Will we see Cabinet approve the drafting of a Defamation (Amendment) Bill before the end of the month?

DefamationA report by Hugh O’Connell in yesterday’s Sunday Independent suggests that the answer to the question in the title of this post is: yes, we may very well see Cabinet approve the drafting of a Defamation (Amendment) Bill before the end of the month. He reports that the Minister for Justice, Helen McEntee, will bring to Cabinet the outcome of a statutory review (including a stakeholder symposium) of the operation of the Defamation Act 2009 (also here) and a general scheme of the Heads of a Defamation (Amendment) Bill 2022 based on the review’s recommendations. This is exciting news, but I’m not going to get too carried away, because we have been here many times before. Last March, on this blog, I bemoaned the many false dawns in Irish defamation law reform. Then, in July, I posed the question “Who will come first, Godot, or an Irish Minister for Justice bearing defamation reform?”. So far, we’ve seen neither; but O’Connell’s report suggests we might just soon see the latter.

The Defamation Act 2009 had been signed by the President on 23 July 2009, and it came into force on 1 January 2010. Section 5 (also here) requires the Minister to commence a review of the operation of the Act “not later than 5 years after the passing of this Act”, and to complete that review within a year. Whether that review should have started before 23 July 2014 or 1 January 2015, successive Ministers for Justice missed both five-year anniversaries, and did not commence the review until 1 November 2016 (my thoughts for that process are here). Notwithstanding the one-year timeline specified in the Act, and despite many promises of imminent publication, we still have not seen the outcome of the review, though O’Connell’s report yesterday suggests that we may be about to. My comments last March worried that the then recently-published Department of Justice Action Plan 2021 (pdf via here) commitments to defamation law reform would be another false dawn, and those last July were skeptical that the Department could meet its new deadline that a new Scheme of Defamation could be presented to Government by the end of 2021. There were many subsequent glimmers of hope (in reverse order):

Nevertheless, nothing happened before the end of the year, or indeed before the end of last month. However, in yesterday’s Sunday Independent, Hugh O’Connell brings the most recent promise of imminent action – he reports that the long-delayed proposal to develop the general scheme of the Defamation (Amendment) Bill 2022 will be brought to Cabinet later this month by Justice Minister Helen McEntee. He has rather more detail on the outcome of the review than previous media reports, suggesting that this time, maybe, just maybe, this deadline will be met (or, at least, not missed by much). If so, according to O’Connell, the review is likely to recommend in favour of:

  • the abolition of juries in High Court defamation cases – I think this is a good idea;
  • a provision that the court must be satisfied that Ireland is the appropriate place for the case to be heard – I think this is a good idea (here, via here);
  • clarifying the defences of fair and reasonable publication (good idea), innocent publication (good idea), and honest opinion (good idea); and
  • an express power for defamation cases to be dismissed within two years of being filed if there has been no progress on it.

On the other hand, O’Connell reports that the review is likely to recommend against:

  • a general requirement for a plaintiff to show serious harm was caused by a publication of a statement (though the review does say that there could be one in certain instances) – I think that not doing so would be a bad idea; and
  • a statutory cap on damages that a court can award, for constitutional reasons – I think that not doing so would be a bad idea, but I shall wait to see the constitutional objections in the report.

Penultimately, if the review had recommended provisions to control strategic lawsuits against public participation (SLAPPs), I would have expected O’Connell to have said so. Its absence from O’Connell’s report suggests that it is also absent from the review. If so, I think that not doing so would be a bad idea.

Finally, O’Connell reports that the report notes that “reforms are needed to address the new issue of online defamation, particularly via social media, which has radically changed the potential range and spread of defamatory material”, but he does not tell us if the review has suggested what such reforms might be, or has indicated that more work is needed and accordingly kicked the can down the road a bit more on this issue.

So, will we see Cabinet approve the drafting of a Defamation (Amendment) Bill before the end of the month? As a well-known libel defendant might have sung, well, we might now, Michael, so we might! Indeed, we may very well just be on the cusp of the next stage of defamation reform at Irish law; but the process is proceeding at a glacial pace; and, even if a proposal to develop the general scheme of a Defamation (Amendment) Bill 2022 is be brought to Cabinet later this month, I would not expect that development thereafter to proceed at anything other the same glacial pace. It will be long time before a Defamation (Amendment) Act is in force, but Cabinet approval for its drafting would be a very welcome next step.