Defamation Bill slopes towards enactment

Cathaoirleach's BellThe Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) was before the Seanad again during the week. In my next post, I’ll consider some of the points made during that debate; in this post, by way of background, I want to set out the Bill’s main provisions. It aims to modernise Irish defamation law, and it is certainly an advance on what is there now. However, it is still ungenerous, and it remains to be seen whether its passage through the Houses of the Oireachtas will improve it (or, God help us, not!).

The Bill proposes to:
– remove the distinction between libel and slander (s5(1)) and provide a statutory definition of defamation (ss5(2) and 2);
– require a plaintiff to swear an affidavit verifying the facts which demonstrate the defamation (s7);
– provide for a quick determination of issues relating to the meaning of the words complained of (s13);
– allow defendants to issue apologies without admitting liability (s22) and to make lodgments in court as they can in other civil actions (s27);
– provide for a Correction Order (s28) and a fast-track Declaratory Order (s26);
– give the court more power to control damages, especially on appeal (s29);
– recast the tort of malicious falsehood (s41) and abolish the crime of libel (s34) and replace it with a much narrower offence of publication of gravely harmful statements (s35);
– provide for a one-year limitation period with a further discretionary one-year
long-stop (s37);
– establish a Press Council (s43; Sch 2); and
– reform defences (Part 3; ss14-25), including the introduction of a completely new defence of fair and reasonable publication (s24(1)).

For all that it is better than the current position, the drafting in many of the sections is often more ungenerous than it might have been:
– the removal of the distinction between libel and slander is hamfisted (rather than clearly abolishing the distinction, it merely says that libel and slander shall “be collectively described, and are referred to in this Act, as the ‘tort of defamation’â€?);
– the splitting of the definition of defamation between two sections is more awkward than it needs to be;
– the fast-track declaratory order is available only in the High Court (a plaintiff “may apply to the High Court for an order …â€?) and not in the Circuit Court, which rather defeats the purpose;
– the list of factors which may be taken into account by the High Court in the determination of damages does not include the extent to which reasonable care was exercised by the defendant in attempting to ascertain the truth of any allegation of fact prior to the publication in question, which seems to me a startling and paltry omission;
– the defences are terribly narrowly cast (especially qualified privilege, and innocent publication);
– in particular, the defence of fair and reasonable publication simply states too many hurdles. It requires publication (i) in good faith, (ii) in the course of, or for the purposes of, the discussion of a subject of public importance, (iii) the discussion of which was for the public benefit, where, in all the circumstances of the case, it was (iv) fair and (v) reasonable to publish the statement. On the one hand, the various hurdles all seem the same, with various synonyms expressing the same basic point, that the publication must have been fair and reasonable. With that there can be no cavil. But every word in a section means something, and if it is said five times, it’s not the same thing being said five times for emphasis, but five different things. The publication will therefore have to be all five, and that seems to me to set far too high a standard;
– and the Bill is fixed on a print-based mindset, ignoring internet issues, such as those relating to the defence of innocent publication or the definition of periodical.

Careful what you wish for – I have long argued that Irish defamation law is in need of modernisation. Now, I’m about to have that wish come true, and I’m still not happy! Typical. But that list of problems is quite serious. I hope that the most egregious of them can be dealt with as the Bill slopes its way through the Oireachtas on its way to eventual enactment.

Update (21 March 2007): Many of the points raised here did not feature in the Seanad debate, but an amendment to widen the scope of the declaratory order was rejected: see 186 Seanad Debates cols 792 (6 March 2007) (html | pdf).