Law Society concerns
The proposed legislation will abolish juries in High Court defamation cases, a move that the Minister for Justice Helen McEntee stated would “reduce the likelihood of disproportionate awards of damages, significantly reduce delays and legal costs, and reduce the duration of court hearings”.
There has been considerable opposition to the abolition of defamation juries.
The Law Society had previously expressed concern about this aspect of the bill, arguing that it would distance the public from the justice system.
The Oireachtas Justice Committee had also come out against the measure.
Last year, Mr Justice Bernard Barton, formerly of the High Court, wrote in the Law Society Gazette that a trial before a jury of fellow citizens was a fundamental legal right in serious civil or criminal cases, and that jury abolition was a radical departure from settled public policy.
The new bill also introduces measures aimed at protecting those targeted by Strategic Lawsuits against Public Participation proceedings (SLAPPs), where a plaintiff launches unfounded defamation proceedings against an individual or an organisation to silence responsible investigation, discussion or debate on matters of public interest.
The proposed legislation will also support the use of alternative dispute resolution (ADR). It also contains measures to encourage prompt correction and apology, where mistakes are made.
‘Retail defamation’
The bill also includes a new defence for broadcasters against liability for a defamatory statement made by a contributor during a live broadcast, if the broadcaster can show that it took “reasonable and prudent precautions” before and during the broadcast to prevent this.
Another measure in the bill is a new statutory defence in ‘retail-defamation’ cases, which the department says has been introduced in response to concerns about a large recent increase in claims of verbal defamation made against retail businesses.
The department says that defamation claims taken by people who are asked by retailers, for example, to produce a receipt for goods, are generating “significant extra legal and insurance costs for these businesses”.
The bill provides a new statutory defence for the retailer, which builds on the defence of qualified privilege. The new defence does not apply if the retailer is acting with malice, or if the retailer’s comments are publicised excessively, when discretion could have been used.
Government plans amendments
The department added that several other measures, which Minister McEntee will bring as Government amendments during the bill’s passage through the Oireachtas, were being finalised.
These include:
- A “clearer and simpler” defence of fair and reasonable publication in the public interest,
- A statutory power for the Circuit Court to issue a ‘Norwich Pharmacal’ order, directing a digital services provider to identify an anonymous poster of defamatory online material. This is aimed at significantly reducing legal costs for a person subjected to such comments.
- Power for the courts to award damages for harm suffered by a person targeted by SLAPP proceedings.
The general scheme of the bill was published last year.
Welcoming the decision to publish the bill, the Press Council chair Rory Montgomery said that the organisation would consider it in detail and continue to engage with the Department of Justice.
“Reform of Irish defamation law is necessary to support print and online journalism, and other media, in their role as a vital component of our democracy. It is long overdue. We call upon the Government to take this legislation forward as a matter of urgency,” he concluded.