Thurles Information

• Draft legislation addresses challenges posed by an increasingly complex media landscape.
• Abolition of juries in High Court defamation actions will reduce disproportionate and unpredictable awards.
• Improve the ability to tackle online defamation.
• Innovative measures to tackle strategic lawsuits against public participation (SLAPPs) which seek to silence responsible journalism.
• Raft of reforms to reduce legal costs and delays, incentivise Alternative Dispute Resolution, and support faster and more effective takedown, apology and correction.

The Minister for Justice Simon Harris has today published the General Scheme of the Defamation (Amendment) Bill, following Government approval for priority drafting of the Bill and referral of the General Scheme to the Joint Oireachtas Committee on Justice for pre-legislative scrutiny. Today’s developments mark significant progress on the Programme for Government commitment to review and reform defamation laws.

Minister Harris said: “Democracy cannot truly flourish without robust protection for the right of freedom of expression. Of course, this must always be carefully balanced with safeguarding the individual right to good name and reputation, and the right of access to justice. I believe this legislation strikes the right balance between those rights.”

Taking into account the recommendations of the Report of the Review of the Defamation Act 2009 published in March 2022, the General Scheme provides for significant reforms including:

• The abolition of juries in High Court defamation actions.
• Requiring solicitors to inform their clients of alternative dispute resolution options including mediation before issuing defamation proceedings, and obliging parties to have considered those options.
• If a person is defamed, the correction must be published with equal prominence to the defamatory publication.
• Plaintiff or defendant may lodge an offer of settlement in court which will be taken into account in determining costs.
• Provisions to address the issue of ‘libel tourism’.
• Reforms the defence of ‘fair and reasonable publication’ on a matter of public interest to make it simpler and clearer.
• Reformed defence for live broadcasting – if a contributor unexpectedly makes a defamatory comment during a live broadcast, provided the broadcaster shows it took reasonable measures before and during the broadcast to prevent that happening.
• Provides for the insertion of a new Part into the Act to deal with strategic lawsuits against public participation (SLAPPS).
• Creates a new statutory power for the Circuit Court, as well as the High Court, to make a ‘Norwich Pharmacal’ order, making these identification orders less costly and more accessible. The order directs an intermediary service provider to provide information identifying an anonymous owner and operator of an account, author/poster of a defamatory statement. This power allows for the removal of a defamatory statement and also to block access to the statement
• A statutory Notice of Complaint process, to make it easier, quicker and cheaper to notify a digital publisher of online defamatory content, and request takedown.

Minister Harris added: “I want to ensure that our legislation addresses the challenges posed by an increasingly complex media landscape.
This legislation provides for more efficient and less costly resolutions of defamation proceedings – as well as effectively tackling the new and specific problems raised by online defamation.
The abolition of juries in High Court defamation actions will reduce the likelihood of disproportionate and unpredictable awards and high legal costs.
The Bill also introduces provisions for preventing SLAPPs from exercising a ‘chilling effect’ on freedom of expression, and particularly, on investigative journalism or public debate on issues of public interest.
Furthermore, the legislation will develop the use of alternative dispute resolution processes and solutions to streamline and reduce costs, and avoid defamation being perceived as a ‘rich man’s law’.
I believe that the proposed amendments will have a positive overall impact on protection of fundamental rights, access to justice, reduction of courts backlogs and reduction in legal costs.

The Bill also introduces provisions for preventing SLAPPs from exercising a ‘chilling effect’ on freedom of expression, and particularly, on investigative journalism or public debate on issues of public interest.
Furthermore, the legislation will develop the use of alternative dispute resolution processes and solutions to streamline and reduce costs, and avoid defamation being perceived as a ‘rich man’s law’.
I believe that the proposed amendments will have a positive overall impact on protection of fundamental rights, access to justice, reduction of courts backlogs and reduction in legal costs.”

The General Scheme also takes account of several important recent developments, both at national and EU level:

• The EU ‘Digital Services Act’ Regulation (adopted in October 2022), which establishes a major new framework for regulating online communication;
• the enactment in December 2022 of the Online Safety and Media Regulation Act, bringing important changes, in particular, to the regulation of broadcast media;
• the establishment of an Coimisiúin na Meán, and its designation by Government as the Digital Services Coordinator for Ireland under the EU Digital Services Regulation, and;
• the European Commission’s launch in April 2022 of the legislative proposal for an EU anti-SLAPPs Directive, which is currently in negotiation before the Civil Justice Working Group of the European Council.

The Minister concluded: “As the General scheme goes forward for pre-legislative scrutiny, officials in my Department will now commence priority drafting of the Bill. I intend to have a full Bill before the Oireachtas by the end of the year.
I look forward to engaging stakeholders and colleagues, both interdepartmentally and at EU level, as the legislative process continues.”