The Department of Justice, under Minister for Justice Helen McEntee, recently completed its Report of the Review of the Defamation Act 2009 and brought a lengthy review of the defamation process to the Government.
The review highlighted anomalies in the way Irish laws deal with defamation.
The Defamation Act 2009 defines defamation and refers to a statement being defamatory where:
- The statement is published
- The statement is false
- The statement explicitly implies to or refers to a specific person (the person bringing the defamatory action).
In Ireland, Juries are present during the hearing of a defamation case, and in most cases the awards handed out to those that bring an action are substantial. The main focus of the Minister’s review dealt with this aspect of defamation cases in a bid to curtail the significant hand-outs, however, the review also found that a cap should not be put on damages as to do so could give rise to constitutional challenges.
Submissions received in relation to the review suggested that a defamation hearing should be heard and decided on by a judge sitting alone, without a jury. Further submissions compared Irish defamation laws to those in other jurisdictions, remarking that the awards handed out in Ireland were far too high and “disproportionate”, and that Irish laws gave too much weight to the protection of an individual’s reputation.
A number of other proposals considered include clearer protection for journalism surrounding public interest, easier access to justice for those who have had their reputation unfairly attacked, a reduction in the legal costs and delays that are involved with a defamation hearing and lastly, to ensure prompt apologies and correction of a statement.
The review found that the use of social media and content published online has provided huge challenges to defamation law, even since the developments provided by the Defamation Act 2009. Material published online have the potential to go instantly viral, making the efforts to remove offensive material in its entirety, extremely difficult. The review also recommends more easily attained court orders, directing the identity of an anonymous poster to be disclosed by online service providers. This can be done currently by way of a Norwich Pharmacal Order.
Minister McEntee advised that defamation law should strike a balance between vindicating an individual’s right to a good name and privacy, while also acknowledging the right to freedom of expression – a right protected by the Constitution of Ireland, and by the European Convention on Human Rights.
The review was approved by Cabinet and Minister McEntee has agreed to legislate the findings of the review by the end of this year.
About the Author: Ciaran Leavy, Partner and Head of Commercial Litigation