Category: Defamation Act 2009

Better late than never – the Defamation (Amendment) Bill 2024 is finally here

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| Defamation, Defamation, Defamation (Amendment) Bill 2024, Defamation Act 2009

The Canon's Yeoman in the Ellesmere manuscript of Geoffrey Chaucer's Canterbury Tales

1. Introduction
The origins of the aphorism “better late than never” may lie in Livy’s History of Rome (c27-9 BCE). Its first recorded use in English seems to be in Chaucer’s Canterbury Tales (c1387-1400); in The Canon’s Yeoman’s Tale, the Yeoman (pictured right, from the Ellesmere Chaucer) says ([1410]-[1411]):

Lest ye lese al; for bet than nevere is late.

Lest you lose all; for late is better than never.

Nevere to thryve were to long a date.

Never to thrive would be too long a time.

No doubt there are scholars of Latin or Middle English in the Department of Justice, as the Defamation (Amendment) Bill 2024, long long in the making, has finally arrived, better late than never, though it is very very late indeed. On 1 January 2010, the Defamation Act 2009 came into effect, modernising Irish defamation law and putting it largely on a statutory footing. Section 5 provided for a review of the Act to commence within five years, and to be completed within a further year. In the first of many pushed deadlines, the review process commenced in November 2016. After extensive consultation, in March 2022, the Department of Justice published a Report of the Review of the Defamation Act 2009 (the Report); in March 2023, the Department published a Draft General Scheme of the Defamation (Amendment) Bill (the Heads); in September 2023, the Joint Oireachtas Committee on Justice published their Report on Pre-Legislative Scrutiny of the General Scheme of the Defamation (Amendment) Bill (pdf) (the PLS); and today, the Defamation (Amendment) Bill 2024 and accompanying Explanatory Memorandum (pdf) have been published on the Oireachtas website.…

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Defamation cases should routinely be commenced in the Circuit Court and not the High Court, and the forthcoming Defamation (Amendment) Bill 2024 should be amended accordingly

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| Defamation, Defamation, Defamation (Amendment) Bill 2024, Defamation Act 2009

Dept of Justice, 51 St Stephen's Green, Dublin; via wikipediaIt is widely reported this morning that the Government has approved the publication of the long-awaited, much-delayed, and eagerly-anticipated Defamation (Amendment) Bill 2024 (see, eg, Catherine Sanz, Business Post | Cianan Brennan, Irish Examiner | Shane Phelan, Irish Independent | Brynmor Pattison, Irish Sun | Cormac McQuinn, Irish Times (here and here) | Orla O’Donnell, RTÉ | Steven Fox, TheJournal.ie).

It will deal with issues such as the abolition of juries, the control of strategic litigation against public participation (SLAPPs), live broadcasts, transient retail defamation, support for alternative resolution of defamation disputes, identifiability of anonymous online defamers, the prominence of corrections, and improvement of the defence of reasonable publication. A Government press release explains that

Minister for Justice Helen McEntee TD and Minister of State for Law Reform James Browne TD have received Government approval to publish the Defamation (Amendment) Bill 2024. The full text of the Bill will be published on the website of the Houses of the Oireachtas next week. …

Minister McEntee said:

Our democracy needs defamation laws that meet the challenges of an increasingly complex media landscape. The overarching aim of this Bill is to safeguard freedom of expression, the right to protection of good name and reputation, and the right of access to justice.

…

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The next steps in defamation reform, including the development of an anti-SLAPP mechanism, limp slowly closer – updated

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| Defamation, Defamation, Defamation Act 2009

Murphy, Costello, Harris, via Oireachtas website

The written answer to two Parliamentary Questions earlier this week (on Tuesday 21 February 2023) provides hope for imminent publication of the long awaited the General Scheme of a Defamation (Amendment) Bill, including the introduction of an anti-SLAPP mechanism.

Deputy Catherine Murphy TD (pictured above left) asked the Minister for Justice if his Department has been engaging with the European Parliament in relation to the proposed directive on Strategic Lawsuits against Public Participation; and to detail what anti-SLAPP mechanisms his Department is considering for domestic legislation.

Deputy Patrick Costello TD (pictured above centre) asked the Minister for Justice the status of the proposed introduction of an anti-SLAPP mechanism in Irish law (details supplied), as committed to in May 2022; and if he will make a statement on the matter.

Minister for Justice Simon Harris TD (pictured above right) took both questions together and replied (links, and emphasis, added):

On 1st March 2022, the Government approved publication of the Report of the Review of the Defamation Act 2009 and the development of a General Scheme of a Defamation (Amendment) Bill on foot of the Report.

As the Deputy has noted, a key recommendation in the Report is to introduce a new ‘anti-SLAPP’ mechanism – referring to Strategic Lawsuits against Public Participation – to allow a person to apply to court for summary dismissal of proceedings that he/she believes are a SLAPP.

…

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Blooming Lawyers: from Sadgrove v Hole, via Palles CB and Ulysses, to Facebook

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| Christopher Palles, Defamation, Defamation, Defamation Act 2009, James Joyce

Palles and Joyce (images via Wikipedia, edited)I was reminded (plug alert) of my piece “The Aeolus Episode in Ulysses and the Freeman’s Journal: Chief Baron Palles and the law of defamation”, chapter 12 in Oonagh B Breen & Noel McGrath (eds) Palles. The Legal Legacy of the last Lord Chief Baron (Four Courts Press, 2022) (noted here), when I had the pleasure of reading the recent re-publication of Brian McMahon’s article (first published: Law Society Gazette, October 2004, 12), focusing on Dublin’s legal fraternity in Ulysses by James Joyce (pictured left, on the right).

To celebrate the 100th anniversary this year of the publication of Ulysses by Syliva Beach in Paris, this month’s Law Society Gazette (October 2022 (pdf), 41) has reproduced McMahon’s excellent and entertaining article.

Here are some extracts from it about three minor elements of the book that raise interesting issues of a legal nature:

James Joyce’s Ulysses is set in Dublin on 16 June 1904, and its two principal characters are Leopold Bloom and Stephen Dedalus. Bloom is the novel’s hero, and his journey around Dublin echoes Odysseus’ journey in Homer’s Odyssey. …

… Martin Cunningham tells … Bloom, how Reuben J’s son tried to commit suicide by jumping into the Liffey, but was saved by a workman who was rewarded with a florin.

…

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

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| 2016-17 Reform, Defamation, Defamation, Defamation Act 2009

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 | TheJournal.ie).

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”.…

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The truth, pure and simple, as a defence to defamation claims after Depp v NGN

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| Defamation, Defamation, Defamation Act 2009

Johnny Depp, Amber Heard, Sun masthead, all pix via wikipediaThe truth, as Oscar Wilde has Algernon Moncrieff remark to Jack Worthing in Act I of The Importance of Being Ernest, is rarely pure and never simple. Nowhere is this more evident than in a defamation courtroom. At common law, the defence of justification to a claim for defamation averred that the words complained of, in their natural and ordinary meaning, were true in substance and in fact. For example, in Irving v Penguin Books Ltd [2000] EWHC QB 115 (11 April 2000), American historian Deborah Lipstadt estabished that holocaust-denier David Irving had deliberately distorted evidence relating to the Holocaust, and thus successfully relied on the defence of justification to defeat Irving’s claim of defamation. In Ireland, the common law has been replaced by section 16(1) of the Defamation Act 2009 (also here), which provides that the defence of truth is made out where the defendant proves “that the statement in respect of which the action was brought is true in all material respects”. In England, the equivalent statutory provision is much more straightforward: section 2(1) of the Defamation Act 2013 provides that it “is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true”.…

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Is the Press Council system working?

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| Defamation Act 2009, Defamation Bill 2006, Press Council

Press Council and Ombudsman logoWith the recent publication by the Press Council and the Office of the Press Ombudsman of their Annual Report 2010 (Report (pdf) | Press Release), it is an opportune time to consider whether the system of press self-regulation by those two bodies is working. I think that, overall, the answer must be yes. Within the remit afforded to the Ombudsman and Press Council, they are working very well indeed. The Ombudsman and Council are energetic in spreading the word about the speedy form of redress which they operate; the growing numbers of member-periodicals show that the industry has embraced the system; and the numbers of complaints show that an increasingly-aware public are taking advantage of it. Apart from the figures, 2010 saw two very important developments: the recogition of the Ombudsman and Council pursuant to the Defamation Act, 2009 (also here); and the extension of their remit to purely online publications.

As the Council’s new Chairman, Dáithí O’Ceallaigh, notes in his Introduction to the Report, the year covered by the Report began with the coming into force of the Defamation Act, 2009, section 44 and Schedule 2 of which allowed for the formal recognition of the Press Council, which duly followed in April:

This has been no mere formality, but a significant and public recognition of the degree to which these new structures, since their institution in 2007, have met the exacting requirements laid down for recognition in the Act, and have contributed to the climate of enhanced accountability and public service within which our press industry operates.

…

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Prior restraint and permanent injunctions in defamation cases – updated

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| Defamation, Defamation Act 2009, Freedom of Expression, prior restraint

Irish Daily Star on Sunday MastheadIn Watters v Independent Star [2010] IECC 1 (03 November 2010), the first reported judgment on the Defamation Act, 2009 (also here), Matthews J granted the plaintiff a declaratory order pursuant to section 28 of the Act (also here) that an article published by the defendant was defamatory, and he made a further order pursuant to section 33 of the Act (also here) prohibiting the newspaper from re-publishing the defamation.

In an earlier post (also here), I have already looked at some issues arising from this decision. Another critical aspect of Matthew J’s judgment was that, although the plaintiff was a convicted criminal, he nevertheless possessed a residual reputation which was damaged by the newspaper’s allegations. Of course, evidence of a plaintiff’s general bad reputation is admissible in evidence in mitigation of damages (see section 31(4)(g) and section 31(6)(a) of the Act (also here); see also Hill v Cork Examiner Publications [2001] 4 IR 219, [2001] IESC 95 (14 November 2001) and the recent decision of Tugendhat J in Hunt v Evening Standard [2011] EWHC 272 (QB) (18 February 2011)). However, this is a long way from saying that such a general bad reputation renders a plaintiff libel-proof.…

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