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Sky-high damages a risk for journalism – review

Justice minister Helen McEntee (pictured) has been given Cabinet approval to prepare new defamation legislation, after the publication of her department’s review of the Defamation Act 2009.

The review highlighted several concerns about the current system – including high levels of damages in some cases, high legal costs, and the resulting risks to public-interest reporting and investigative journalism.

The report makes several recommendations aimed at delivering a more efficient system that avoids “disproportionate” awards, and protects investigative journalism.

Its main proposals include:

• An end to juries in defamation cases,
• Easier access to justice for individuals whose reputation is unfairly attacked,
• Clearer protection for responsible public-interest journalism,
• Reducing legal costs and delays,
• Measures to encourage prompt correction and apology, where mistakes are made, and new measures to combat abuse,
• Making it easier to grant orders directing online service providers to disclose the identity of an anonymous poster of defamatory material.

Review against cap

The review recommends that all defamation cases be heard by a judge alone, sitting without a jury, arguing that this would reduce the incidence of “excessive or disproportionate” awards, as well as cut delays and legal costs.

It comes out against introducing a book of quantum for defamation charges, however, as it would be difficult to apply such an approach in the defamation context, where the injury is mainly intangible.

It also rules out a cap, saying that this would give rise to “difficult constitutional issues”.

To reduce delays, the review proposes providing the courts with the power for the court to dismiss a defamation claim that is not progressed by the plaintiff within two years of issue, unless there are “special circumstances”.

Deterring SLAPPs

The report calls for a new mechanism to deter what are known as SLAPPs (strategic lawsuits against public participation).

The review describes a typical SLAPP as “a groundless or grossly exaggerated lawsuit – typically issued by wealthy companies or individuals against weaker parties who have engaged in criticism or debate that is uncomfortable to the litigant”.

It calls for a mechanism to allow a person to apply to court for summary dismissal of defamation proceedings that he or she believes are a SLAPP.

The review backs the removal of a blanket exclusion of defamation claims from eligibility for civil legal aid.

‘Chilling effect’ on journalism

The minister said that the law had to strike the correct balance between rights which are protected by the Constitution, and by the European Convention on Human Rights.

“We should vindicate both the individual’s right to their good name and privacy, and the right of others to freedom of expression, taking account of the vital role played in our democracy by a free and independent media,” she stated.

Submissions made to the review of the current legislation highlighted several concerns

•  “Very high” levels of damages awarded in some defamation cases; according to the department, these were seen as disproportionate to levels of awards for serious personal injuries, and to defamation awards in other common-law jurisdictions,
• High legal costs, and the scope for delays in defamation cases,
• The risk of these factors having a ‘chilling effect’ on public-interest reporting and investigative journalism,
• The need for quicker, more accessible and more effective redress mechanisms, particularly in cases of online defamation,
• The need to encourage use of alternative dispute resolution (ADR), and prompt, informal redress,
• Difficulties for individual plaintiffs in accessing justice – including exclusion from legal aid and a lack of user-friendly complaint procedures,
• Whether, conversely, it was too easy to bring defamation proceedings, and whether additional conditions should be imposed,
• The need to clarify or simplify the requirements of defence to some defamation claims,
• A lack of transparency on the reasons for jury decisions in defamation cases, which was seen as creating legal uncertainty, and generating avoidable extra appeals and legal costs,
• Whether there is scope for abuse of defamation law, including by issuing vexatious proceedings.

The review’s key recommendations are to:

• Avoid disproportionate awards, and support more consistent, proportionate, and predictable redress in defamation cases,
• Ensure that an individual whose good reputation is unfairly attacked can avail of quicker, more efficient, better-targeted redress – including in cases of online defamation,
• Provide clearer protection for responsible public-interest journalism and investigative reporting,
• Significantly reduce unnecessary legal costs and delays, increase the use of ADR, and the use of prompt correction and apology, where mistakes are made, and
• Introduce new measures to combat abuse.