Speech
Speech by Minister McEntee on the Report of Review of Defamation Act 2009
By: Minister for Justice; Helen McEntee
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By: Minister for Justice; Helen McEntee
Published on
Last updated on
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Ceann Comhairle, Deputies,
Thank you for providing me with this opportunity to update you on my plans to reform and modernise defamation law in Ireland.
I want to ensure that our legislation addresses the challenges posed by an increasingly complex media landscape.
I strongly believe that the rule of law, and democracy itself, cannot truly flourish without robust protection for the right to freedom of expression – though of course this must always be carefully balanced, as it is under our Constitution and under 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 the 1st of 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 Deputies 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’ rights to a good name and reputation.
We need to be mindful of striking the right balance between these rights, which are protected both by our Constitution and by the European Convention on Human Rights.
It is essential that we respect the crucial role played in our democracy by a free and independent media – and by other civil society actors – in providing information and debate on matters of public 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 those rights and achieving that balance, in line with our Programme for Government commitments.
This Report considers in detail all the issues raised by submissions made to my department during our consultation process; 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.
Not only that, 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 the review, many individuals and organisations told us that using juries leads to excessive awards in defamation cases, high legal costs, unpredictable outcomes and long delays.
It is worrying that these factors are seen as having a real chilling effect on public interest reporting and on media freedom of expression.
Traditional print media is operating in an increasingly difficult environment, one where high awards and legal costs threaten the very economic viability of some national newspapers.
Both the European Court of Human Rights and our own 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 euro was reduced on appeal to 250,000 euro. 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 their 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 issue.
The Review proposes the provision of quicker, lower-cost, more accessible and more 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 would 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 whether there is scope for abuse of defamation law, including by issuing vexatious proceedings, and proposes measures to guard against this risk.
Finally, the Report makes proposals to clarify or simplify the requirements of some defences to defamation claims. These include defences which are important for public debate and investigative journalism, and respond to submissions received from the print media and the National Union of Journalists.
On the other hand, the Report also acknowledges the difficulties for individual plaintiffs in accessing justice.
Easier access to justice for individuals whose reputation is unfairly attacked is a key recommendation of this Review, which contains a number of proposals to ensure that plaintiffs have quicker, more efficient, and lower-cost access to redress.
One example of this, is 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: “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 an anti-SLAPP mechanism in Irish law, to prevent wealthy and powerful entities from the strategic and abusive use of vexatious litigation.
SLAPP stands for Strategic Litigation against Public Participation and European Commission Vice-President, Vera Jourová, launched an EU package of anti-SLAPP measures last month.
In her remarks at the launch of the package, she noted that Ireland is among the very small number of EU Member States that are already exploring the possibility of introducing anti-SLAPP protection in their national laws.
Like the Review my department has carried out, the Commission’s work seeks to strengthen protection for freedom of expression, taking account of the vital role played in our democracy by a free and independent media (and other civil society actors) in providing information and debate on matters of public interest - while respecting other relevant fundamental rights.
The proposal for a Directive will now be subject to detailed consideration by the European Council and European Parliament. We look forward to contributing to that discussion.
The Anti SLAPP recommendation in my department’s Review would allow a person to apply to the court for summary dismissal of defamation proceedings that they believe are a 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 the media, academics, the legal profession, social media companies, NGOs, and relevant State bodies.
My department also undertook analysis of the relevant judgments of the Irish superior courts, and of the European Court of Human Rights.
We scrutinised relevant EU law, including the proposed EU ‘Digital Services Act’, which includes significantly enhanced protection, enforcement, and redress at EU and national level against online content which is unlawful under national or EU law.
And we 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 really proud of the results we have produced.
Defamation is an extremely complex area of law but it is also very important – and that is why it was essential for us to take the time and effort to get this Report right.
I want to thank everyone who engaged with my department during the review process – their thoughtful and constructive contributions helped to shape this Report.
Since its publication in March, it has been really encouraging to see the broadly positive reaction to the Report, including from the National Union of Journalists 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 reform in law as soon as possible.
My Justice Plan 2022 commits to publishing the General Scheme of a Defamation (Amendment) Bill in Quarter 4 of this year.
My officials will consult in detail with the Office of the Attorney General, during the preparation of the General Scheme.
I look forward to working with all of the relevant stakeholders, including Oireachtas members, as part of the 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.