ISME has given a qualified welcome to the publication of the Defamation (Amendment) Bill 2024 on 2nd August. While ISME has campaigned for many years for comprehensive defamation reform, and while it welcomes the publication of this bill, it continues to have reservations about the lack of ambition for material reform, and the failure to address several key issues.
ISME welcomes a number of key elements of the Defamation (Amendment) Bill 2024, including:
- The long-overdue abolition of juries in defamation actions.
- The introduction of an expanded definition of qualified privilege to address the vexatious use of defamation actions in retail settings.
- The proposals regarding security for costs, and applications to strike out claims in SLAPP cases are most welcome; however, we will need to see these rigorously applied by the courts.
“SLAPP cases in particular are very damaging and are an effective abuse of the legal process, where the primary objective is to harass, intimidate and apply undue and improper psychological and financial pressure against one’s opponent. It will be a great day if they are ended.” said Neil McDonnell, CEO, ISME.
However, these measures in the Bill, while welcome, fall short of the reform ISME has sought over a number of years and which it will continue to campaign for. The small and medium enterprise representative body has comprehensively justified the reasons for the level of reform sought.
- The failure to introduce a serious harm test is a significant, material, and unjustified failure. The refusal by the Department of Justice to introduce a harm test is equivalent to saying “we will continue to allow people, against whom you have done no wrong, to sue you in the courts; but allow you to claim qualified privilege when mounting a defence against them. This will cost you tens of thousands of euro, which you will not subsequently recover even if you win.” This is as nonsensical as allowing an action for personal injuries without the need to show one has been injured.
- The absence of a serious harm test gives a concerning insight into attitudes within the Department of Justice to freedom-of-expression rights enumerated both in the Irish Constitution and in the European Convention on Human Rights. In July, the Department articulated its view that insertion of a serious harm test could compromise a plaintiff’s constitutional right of access to justice. It is not at all clear that this view is well grounded in constitutional law, and it does not appear to have the support of academic lawyers. It also seems calculated to deny defendants a right of access to justice. The absence of a serious harm test leaves the door open to claimants to initiate defamation proceedings on the most subjective, vexatious and trivial of grounds, without having to show they were negatively affected in any way. The absence, as well as the absence of proposed reforms to stop libel tourism, will mean Irish courts will continue to host nonsensical defamation proceedings into the future.
- ISME notes and welcomes the inclusion of a harm test for defamation actions by corporate bodies.
- The anti-SLAPP provisions of the amendment are most welcome, long overdue, but remain insufficient. As ISME has previously advised the Minister for Justice, there must be explicit protection for complainants to the Legal Services Regulatory Authority (LSRA). Despite the fact that complaints to the LSRA are protected by absolute privilege, this has not stopped some unscrupulous lawyers issuing defamation threats against complainants to the LSRA. This will continue until the Defamation Act is amended to preclude such actions.
- The incoming EU Directive on countering SLAPP suits will require the State to enact penalisation measures against plaintiffs who issue SLAPP them. ISME has previously advised the Department of Justice to set compensation for defendants at three times the damages sought by the plaintiff, or the maximum jurisdiction of the Court in which the claim is brought, whichever is the greater. This level of award is consistent with existing legislative provisions under the Protected Disclosures Act 2014.
- The time has come to introduce a legislative cap on damages. ISME has recommended that the maximum award for general damages in most defamation cases be set at a statutory maximum of €75,000, with some exceptions. The guidance on damages issued by the Supreme Court in the Irish Aviation Authority case is ill-considered and is totally inconsistent with the Judicial Council’s own guidance on damages for serious and catastrophic injuries.
- While the expansion of qualified privilege to cover defamation in retail settings is welcome, ISME has sought the introduction of similar protections against spurious claims brought before the Workplace Relations Commission (WRC), which has become a new forum for speculative actions against retailers in particular.
- Consistent with guidance previously expressed by the European Court of Human Rights and by the UN, the defence of truth must be reformed. Irish courts currently hold that, if a robust defence is lodged, the defendant has aggravated the damage to a person’s reputation. This is particularly unfair where a statement may actually be true, but the defendant does not have access to the necessary proof to prove the truth of a statement. It coerces defendants to plead guilty, even if they are not, and denies persons a right to an adversarial defence. This area must be reformed.
While not an area for consideration under the Defamation (Amendment) Bill 2024, ISME is calling for urgent action to address legal costs.
“The real power of defamation actions lies not in the ability to extract damages from a defendant, but the ability to inflict large costs upon them. This constitutes a real denial of access to justice for defendants and must be reformed,” said Neil McDonnell. “The minority report of the Administration of Civil Justice (Mr Justice Kelly) Report gives a clear indication of the necessary direction of reform in this regard.”
(Ends)
Issued on behalf of ISME, by Heneghan
For information
Neil McDonnell / ISME – (087) 299 5658 (available for comment)
Nigel Heneghan – (086) 258 7206 – nigel@heneghan.ie
