Ms Karyn Harty:

I thank the Cathaoirleach for the opportunity to participate in this meeting of the joint committee to discuss the general scheme of the Defamation (Amendment) Bill. I am Karyn Harty, head of disputes at Dentons Ireland. I serve as global co-chair for disputes at Dentons, which I joined in 2022 after 24 years with another firm. I have specialised in media defence for more than 25 years, representing a wide range of international newspapers, broadcasters, magazines and book publishers and more recently a number of different digital media companies. I am also a regular speaker on the use of technology for legal services and I served on the Irish Business and Employers Confederation, IBEC’s artificial intelligence, AI, advisory committee.

I am joined today by my colleague Ms Lesley Caplin, of counsel at Dentons, who has specialised in media defence for 17 years and is an experienced civil jury practitioner. She also represents a wide range of clients including broadcasters, digital platforms, newspapers and publishers with a particular focus on digital media.

Our media practice globally focuses on media defence and we do not, as a rule, take claims against media organisations. We recognise that the Constitution guarantees a number of competing rights, including freedom of expression and the right to one’s good name, and we have sought to have regard to the need to balance rights in making our submissions.

The proposal to reform the Defamation Act 2009 is welcome. The legislation is not operating as it should and Ireland’s defamation regime in its current form is detracting from, rather than contributing to, the free and fair circulation of news and other discourse, which is so fundamental to our democratic system. As legal practitioners, we are perhaps uniquely placed to speak to aspects of the Act that do not work as well as they should and to highlight potential roadblocks in respect of the changes proposed in the draft provisions. In making written submissions to this committee, Dentons has sought to assist its work by suggesting alternative approaches that may be more workable, or at least less vulnerable to challenge.

In general, we support the scheme of the proposed reforms but aspects of the proposed changes seem to us to be either unnecessary or likely to give rise to problems. These are discussed in some detail in our submission and we are very happy to answer questions in this regard. We do not, for example, support the proposal to abolish jury trialsfor defamation and we are happy to expand on our thinking on that, appreciating that some others in the industry take a contrary view. Bearing in mind the importance of those affected by this legislation understanding its effect, we favour a stand-alone Act that would benefit from much greater clarity rather than amending legislation, which could only be properly understood by cross-referring to the 2009 Act and other legislation.

We are concerned that the serious harm tests proposed in the general scheme may not have the intended outcome in practice for the reasons set out in our submissions. We have, therefore, suggested an alternative approach of making the defamation claims in question actionable only on proof of special damage and we can speak to that further.

We welcome the proposal to make it easier to strike out claims for want of prosecution. We have raised a flag in regard to the proposed reworking of the defence of honest opinionand we have suggested a further look at the offer to make amends regime. We fully support the proposal to regulate strategic lawsuit against public participation, SLAPP, litigation and we have adopted the Index on Censorship submissions in that regard.

In closing, we emphasise that it is essential that any new regime has regard to evolving and emerging technologies and is consistent with both the Digital Services Act, DSA, and the Artificial Intelligence Act, which will come in soon. We look forward to assisting the committee with its deliberations.