Minister McEntee and Minister Browne publish Defamation Bill

• Robust, fair and proportionate legislation will meet the challenges of an increasingly complex media landscape

• Abolition of juries in High Court defamation actions will reduce disproportionate and unpredictable awards

• Protections against SLAPP proceedings, which are recognised internationally as a threat to press freedom and democracy

• Range of provisions to support agreed resolution of defamation cases and reduce high legal costs

Minister for Justice Helen McEntee TD and Minister of State for Law Reform James Browne TD have received Government approval to publish the Defamation (Amendment) Bill 2024.

The full text of the Bill will be published on the website of the Houses of the Oireachtas next week.

The Bill provides for a range of reforms to address concerns raised by stakeholders during the public consultation on review of the Defamation Act 2009. Its publication marks significant progress on the Programme for Government commitment to review and reform our defamation laws.

Minister McEntee said:

The main purposes of the Bill are to:

• tackle disproportionate awards, and support more consistent, proportionate and predictable redress in defamation cases, including the abolition of juries in High Court defamation cases;

• support easier access to justice for individuals whose reputations are unfairly attacked;

• provide that, if a person is defamed, the correction must be the same or similar prominence to the defamatory publication;

• provide enhanced and clearer protection for responsible public interest journalism;

• reduce legal costs and delays for all parties, by supporting the use of alternative dispute resolution (ADR) and by measures to encourage prompt correction and apology, where mistakes are made; and

• deter abusive use of unfounded defamation proceedings, particularly SLAPPs

Several further key reforms are being finalised, which Minister McEntee will bring as Government amendments during the Bill’s passage through the Oireachtas.

These include the clearer and simpler defence of fair and reasonable publication in the public interest, which is particularly important to protect responsible public interest journalism.

They also include a statutory power for the Circuit Court to issue a ‘Norwich Pharmacal’ order, directing a digital services provider to identify an anonymous poster of defamatory online material – this will significantly reduce the legal costs for a person subjected to such comments. We are also working on a power for the courts to award damages for harm suffered by a person targeted by SLAPP proceedings.

Welcoming publication of the Bill, Minister Browne added:

The Bill also includes a new defence for broadcasters against liability for a defamatory statement made by a contributor during a live broadcast, if the broadcaster can show that it took reasonable and prudent precautions before and during the broadcast to prevent this.

The Bill will introduce a new statutory defence in ‘retail defamation’ cases, which is in response to stakeholder concerns about a large recent increase in claims of verbal defamation made against retail businesses, particularly against SMEs.

The Circuit Court has repeatedly held that it is not defamatory, for example, simply to ask a person who walks past the checkout to leave the shop with goods, to produce a receipt for them; or to explain that a banknote cannot be accepted in payment, if it does not seem to be legal tender. Nevertheless, defamation claims in such cases are now generating significant extra legal and insurance costs for these businesses.

The Bill addresses the problem by providing a new statutory defence for the retailer, which builds on the defence of qualified privilege. The new defence does not apply if the retailer is acting with malice, or if the retailer’s comments are publicised excessively, when discretion could have been used.

The Bill gives effect to the General Scheme for a Defamation Amendment Bill which was approved and published by Government on 28th March 2023. It responds to the Report of the Review of the Defamation Act, published in March 2022, which was informed by an extensive public consultation.

The Bill also takes account of the pre legislative scrutiny report on the General Scheme, published by the Oireachtas Joint Committee on Justice on 27 th September 2023.

ENDS../

Notes for Editors

Abolition of juries

• Juries to be abolished in High Court defamation cases

• Already abolished in Circuit Court defamation cases since 2009, and in vast majority of civil proceedings (other than defamation) since 1988

• This reform is expected to

- reduce the incidence of excessive or disproportionate awards of damages,

- significantly reduce legal costs, and reduce delays,

- reduce the length of hearings in defamation cases, and

- reduce unpredictability of outcomes.

• Also expected to ensure greater clarity on the law, and reduce the need for expensive appeals. (In this complex area of law, the fact that a jury cannot give reasons for their decision can cause great uncertainty for stakeholders about its implications for other cases.)

Protective measures against SLAPPs:

• New chapter inserted in Defamation Act on anti-SLAPP protective measures

• SLAPPs defined as in EU Anti-SLAPPs Directive (EU 2024/1069): defamation proceedings which relate to a person’s engagement in public participation on a matter of public interest, are unfounded and abusive, and are brought with the main purpose of preventing, restricting or penalising public participation

• Defendant to notify court, where s/he considers defamation proceedings issued against them are a SLAPP

• Court has power to strike out such proceedings early if satisfied they are ‘manifestly unfounded’; for other redress the requirement is ‘unfounded and abusive’

• Accelerated court determination of defendant’s applications in potential SLAPP proceedings: court to act ‘as expeditiously as possible, consistent with the administration of justice’

• Defendant can apply for court to direct that plaintiff provides security for defendant’s legal costs

• Defendant can request court to find that the proceedings are a SLAPP (unfounded and abusive) and to issue a declaration to that effect

• Court to take account of such declaration in awarding costs, and has power to order plaintiff in the SLAPP proceedings to pay defendant’s legal costs on a ‘legal practitioner and client’ basis

• Non-exhaustive factors in deciding whether the proceedings are ‘abusive’ include: intimidation, harassment or threats made by the plaintiff; use in bad faith of procedural tactics to lengthen the proceedings; multiplicity of proceedings; excessive, disproportionate or unreasonable claims.

New statutory defence for ‘retail defamation’ cases

• Not a ‘serious harm’ test, but a new specific form of the established defence of qualified privilege

• It will be a defence to show that the disputed statement consisted of:

- asking whether a person had paid for goods or services,

- asking whether the person had obtained a service

- asking whether a person has in their possession goods, or a receipt for goods or services, or

- stating that a means of payment offered is unable to be accepted (e.g. credit card blocked, bank note does not appear to be legal tender).

• The statement must have been made by a person who had a duty or interest in making it

• The defence is lost if that person acts with an improper motive (‘malice’), or publishes the statement excessively in the circumstances (e.g. shouting across a crowded venue, when the enquiry could have been made discreetly)

Defence for live broadcasting

• Applies to licensed and regulated broadcasters, regarding TV and radio programmes

• Broadcaster not liable for a defamatory comment made by a contributor or bystander during a live programme, if it took reasonable and prudent precautions to prevent this

• The new defence does not apply to the person who made the statement.

Reform of ‘offer of amends’ process for early settlement of proceedings

• Existing procedure supporting agreed early settlement, where the defendant admits liability

• Compensation to be decided by judge, if the parties cannot agree (currently, decided by jury in that situation)

• Apology or correction offered by defendant must be published with ‘same or similar’ prominence to the defamatory statement, unless the person defamed requests otherwise.

Other changes include:

• Measures, on similar lines to those in the Mediation Act 2017, to encourage use of other forms of voluntary ADR in defamation cases where appropriate

• Apologies or corrections to be published with ‘same or similar’ prominence to the original statement

• A company wishing to sue for defamation of its corporate reputation must show that it sustained serious harm (serious actual or likely financial loss, if it trades for profit)

• Clarification that those eligible for membership of Press Council include owners of periodicals that are only published online or electronically, as well as of periodicals published in print

Further measures to be introduced by amendment during passage of Bill include:

Reformed defence of fair and reasonable publication (‘publication in the public interest’):

To clarify and simplify the current statutory defence, drawing on recent legal developments in the UK and in the caselaw of the European Court of Human Rights

Power of court to award damages to SLAPP defendant:

Where a court is satisfied that defamation proceedings taken against public participation are a SLAPP, this amendment would empower the court to award damages to the person targeted by the SLAPP, if it considers appropriate, to compensate for harm suffered as a result of the proceedings.

Norwich Pharmacal order:

To introduce a statutory power for the High Court and the Circuit Court to make a ‘Norwich Pharmacal’ order (one directing a digital services provider to disclose the identity of an anonymous poster of defamatory material). Currently these orders can only be made by the High Court. Availability in Circuit Court will significantly reduce the legal costs, and make it easier to obtain a court order for defamatory material to be taken down.