Defamation Reform Bill Nears Final Stage
The Defamation (Amendment) Bill 2024 proposes significant reform to defamation laws in Ireland. Currently at the Committee Stage in the legislative process, the Bill is undergoing a detailed section-by-section review before the Seanad. The Bill was first proposed in August 2024, following a lengthy review process which began with a public consultation in 2016, to review the operation of defamation laws in Ireland. Once enacted, the Bill will introduce significant changes to defamation laws in Ireland.
1. New statutory defence for retailers
The Bill introduces a new statutory defence for retailers aimed at addressing concerns about unfounded defamation claims against retailers. The defence will apply where a retailer questions a person as to whether they have paid for goods or services, whether they have goods in their possession, or where the retailer asks for proof of payment. In order for the defence to apply, the person making the inquiry must have a duty or interest in making the statement and must not publish the statement excessively.
2. Serious harm threshold for body corporates
Current defamation laws allow a body corporate to bring a defamation action irrespective of whether the company has incurred or is likely to incur financial loss as a result of the statement. However, the Bill proposes to change this, introducing a ‘serious harm’ threshold that companies will have to meet in order to bring defamation proceedings. In order to bring defamation proceedings, a body corporate that trades for profit will have to show that the statement has caused, or is likely to cause, serious harm to its reputation in the form of serious financial loss.
3. Abolition of juries in defamation proceedings
One of the significant reforms proposed by the Bill is the abolition of juries in High Court defamation proceedings. Currently, there is no entitlement to a jury in Circuit Court defamation proceedings; however, in the High Court defamation actions are heard with a jury. The removal of juries in the High Court is aimed at reducing the likelihood of disproportionate awards of damages, as well as reducing legal costs and the length of trials.
4. Power for the Circuit Court to grant a Norwich Pharmacal order
The Bill proposes a new power for the Circuit Court to grant what is commonly known as a Norwich Pharmacal Order, which is a disclosure order directing an intermediary service provider to disclose the identity of an anonymous publisher. At present, the High Court can grant such an order; however, the Bill proposes that the Circuit Court would also have power to grant an identification order. This proposal is aimed at introducing a simpler, cheaper and quicker mechanism to identify the individual behind an anonymous online publication.
5. Anti-SLAAP
To give effect to EU Anti-SLAAP laws, the Bill introduces measures against ‘strategic lawsuits against public participation’ aimed at preventing powerful people and companies from using legal proceedings to censor or intimidate legitimate critics, for whom defending such claims is likely to be prohibitive. The Bill proposes to allow a defendant to seek a declaration that the proceedings amount to abusive court proceedings against public participation.
Final Steps for Defamation Reform
The Bill continues to be reviewed in the Seanad, where proposed amendments have been debated over the last number of months. One such amendment that was considered by the Seanad was a proposal to redefine defamation, by introducing a ‘serious harm’ threshold for all plaintiffs. Key considerations in the debate included the ability of retailers to protect their business interests and the inconsistency in having a serious harm threshold for corporate bodies only. Ultimately, the proposed amendment was rejected, with the Minister highlighting constitutional concerns around restricting the right to one’s good name, as well as potential procedural complexities that introducing such a test could introduce.
After years of consultation and debate around the reform of defamation laws in Ireland, the Bill is now approaching the final stages of the legislative process. It will continue to be debated in the Seanad, before it moves on to the Report Stage, where any amendments arising out of the Committee Stage will be discussed, and no further amendments can be brought forward. Once enacted, the reforms will bring significant changes to raising and defending defamation claims in Ireland.
Lisa Carty, Litigation, Regulatory & Tax Partner, Pinsent Masons Ireland LLP
Jane Bourke, Senior Associate, Intellectual Property, Pinsent Masons Ireland LLP
