James Browne (Wexford, Fianna Fail)
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I propose to take Questions Nos. 830 to 832, inclusive together.

On 28 March 2023, Government approved publication of the General Scheme of the Defamation (Amendment) Bill and the priority drafting of a Bill to give effect to the proposals set out in the General Scheme. Drafting is well advanced, and I expect to bring the amending Bill to Government in the coming weeks for approval to present it in the Oireachtas.

The Bill will ensure a balanced approach to protecting the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice. It takes account, in particular, of the important role played by independent journalism in a democratic society.

Taking into account the recommendations of the Report of the Review of the Defamation Act 2009 (published in March 2022), the General Scheme provides for significant reforms including:

• The abolition of juries in High Court defamation actions
• If a person is defamed, the correction must be published with equal prominence to the defamatory publication
• Plaintiff or defendant may lodge an offer of settlement in court which will be taken into account in determining costs
• Provisions to address the issue of ‘libel tourism’
• Reforms the defence of ‘fair and reasonable publication’ on a matter of public interest to make it simpler and clearer
• Reformed defence for live broadcasting - if a contributor unexpectedly makes a defamatory comment during a live broadcast, provided the broadcaster shows it took reasonable measures before and during the broadcast to prevent that happening
• Provides for the insertion of a new Part into the Act to deal with strategic lawsuits against public participation (SLAPPS)
• Creates a new statutory power for the Circuit Court, as well as the High Court, to make a ‘Norwich Pharmacal’ order, making these identification orders less costly and more accessible. The order directs an intermediary service provider to provide information identifying an anonymous owner and operator of an account, author/poster of a defamatory statement. This power allows for the removal of a defamatory statement and also to block access to the statement
• A statutory Notice of Complaint process, to make it easier, quicker and cheaper to notify a digital publisher of online defamatory content, and request takedown.

With regard to SLAPPs, the Government is aware that powerful individuals and companies can seek to misuse defamation laws to prevent journalists reporting in the public interest on their activities, and indeed to target public participation more broadly. Strategic Lawsuits Against Public Participation – known as SLAPPs – are recognised, both here and internationally, as a significant challenge to press freedom, given the chilling effect they have on investigative journalists in their work.

My Department’s Report on the Review of the Defamation Act, which I published along with Minister McEntee in March 2022, already drew attention to this issue, and recommended the introduction of concrete measures to counter SLAPPs.

The General Scheme now sets out targeted new measures to identify and tackle SLAPPs in defamation proceedings, while protecting access to the courts for all. This underlines that Ireland values public interest journalism, and is committed to maintaining it. The proposed measures take account of best practice internationally and in other jurisdictions. They target internationally recognised hallmarks of SLAPP proceedings, such as a deliberate generation of maximised legal costs and delays to threaten and silence public interest reporting, often using greatly exaggerated or unfounded claims.

The targeted new measures would apply, for example, where defamation proceedings are brought in respect of public interest reporting by an investigative journalist. They include:

• A new procedure for early dismissal of defamation proceedings if they are clearly shown to be a SLAPP: this tackles unfounded claims that focus on deliberate generation of legal costs and delays
• Security for costs: the court can make an order at any stage requiring a SLAPP plaintiff to provide security for the defendant’s costs
• The court will have power to make an award of damages against the SLAPP plaintiff, in respect of harm caused by those proceedings to the defendant
• Award of costs: where a court is satisfied that defamation proceedings against public participation constitute a SLAPP, the plaintiff in those proceedings will bear all the defendant’s costs on a full indemnity basis.

It was decided not to provide for a general ‘serious harm’ test in the Bill, for two reasons:

1. It can be expensive and difficult for an individual to prove the damage to their reputation caused by a defamatory comment, as this sort of reputational damage can be intangible and hard to quantify; there’s some evidence that in the UK, changes to the law have led to significant and expensive pre-trial hearings on the serious harm issue, in addition to the existing requirements under defamation law;

2. there is a specific constitutional obligation in Ireland to protect a person’s good name, and there are significant legal issues about whether a general serious harm test would be compatible with it.

However, the General Scheme does propose to introduce a serious harm test in two situations.

• Firstly, where a company proposes to sue for defamation of its corporate reputation.
• Secondly, in cases of ‘transient retail defamation’, which essentially responds to a sharp recent increase in claims that a person is defamed just by being asked to show a receipt for goods in their possession when they are leaving a shop.

Finally, the General Scheme includes a number of measures to encourage and support the use of alternative dispute resolution, including reforms to the ‘offer of amends’ procedure, a requirement for solicitors to inform their clients of alternative dispute resolution options before issuing defamation proceedings (including mediation and the processes offered by the Press Council and an Coimisiún na Meán (formerly the Broadcasting Authority), and a requirement for parties to have considered those options before proceeding to litigation.