Measures to stop powerful individuals from bringing vexatious legal proceedings to silence valid criticism or debate are contained in long-awaited defamation reforms going to the Cabinet this week.
An “anti-SLAPP” mechanism has been recommended in a report reviewing the Defamation Act, the Sunday Independent has learned.
The term “SLAPP” stands for “strategic lawsuit against public participation” and refers to the abusive use by a powerful entity of vexatious litigation to weaken and deter public interest discussion and investigative journalism.
It typically involves a groundless or exaggerated lawsuit filed by a wealthy individual or entity against a weaker party in an effort to silence and intimidate a critic by burdening them with legal defence costs.
The report recommends the introduction of a mechanism to combat such practice, under which a defendant can apply to court for the summary dismissal of proceedings they believe to be a SLAPP.
Subject to cabinet approval, Justice Minister Helen McEntee intends to publish the report and include recommended reforms in a new Defamation Amendment Bill. The move comes on the back of long-standing criticism of Ireland’s defamation regime.
Free-expression organisation Index on Censorship found Ireland’s legal system was among the most vulnerable in Eur-ope to abuse by vexatious litigators and that there were indications the country was becoming a hub for “libel tourism”.
The European Commission’s 2020 Rule of Law Report found frequent defamation suits, high costs and high damages awarded by Irish courts were “seen as an inducement to self-censorship and a constraint to media freedom”.
The report being brought to the Cabinet on Tuesday also recommends the introduction of a requirement for a court to be satisfied Ireland is clearly the most appropriate place for an action.
At present, there is a low bar for a defamation action involving foreign parties to be heard in Ireland.
A prominent recent example of libel tourism is the case being taken by American motivational speaker Tony Robbins against a UK subsidiary of New York-headquartered internet media firm Buzzfeed over articles alleging sexual misconduct, which he denies.
The High Court upheld Mr Robbins’s right to sue in Dublin, even though the impugned articles were viewed only 13,382 times in Ireland out of 3.5 million views worldwide.
Readers in the US accounted for 82.7pc of those views, the potential witnesses in the libel action all live in North America and the website is hosted by a company in the state of Virginia.
As revealed by the Sunday Independent last week, the report also recommends the abolition of juries in High Court defamation claims, a move that would bring more certainty on damages and reduce the likelihood of excessive or disproportionate awards.
A judge would decide whether defamation has occurred, and the nature and level of redress, including the amount of any damages.
The report concluded the abolition of juries would also reduce the length of hearings, lessen delays and significantly reduce the proportion of cases appealed.
While media organisations and freedom of expression groups will welcome the measures, they are likely to be disappointed the report does not go further.
In particular, it does not recommend the introduction of a cap on damages in defamation cases, finding this would give rise to difficult constitutional
Neither does it recommend the introduction of a general requirement for a plaintiff to first prove they have suffered “serious harm”, a requirement introduced in the UK in 2013.
However, it does recommend this should be considered in two instances.
The first is where a statement is made in “a non-permanent forum”, such as in the course of a person being refused access to retail services.
The second would be for situations where a business sues. It would have to show the impugned statement resulted in it sustaining serious financial loss. However, the report says consideration should be given to exempting SMEs from this requirement.