General Scheme of the Defamation (Amendment) Bill 2023 – Amorys Solicitors
Since the introduction of the Defamation Act of 2009, there have been repeated calls for its reform and criticism that the Act fails to strike an appropriate balance between the right of someone to protect their name and character on the one hand, and the level of compensation that is paid to plaintiffs where a defamatory statement has been proven to have occurred on the other hand. A statutory review of the law on civil liability for defamation was conducted and resulted in the publication of a [i]“Report of the Review of the Defamation Act 2009” by Minister for Justice, Helen McEntee, on 1 March 2022.
This article will set out below some of the key proposed changes.
Abolition of juries
Lobbyists have long complained that jury awards in defamation cases have been far too high and that juries should be abolished. It is now proposed under the Bill that juries would no longer hear such cases and that any payment of damages would be wholly a matter for consideration by the judiciary.
Obligations to consider alternatives to court proceedings
Solicitors will be obliged to advise clients on alternative avenues of redress prior to to litigation, for example mediation, the role of the Press Council and of Coimisiún na Meán’s right of reply scheme. Coimisiún na Meán was established in 2022 and is Ireland’s new commission for regulating broadcasters and online media, replacing the Broadcasting Authority of Ireland.
Serious harm test
The Bill proposes that a body corporate may bring a defamation action where they claim a defamatory statement has been made. In the case of a body corporate, a statement will not be deemed defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the body corporate in the eyes of reasonable members of society.
Social media and other online platform providers
Where defamatory material is posted anonymously on a hosting platform or on social media, the intermediary concerned will possess identifying material about the anonymous poster who is its account holder, but will not provide such information in the absence of a court order.
Under the proposed Bill, if enacted, the High Court or Circuit Court will, be granted the power to make Norwich Pharmacal Orders. These orders are a type of remedial order delivered by the Court which compels a respondent to disclose information of both wrongdoings and wrongdoers. The purpose of such an order is to help identify a defendant so that legal action may be brought against them. These orders may direct online service providers to disclose the identity of an anonymous poster of allegedly defamatory material. The Bill envisages that the making of a Norwich Pharmacal Order available in the Circuit Court should reduce the costs involved for all parties and ensure that such orders are more accessible in practice.
If a person is defamed, it is proposed that the correction must be published with equal prominence to the defamatory publication.
Choice of jurisdiction
Ireland has long been deemed a destination for “defamation tourism” and this Bill will change this.
It is proposed that a court will not have jurisdiction to hear and determine an action against a person who is not domiciled in the State, in another Member State, or in a state which is for the time being a contracting party to the Lugano Convention, unless the court is satisfied that Ireland is the appropriate place for the action to be brought.
The Bill seeks to strengthen the protection afforded to broadcasters by amending section 27 of the 2009 Act, and will seek to ensure that a broadcaster will not be made liable for statements made during a live broadcast by a person over whom the broadcaster has no effective control, this is provided that the broadcaster takes reasonable precautions in advance of the broadcast, and reasonable care during the broadcast, to prevent the making of a defamatory statement, and, where such a statement has been made, to minimise the impact of any such statement.
Dismissal/Discontinuance of cases
Stagnant defamation claims result in some defendants having to bear ongoing costs and uncertainty over proceedings for several years after legal proceedings have commenced.
This Bill proposes that where no action has been taken by the plaintiff within 2 years of the initiation of defamation proceedings, the proceedings shall be dismissed/discontinued on notice to the plaintiff for want of prosecution. If a court decides that a case should not be dismissed/discontinued in the interests of justice, the court shall specify a time limit within which the plaintiff shall take the necessary action to enable the case to proceed.
It is intended that a new part, entitled “Measures against the abusive litigation to restrict public participation” will be inserted into the Defamation Act 2009 to deal with Strategic Lawsuit Against Public Participation (SLAPPs). The Bill refers to these as the strategic and abusive use of vexatious litigation, by a powerful entity or individual, to weaken and deter public interest discussion.
Where proceedings are brought by a plaintiff, in relation to public participation by a defendant, the defendant may apply to the court on the full hearing of the proceedings for a declaration that the proceedings constitute a strategic lawsuit against public participation and seek dismissal of the proceedings, among other remedies.
The Bill will now undergo pre-legislative scrutiny at the Joint Oireachtas Committee on Justice. It is hoped that a full Bill will be put before the Oireachtas by the end of this year.
The changes proposed in this Bill will have profound implications on the practice of defamation law in this jurisdiction if enacted.
Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice.
This article contains general information based on Irish law and does not constitute legal advice nor is it intended to provide a comprehensive or detailed statement of the law.
Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Defamation (Amendment) Bill 2023”, please contact Mike Collum, Solicitor, Amorys Solicitors firstname.lastname@example.org, telephone 01 213 5940 or your usual contact at Amorys on our email address at email@example.com.