While ISME welcomes the announcement of measures proposed to reform the Defamation Act, we are concerned they do not go far enough, and will not address the adverse finding made by the European Court of Human Rights about our defamation laws.
Recent media coverage indicates that Minister McEntee will shortly publish a report on defamation reform, which will include proposals for a Defamation Amendment Bill. Her report includes a recommendation to include anti-SLAPP provisions (Strategic Lawsuits Against Public Participation), which will be welcomed not only by the media, but by associations such as ISME which are regularly threatened with vexatious lawsuits as a result of lobbying activity. In order to be effective, an anti-SLAPP provision needs to be robust, must fully reverse the burden of proof onto the plaintiff, and should include penalisation of the plaintiff where a court finds their lawsuit to have been abusive or vexatious.
The proposal to include a harm test for “transient defamation” is also most welcome, since it will probably tackle the most frequent source of lawsuits in the retail environment. This is where defamation lawsuits arise from people alleging that they have been wrongly accused of shoplifting. The notion that someone who has been asked to open their shopping bag by a security guard should be awarded thousands of euros by our courts for defamation is patently absurd, yet it has been going on here for years. We believe this is the most common form of defamation action, and hope this will put a stop to it.
However, we remain very concerned about three key omissions from the reform proposals.
- Firstly, we understand there will be no accommodation of “fair trial rights.” One of the perverse outcomes of the current act is the award of aggravated damages where a defendant mounts a robust defence against the claim lodged against them. This is most unfair where a statement may in fact be true, but the defendant cannot access the necessary proof to prove the truth of a statement. It forces many defendants to plead guilty, even when they are not.
- Secondly, there appears to be no general requirement to prove harm. Since defamation is a “reverse onus” tort, which requires the defendant to prove themselves innocent, this alone is a very serious omission. It allows plaintiffs to sue in cases where there might be no written record, or where the wording complained of is ambiguous. If a “serious harm” test, as requested by ISME in 2019 is not to be introduced, then the Defamation Act as it currently stands will require so much amendment as to be effectively rewritten.
- Thirdly, there appears to be no proposal to cap damages. Press reports refer to “constitutional issues” with capping damages. This is legal and constitutional nonsense, and usually emanates from those corners of the legal lobby which financially exploit our current law. As ISME has advised Government for years, there is simply no constitutional impediment to the capping of damages. This has recently been affirmed by the Law Reform Commission. There is also the inconvenient fact that several pieces of primary legislation have capped damages for decades. None has ever been found to be unconstitutional. It is absurd that the courts can apply a cap on damages for life-altering catastrophic injuries, but we do not apply a cap to someone who states (subjectively) that their good name has been taken. This goes to the heart of the finding by the European Court of Human Rights in the case of Independent Newspapers (Ireland) Limited v. Ireland, which found that “Unreasonably high damages for defamation claims can have a chilling effect on freedom of expression, and therefore there must be adequate domestic safeguards so as to avoid disproportionate awards being granted.”
Even if Government does not propose a fixed nominal cap to damages, it can recommend a proportionate cap, such as the caps in the Unfair Dismissals Act and the Protected Disclosures Act, which tie compensation to the remuneration of the plaintiff.
In the absence of a cap, it is unlikely that an amended Defamation Act will survive a first appeal to the European Court of Human Rights. We therefore request that Minister McEntee addresses this flaw immediately, and before she brings an amendment bill to the Oireachtas.