Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I want to ensure that our legislation addresses the challenges posed by an increasingly complex media landscape. I strongly believe the rule of law and democracy cannot truly flourish without robust protection for the right of freedom of expression though, of course, this must always be carefully balanced, as it is under our Constitution and the European Convention on Human Rights, with safeguarding the individual right to good name and reputation. The question is about striking the right balance between those rights.

On 1 March, I published the report on the review of the Defamation Act 2009. I hope that Deputies have had an opportunity to view the report which is available on my Department's website along with a complementary summary document. I look forward to hearing from them during this debate about their views on the report and its recommendations.

Our defamation legislation must protect the right to freedom of expression while also safeguarding our citizens' right to a good name and reputation. We need to be mindful of striking a balance between those rights which are both protected by our Constitution and the European Convention on Human Rights. It is essential we respect the crucial role played in our democracy by a free and independent media and other civil society actors in providing information and debate on public matters of interest.

Enshrining the right of access to justice for people whose rights have been infringed is also a core principle we must uphold. Online defamation, in particular, is a complex and evolving area of law that presents particular challenges through its overlap with EU law and with privacy and data protection law. I am committed to reviewing and reforming defamation law with a view to upholding these rights and achieving that balance in line with our programme for Government commitments.

This report considers in detail all the issues raised by submissions which were made to my Department during our consultation process. It examines relevant reforms in other common law countries and at EU level and sets out a range of recommendations for change. The review contains proposals to provide clearer protection for responsible, public interest journalism. It also recommends a number of mechanisms that support more consistent, proportionate and predictable redress in defamation cases.

One of the report's major recommendations is to end the use of juries in defamation cases. In their submissions to my review, many individuals and organisations told us that using juries leads to excessive rewards in defamation cases, high legal costs, unpredictable outcomes and extremely long delays. It is worrying that these factors are seen as having a very chilling effect on public interest reporting and on media freedom of expression.

Traditional print media is operating in an increasingly difficult environment where high awards and legal costs threaten the very economic viability of some national newspapers. Both the European Court of Human Rights and our Supreme Court have underlined that awards in defamation cases must be proportionate to avoid infringing the right to freedom of expression.

There have been a number of examples in recent years where very large jury awards for defamation were reduced substantially by the higher courts on appeal. In one such case a jury award of €10 million was reduced on appeal to €250,000. However the need to appeal an excessive award can lead to significant extra legal costs and delays. The fact that juries cannot give reasons for the decisions in defamation cases was also viewed as a cause for concern by many who engaged with the consultation, as it can lead to legal uncertainty and to appeals brought simply to clarify the point of law in an issue.

The review proposes the provision of quicker, lower cost and more accessible and effective redress mechanisms, including in cases of online defamation. It makes proposals to support increased use of alternative dispute resolution and of prompt correction and apology where mistakes are made. The report examines a general view expressed by some submissions that it is too easy for plaintiffs to bring defamation proceedings and that they should have to satisfy extra tests and conditions before they have access to the courts.

Given the importance of safeguarding access to justice, the report recommends against introducing any such general measures. However the report also considers where there is scope for abuse of defamation law, which includes the issuing of vexatious proceedings, and it proposes measures to guard against this particular risk.

Finally, the report makes proposals to clarify or simplify the requirements of some defences to defamation cases.

These include defences important for public debate and investigative journalism and they respond to submissions from the print media and the National Union of Journalists, NUJ.

On the other hand, the report also acknowledges the difficulties for individual plaintiffs in accessing justice. Easier access to justice for individuals whose reputations are unfairly attacked is a key recommendation of this review, which contains several proposals to ensure plaintiffs have quicker, more effective and lower-cost access to redress. One example concerns changes that would make it easier and less expensive to seek a court order directing online service providers to disclose the identity of an anonymous poster of defamatory material. The renowned journalist Walter Cronkite once said that "Freedom of the press is not just important to democracy, it is democracy".

Our defamation law must safeguard against any attempts to weaken and deter public interest discussion and, in particular, investigative journalism. That is why I am pleased there is a specific recommendation in the report for the introduction of a mechanism against strategic lawsuits against public participation, SLAPP, into Irish law. This is to prevent wealthy and powerful entities from undertaking strategic and abusive use of vexatious litigation. Věra Jourová, the European Commission Vice President for Values and Transparency, launched a package of EU anti-SLAPP measures just last month. In her remarks at the launch, she noted that Ireland was among a small number of EU member states already exploring the possibility of introducing anti-SLAPP protection in our national laws. Like the review my Department has done, the Commission's work seeks to strengthen protection for freedom of expression, taking account of the vital role played in our democracy by free and independent media, and other civil society actors, in providing information and debate on matters of public interest, while of course respecting other relevant fundamental rights. The proposal for a directive will now be subject to detailed consideration by the European Council and the European Parliament and we look forward to contributing to that discussion.

The anti-SLAPP recommendation in my Department's review would essentially allow a person to apply to a court for a summary dismissal of defamation proceedings that he or she believes to be an instance of SLAPP. It goes beyond the scope of the Commission's proposed directive, which is limited to civil cases with cross-border implications. The review is based on a considerable amount of consultation and analysis, including a public consultation, and a stakeholder symposium that brought together representatives from media, academia, the legal profession, social media companies, NGOs and relevant State bodies. Our Department also undertook analysis of the relevant judgments of the Irish superior courts and the European Court of Human Rights, ECHR. We scrutinised relevant EU law, including the proposed EU digital services Act, which includes significantly enhanced protection, enforcement and redress at EU and national levels against online content that is unlawful under national or EU law. We also carried out a comparative review of defamation laws and reforms in other common law jurisdictions.

This report is the culmination of extensive work by my Department and I am proud of the results we have produced. Defamation is an extremely complex area of law, but it is also very important. That is why it is essential for us to take the time and effort to get this report right. I thank everyone who engaged with my Department during the review process. I thank them for their thoughtful and constructive contributions, which have helped to shape this report. Since its publication in March, it has been encouraging to see the broadly positive reaction to it, including from the NUJ and other media representatives. Overall, I believe that with the recommendations set out in this review, we have struck the right balance. I am committed to enshrining defamation in law as soon as possible.

My Justice Plan 2022 commits to publishing the general scheme of the defamation (amendment) Bill in quarter four of this year. My officials will consult in detail with the Office of the Attorney General during the preparation of this general scheme. I look forward to working again with all the relevant stakeholders, including members of the Oireachtas, as part of that legislative process. Even more than that, I look forward to enshrining in law principles that protect and enhance some of the most fundamental rights underpinning a truly democratic society.

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