MediaAnalysis

Defamation Q&A: How will law change for those defamed or being sued?

Main provision of legislation will be the abolition of juries in High Court defamation actions

An amendment will mean people will no longer have to go to the High Court to get an order for a social media platform to reveal the identity of an anonymous user making defamatory remarks about them online. Photograph: Getty Images
Cormac McQuinn's picture
Cormac McQuinn
Thu Jul 25 2024 - 06:00

The Government has approved the publication of long-awaited legislation, the Defamation (Amendment) Bill, 2024, which is aimed at reforming Ireland’s libel laws.

Q: Why is the new law needed?

A: Media organisations have long been calling for far-reaching reforms to the Republic’s libel laws amid a regime that is slow, unpredictable, costly and characterised by huge awards. The costs involved in defending even the most baseless or vexatious cases — including cases which never go to trial — are so high as to threaten the viability of many media organisations. A succession of authorities, including the Council of Europe, the European Court of Human Rights, the European Commission and freedom-of-speech groups, have criticised the current defamation system in Ireland.

Q: What will the legislation do?

A: The main provision will be the abolition of juries in High Court defamation actions. This should reduce the likelihood of disproportionate awards for damages in successful claims, with judges rather than juries deciding upon the sums involved. There are also new protections against so-called Slapp cases — Strategic Lawsuits against Public Participation proceedings — and measures designed to help retailers deal with spurious claims. 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.

Q: What is a Slapp case and why should we be worried about them?

A: Slapp cases are generally taken by a rich and powerful person or organisation to deter criticism or investigation by journalists or human rights organisations. There have been European Union-wide efforts to provide safeguards and measures to help people targeted by Slapp proceedings. In announcing the planned measures in Ireland, Minister for Justice Helen McEntee said such proceedings are “recognised internationally as a significant challenge to press freedom and democracy, given the chilling effect they have on the work of investigative journalists”.

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Q: What will the new legislation do about it?

A: There will be an opportunity for defendants to apply for a declaration that a defamation lawsuit being taken is a Slapp case and there is to be accelerated treatment of such proceedings. An amendment to be brought at a later stage in the legislative process would also give power to the courts to award damages for harm suffered by a person targeted by Slapp proceedings. An earlier proposal for a defendant to a libel claim to be able to seek to have a case dismissed because it is a Slapp has not made it into the proposed legislation. Instead, defendants will be able to avail of a range of existing strikeout provisions.

Q: What’s this about new protections for retailers?

A: The Bill is to introduce a new statutory defence for retailers who are subjected to defamation cases. These can arise in instances where staff have challenged people on whether they have paid before leaving a shop or explained to a customer why a suspected counterfeit banknote cannot be accepted. The Department of Justice has said that while the Circuit Court has repeatedly held that it is not defamatory to make such inquiries, defamation claims in such cases are now generating significant extra legal and insurance costs for businesses. Under the Bill, retailers will have a defence of qualified privilege if customers are challenged with discretion and without malice.

Q: Is there anything in the Bill to make it easier for people who have been defamed to get justice?

A: Yes, mainly through reducing costs. The abolition of juries in High Court defamation actions should reduce costs for all involved as proceedings are likely to be concluded more quickly. Provisions to support the agreed resolution of defamation cases — through support for Alternative Dispute Resolution, agreed settlements and reform of the “offer of amends” procedures — are also designed to reduce high costs.

A planned amendment will mean people will no longer have to go to the High Court to get an order for a social media platform to reveal the identity of an anonymous user making defamatory remarks about them online. Instead the Circuit Court — where legal costs are lower — will have the power to issue such an order. Another provision in the Bill is that if a person is defamed by a media organisation the correction must be the same or similar prominence to the defamatory publication.