Mr. Declan Doyle:

Good evening, Chair, and committee members. The council of The Bar of Ireland, welcomes the invitation to attend before this committee. We hope to be of assistance to the committee in its endeavours. The written submission the committee has contains our views as objective, independent players in the whole area of the law of defamation. I will be happy to deal in detail with some of those rather complicated matters.

The defamation law is a key area of law. Effective law on defamation requires respect between the competing right to a citizen’s good name free from unjust attack, and the right to the freedom of expression. These are constitutionally protected rights, as the committee will be aware. However, the implementation of practical, workable and fair legislation, together with common law, is difficult and complicated. The strengthening of the rights of one citizen can lead to the unfair weakening of the rights of another. The bar council, as the accredited representative body of the independent referral Bar in Ireland, represents experienced and expert practitioners in the area of the law of defamation. Our members represent parties across all aspects of the tort, including individual citizens, established members of the print and broadcast media as well as members of social media who publish material on a daily basis. However, it is important to remember, as we have pointed out in our written submission, the majority of defamation cases do not include members of the press.

We are a representative body and, therefore, it would not be appropriate for the council to take a definitive for or against view of the general scheme as a whole. We acknowledged that the complexities in the law of defamation are many and that reform in the area is needed. However, the council also observes that the amendments proposed in the general scheme are significant, far-reaching in nature and appear to be weighted more in favour of the defendant than the plaintiff in defamation proceedings. Many of the issues are legally extremely complicated and are perhaps matters more appropriately dealt with by those drafting the legislation and in discussion in a smaller forum than this one.

The council’s written submission has sought to focus on particular areas where we feel that the Oireachtas may wish to give greater consideration to the amendments being proposed. Essentially, the three big ticket items are the proposed removal of juries in High Court defamation actions, the proposed introduction of a serious harm test and the proposed amendments in the areas of the section 26 defence relating to fair and reasonable publication on a matter of public interest.

The council is not supportive of the abolition of juries in defamation cases because they play a key role. I endorse what previous speakers have said in this regard. We also believe that it is likely that the abolition of juries will in fact result in an increase in costs, particularly related to complex pre-trial applications before a judge alone. The abolition of juries would also remove the very important peer review element which is central to both parties in a defamation action, whereby a citizen's reputation can be vindicated or a defendant’s publication can be assessed by a jury of peers.

We have grave concerns about the serious harm test. We submit that it needs a lot of tidying up. We have anecdotal evidence from the UK, where a serious harm test was introduced, that it has led to an explosion in legal costs. Effectively, there are two trials now. There is the first trial, which is the trial to determine whether a serious harm was done and that is almost akin to a full trial of the case. Legislators should bear in mind that if the plaintiffs get over that stage, they then must be entitled to serious damages, having suffered serious harm. We have grave reservations about that but are very happy to engage on trying to make something like that work.

Finally, the section 26 defence clearly has not worked. It is, in our view, a classic example of the need to be careful what you wish for. It is a section that was urged hard by the media in the run-up to the 2009 Act. A whole lot of criteria were put into the Act, largely at the behest of the print and broadcast media to set up this defence of fair and reasonable publication on a matter of public interest. To date, it has never been successfully mounted in the defence. The hurdles put in are too many and too difficult to satisfy.

The council supports anti-SLAPP measures but believes this should be done in conjunction with the European Union which is working on this on a Europe-wide level. To jump ship early and do something here, independent of the European process, would not be in the interests of either citizens or media defendants. We remain committed, as a representative body, to being part of the process making changes to the law of defamation. We are not stakeholders and do not have a vested interest but are available at all times to engage constructively in what is an important exercise for the Oireachtas.