Long-awaited reforms to Ireland’s defamation laws will see juries abolished for High Court cases, but there will be no cap on damages that a court can award and no blanket ‘serious harm’ test to discourage trivial libel claims, the Sunday Independent understands.
A report by a group set up to review the Defamation Act does not recommend a cap on damages that can be awarded by a court for constitutional reasons and also recommends against there being a general requirement for someone to show serious harm was caused by a publication of a statement.
The long-delayed report and a proposal to develop the general scheme of the Defamation Amendment Bill 2022 based on its recommendations will be brought to Cabinet later this month by Justice Minister Helen McEntee.
Ireland’s current defamation laws, which were last reformed in 2009, have been criticised by the European Commission which said the frequency of cases, high defence costs and high damages awarded were an inducement to self-censorship and constrained media freedom. However, some lawyers and academics have said a person’s right to their good name is protected by the Constitution and must be taken into account in any changes.
Media organisations and industry representative bodies have argued for a cap on damages, the abolition of juries whose presence makes the outcome of libel extremely unpredictable and the introduction of a serious harm test whereby a statement is not considered defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
The report does not recommend a blanket ‘serious harm’ test, it is understood, but says there could be one in certain instances. It does recommend the abolition of juries in libel cases, meaning that such cases will be judge-led, in a move that is likely to impact on levels of redress awarded to a claimant.
It also recommends that there be an express power for defamation cases to be dismissed within two years of being filed if there has been no progress on it unless for specific reasons. A new provision that the court must be satisfied that Ireland is the appropriate place for the case to be heard is also recommended. This will be seen as an effort to combat so-called ‘libel tourism’ whereby overseas litigants use the State’s favourable defamation laws to sue media outlets.
The report is also expected to clarify issues around what represents fair and reasonable comment, the defence of innocent publication and the defence of honest opinion. It recommends removing the ban on accessing legal aid in defamation cases although this will form part of wider reforms to the legal aid system.
The review of the 2009 Defamation Act began over five years ago but was beset by delays owing to what an internal memo prepared for ministers describes as important intervening judgments from the higher courts and the European Court of Human Rights, and other legislative priorities including Brexit and Covid.
The memo also notes reforms are needed to address the new issue of online defamation, particularly via social media, which has radically changed the potential range and spread of defamatory material.