Thurles Information

• 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.

The Irish Government have granted 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 Irish defamation laws.

The main purposes of the Bill are to:

1. Tackle disproportionate awards, and support more consistent, proportionate and predictable redress in defamation cases, including the abolition of juries in High Court defamation cases.
2. Support easier access to justice for individuals whose reputations are unfairly attacked.
3. Provide that, if a person is defamed, the correction must be the same or similar prominence to the defamatory publication.
4. Provide enhanced and clearer protection for responsible public interest journalism.
5. 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.
6. Deter abusive use of unfounded defamation proceedings, particularly SLAPPs*.

* SLAPPs are unfounded and abusive legal actions that aim to silence those working in the public interest on matters such as fundamental rights, the environment, and public access to information.

Several further key reforms are being finalised, 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, thus significantly reducing the legal costs for a person subjected to such comments. Work on a power for the courts to award damages for harm suffered by a person targeted by SLAPP proceedings is already in the pipeline.

* A Norwich Pharmacal order is an order made by the court which compels the respondent to disclose certain information or documents to the applicant. This form of order is primarily sought as a means of identifying the appropriate defendant to an action. It is commonly sought against an innocent intermediary who, although not directly involved in the offending activity, holds information or documentation required for the issuing of proceedings.

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.