Irish defamation reform: SLAPPs, false dawns, and silver linings

Commissioner ReyndersIn an interview in this morning’s Irish Times, the EU Commissioner for Justice Didier Reynders (pictured right) raised serious concerns about the operation of Ireland’s defamation laws:

Ireland’s defamation laws are being used to ‘pressure journalists’ – EU commissioner

Low bar for lawsuits in Ireland ‘raises concerns’ over freedom to expose corruption

Ireland’s defamation laws should be reviewed as they may suppress the ability of the media to expose corruption … Irish defamation laws are notoriously strict, providing a low bar for lawsuits against journalists and media organisations that are often used to put pressure on journalists.

He made the same points later this afternoon when he addressed the Joint Oireachtas Committee on European Union Affairs. In his opening statement (draft here; pdf) he repeated that “Ireland’s defamation laws raise concerns as regards the ability of the press to expose corruption” (p6) and that “the frequent use and high costs of defamation cases raise concerns” (p7; update: reported Irish Examiner | Irish Independent |

In questions from members of the Committee, Senator Michael McDowell commented that he had been the Minister for Justice who started the reform in the early 2000s (full disclosure, I was on the Group that advised him in this regard), and he agreed with the Commissioner that “Irish defamation law is a little bit suffocating of investigative journalism” and that there “is scope for further reform”. He gave the particular example of the working of the presumption of falsity but his remarks were more general, and the Commissioner welcomed his comments. (In due course, a transcript of the debate will be available via here; and a video of the proceedings will be available via hereupdate: the material is now at those links).

On his website, the first of Commissioner’s Reynders responsibilities is described as “[e]nsuring the rule of law is upheld, including with the European Rule of Law Mechanism”. This mechanism established annual country-by-country reports on the Rule of Law in the European Union. The 2020 Report for Ireland amplifies Commissioner Reynders’s concerns about defamation:

Ireland’s defamation laws raise concerns as regards the ability of the press to expose corruption. … The frequent use and high costs of defamation cases raise concerns. … Frequent defamation suits, high costs of defence and high damages awarded by Irish courts are seen as an inducement to self-censorship and a constraint to media freedom, also to the detriment of the fight against corruption. …

Both the Report and the Commissioner note that a review process of the Defamation Act 2009 (also here) is ongoing at present. But it has been beset by delays. A false dawn is a transient light which precedes the rising of the sun by about an hour; metaphorically, it is a promising situation which comes to nothing. We have seen many false dawns on the road to defamation reform in Ireland; last week, we saw what may be one more. The current, long-delayed, review of the 2009 Act, is to be delayed even further. In the recently-published Department of Justice Action Plan 2021 (pdf via here) there are many ambitious goals, and 240 objectives in total, gathered under 5 headings:

Under the goal to “Improve access to justice and modernise the courts system”, we learn that “[p]roposals to update our defamation laws will strike the right balance between reputation and free speech” (p18). To “[s]upport our economy and society through regulatory, licensing and civil law reform” (p23), objective 100 is to “[r]eview and reform defamation laws, to ensure a balanced approach to the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice” (p25). To achieve these ends, the Department will “[c]omplete and publish [a] statutory review of Defamation Act 2009” during the first quarter of 2021 (objective 100.1; p25) and will “[p]repare [a] Scheme of Defamation (Amendment) Bill” during the fourth quarter of 2021 (objective 100.2; p25). Top Dublin law firm A&L Goodbody welcomed the announcement, but I’m less sanguine. We have seen such promises before; and they have all come to naught. Given how long we have been waiting, I don’t see why we need two stages of implementation, a “review” before the end of the first quarter of 2021 (ie, before the end of this month) and a draft Bill before the end of the year. I’m not the best at meeting deadlines; I’m often with Douglas Adams on this – he wrote that he loved the whooshing noise they made as they went by. So I’m not going to criticise the Department for not meeting its deadlines. I am confident that we will eventually have substantive reform, and I am hopeful that it will have been worth the wait. Nevertheless, forgive me if I’m impatient now, and if I advise Commissioner Reynders not to hold his breath.

Meanwhile, in Scotland, the Defamation and Malicious Publication (Scotland) Bill was passed by the Scottish Parliament on 2 March 2021, and Royal Assent is awaited. The Bill implements all the substantive recommendations that the Scottish Law Commission made in their Discussion Paper (No 161; March 2016) and Report (No 248; December 2017) on Defamation. So, in the same period that we have been waiting for the Irish review to commence, Scotland has successfully commenced and completed a full review of defamation law. Our late review cannot come too soon.

Further control of damages, and more appropriate defences, as in the Scottish Bill, would meet many of the concerns expressed by Commissioner Reynders and the Commission. But one issue that is not addressed in that Bill would go a long way to reinforcing similar reforms in Ireland. Many defamation case are intended chill investigative journalism and silence critics, by burdening them with the time, labour and expense of defending the cases. In such cases, plaintiffs do not necessarily expect to win; they simply wish to litigate the defendant into submission; and their pockets are deep enough to achieve this goal. Such cases have been criticised as Strategic Lawsuits against Public Participation (SLAPPs), and many jurisdictions have introduced legislation to control them (anti-SLAPP legislation). Many US States have such legislation, and last December, Article 19 co-ordinated a submission (pdf) to the EU Commission from a wide range of European civil society organisations, recommending a Directive on Providing Protection from Abusive Lawsuits Against Public Participation.

If Commissioner Reynders does not proceed down that road, then the delay in the current Irish review process may prove providential. Every cloud has a silver lining. Given that we must wait until the end of the year for a draft Bill, there is plenty of time to ensure that, when the text of the Bill finally properly dawns, it includes appropriate anti-SLAPP provisions. A good precedent is provided by the law in Ontario. There, anti-SLAPP motions were introduced in 2015 by the Protection of Public Participation Act, 2015 (inserting new sections 137.1 – 137.5 into the Courts of Justice Act 1990). In March 2019, British Columbia enacted the Protection of Public Participation Act, 2019, which is virtually identical to the Ontario position. (In 2009, Quebec had introduced the first anti-SLAPP legislation in Canada, but its civilian procedural heritage is very different from the common law position in Ontario and British Columbia, which makes the latter provinces’ legislation a better precedent for Ireland).

The Ontario and British Columbia Acts establish a three-stage test to determine whether defamation actions should be dismissed as SLAPPs. First, the motion is available where the defamation action arises from an expression made by the defendant “that relates to a matter of public interest”. Once this public interest threshold is established, the judge is required to order dismissal unless the plaintiff meets the second and third tests. Second, the plaintiff must establish “grounds to believe” that the proceeding has “substantial merit” and the defendant has “no valid defence”. And, third, if this merits-based test is established, the plaintiff must also establish that the harm resulting from the expression is “sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression”. On this stage of the test, the defendant’s motives in publishing the expression are relevant to weighing the value of the expression against the harm to the plaintiff. In its Report on Defamation Law in the Internet Age (March 2020; pdf), the Law Commission of Ontario made wide-ranging recommendations to reform the province’s defamation law; they concluded that the anti-SLAPP legislation was important and working well, and they did not recommend any further reform to it. In 1704604 Ontario Ltd v Pointes Protection Association [2020] – SCR —, 2020 SCC 22 (CanLII) (10 September 2020) and Bent v Platnick [2020] – SCR —, 2020 SCC 23 (CanLII) (10 September 2020), the Supreme Court of Canada powerfully endorsed the importance of protecting freedom of expression on matters of public interest, and held that Ontario’s anti-SLAPP provisions should be interpreted to protect that expression and safeguard the fundamental value that is public participation in democracy.

To turn a false dawn into a silver lining, the Department of Justice should follow the Ontario lead and introduce anti-SLAPP provisions in its forthcoming defamation reform proposals. If it does so, then Commissioner Commissioner Reynders’ visit to Ireland next year to present and discuss the 2021 European Rule of Law Mechanism Report for Ireland may generate headlines about something other than stalled defamation reform.