Long-awaited reforms to Ireland’s defamation laws will see juries abolished for High Court cases, but there will be no cap on the damages a court can award and no general ‘harm’ test. serious” to discourage petty libel claims, the Sunday Independent understands.
report by a group set up to review defamation law does not recommend capping the damages that can be awarded by a court on constitutional grounds and also recommends against generally requiring a person to show that a serious damage has been caused by the publication of a statement.
The long-delayed report and a proposal to develop the outline of the Defamation Amendment Bill 2022 based on its recommendations will be presented to Cabinet later this month by Justice Minister Helen McEntee.
Ireland’s current defamation laws, which were last reformed in 2009, have been criticized by the European Commission which has said the frequency of cases, high defense costs and high damages awarded are an incentive to self-censorship and restricted media freedom. However, some lawyers and scholars have said that a person’s right to reputation is constitutionally protected and must be considered in any changes.
Media organizations and industry representative bodies have argued for caps on damages, the abolition of juries whose presence makes the outcome of libel extremely unpredictable, and the introduction of a serious prejudice test whereby a statement is not considered defamatory unless its publication has caused or is likely to seriously damage the reputation of the plaintiff.
The report does not recommend a general “serious harm” test, it is understood, but says there could be one in some cases. It recommends the abolition of juries in defamation cases, meaning these cases will be headed by a judge, which is likely to impact the levels of relief awarded to a plaintiff.
It also recommends that there be express power for defamation cases to be thrown out within two years of being filed if there has been no progress except for specific reasons. A new provision that the court must be satisfied that Ireland is the appropriate place for the case to be heard is also recommended. This will be seen as an effort to combat so-called “libel tourism” whereby foreign litigants use the state’s favorable libel laws to sue the media.
The report should also clarify issues regarding what constitutes fair and reasonable comment, the innocent publication defense and the honest opinion defence. It recommends removing the ban on access to legal aid in defamation cases, although this is part of wider reforms to the legal aid system.
Review of the Libel Act 2009 began more than five years ago but has been hampered by delays due to what an internal memo prepared for ministers describes as important interim judgments from higher courts and the European Court of Human Rights, and other legislative priorities including Brexit and Covid.
The note also notes that reforms are needed to address the new problem of online defamation, particularly via social media, which has radically changed the potential reach and dissemination of defamatory material.