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Keep juries for defamation – Oireachtas committee

A report by the Oireachtas justice committee has called for the removal of a proposal to abolish juries in High Court defamation actions.

The recommendation is contained in the committee’s final report after pre-legislative scrutiny of the Defamation (Amendment) Bill, the general scheme of which was published earlier this year.

The bill followed a review of the Defamation Act 2009 that was published by the Department of Justice last year.

The report says that juries should be maintained in High Court defamation actions in order to make findings of fact, and to make an indicative finding of an appropriate level of damages, where appropriate.

The committee adds, however, that judges should be the final arbiters of the amount of any damages to be awarded, and that they should not be bound by the indication given by a jury.

‘Radical departure’

The plan to scrap juries in such actions had attracted much criticism, with former High Court judge Bernard Barton telling a Law Society conference on defamation last year that moving from jury to judge to decide such matters was “preposterous”.

Writing in the Gazette earlier this year, he also said: “The proposal, if enacted, represents a radical departure from a long-settled public policy that lies behind the legal right of the citizen to jury trial: namely, that fact-finding in serious criminal and civil cases should be determined, where possible, by a jury of fellow citizens.”

The Oireachtas committee report also calls for a more “inclusive” definition of a SLAPP (strategic lawsuit against public participation) in the bill, and for judges to receive training to enable them to better identity such cases.

It also argues that the courts, and not social-media companies, should be responsible for assessing whether online material is potentially defamatory and should be taken down, and that the relevant court should have the power to make an order accordingly.

The committee also recommends that consideration be given to introducing a ‘serious harm’ test for all cases of defamation.

Mediation

The report comes out against the creation of a new agency, along the lines of the Personal Injuries Assessment Board, for defamation, but adds that a system that incentivises the use of mediation and other forms of alternative dispute-resolution should be considered.

The committee recommends that the statute of limitations be defined under the legislation, and that consideration be given to setting the statute of limitations for defamation cases at two years, though this could be paused where individuals use an alternative resolution process.

“The committee hopes that a reform of the current legislation can ensure that a balance is struck between the right to freedom of expression, the right of an individual or entity to protect their good name and reputation, and the right of adequate access to justice,” said committee chair James Lawless.