed the passage of the Bill. Chief executive Ann Marie Lenihan said the legislation “represents a landmark moment for press freedom”.
“At a time when journalism globally is under pressure from legal threats, political hostility, and economic strain, it is vital that our laws support the media’s role in holding power to account.”
Lenihan said the removal of juries in defamation cases “ends the era of ‘chilling effect’ awards and delivers a more proportionate system”.
While the changes have been broadly welcomed by media organisations, time will tell how the new judge-only system operates in practice.
McDowell was among those to argue for the retention of juries in defamation cases. During a debate in the Seanad last October, he said there could be a controversial case in the future where a judge is accused of being biased.
“There will be cases where the defendant will walk of out of the Four Courts or wherever and say that Ms Justice or Mr Justice so-and-so was totally biased and that they could see from the beginning of the whole case, from the judge’s demeanour, that he or she was biased, and that this is an unfair outcome.
“There will be cases of great significance where that kind of a charge could be easily made against a judge-only trial, whereas it simply would not stand up against a case decided by 12 jurors.”
The legislation will come into effect once signed by President Catherine Connolly.
