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Category: 2016-17 Reform

Defamation reform will go to Cabinet tomorrow – and it will include anti-SLAPP provisions! — Updated: it’s been postponed by a week

21 February, 202223 February, 2023
| 2 Comments
| 2016-17 Reform, Defamation, Defamation, Libel tourism

Helen McEntee (27 June 2020) via flickrBy way of update to my previous post wondering whether we will see Cabinet approve the drafting of a Defamation (Amendment) Bill before the end of the month, it seems increasingly likely that the answer is: yes, we will, and may even see it tomorrow. Both Mark Tighe in yesterday’s Sunday Times (sub req’d), and Jennifer Bray in today’s Irish Times, report that Minister for Justice, Helen McEntee (pictured right) will bring a package of proposals for reform of Ireland’s defamation laws to Cabinet tomorrow. Shane Phelan has a similar report in the Sunday Independent; and Elaine Loughlin has a similar report in the Irish Examiner.

This week’s reports are similar to those of Hugh O’Connell in the Sunday Independent a week ago as noted in my previous post, with one very important addition. The proposed reforms follow on from a statutory review of the operation of the Defamation Act 2009 (also here) that was probably completed in 2020 but has yet to be published; and, in my post on O’Connell’s report, I commented that if the review had recommended provisions to control strategic lawsuits against public participation (SLAPPs), I would have expected O’Connell to have said so.…

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

14 February, 202222 February, 2022
| 1 Comment
| 2016-17 Reform, Defamation, Defamation

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.…

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Who will come first, Godot, or an Irish Minister for Justice bearing defamation reform? – updated

20 July, 202129 July, 2021
| 2 Comments
| 2016-17 Reform, Defamation

Godot by O'SullivanTwo years ago, the EU established the European Rule of Law Mechanism as a process of dialogue on rule of law issues between the EU institutions, the Member States, and civil society. 2020 saw the first of the annual reports. One of the issues highlighted in the report for Ireland related to the long-stalled process of defamation reform. In the intervening year, nothing has happened on the issue (understandably: there’s been a pandemic). However. it does feature in the Department of Justice Action Plan for this year, so the Commission, regarding the glass as half-full, has chosen to accept that at face value, and to welcome the prospect of reform before the end of the year:

… Amendments to the Defamation Act, foreseen for adoption in the coming months, are expected to have a positive impact on the operation of journalists. … Following the announcement of the plans to revise the 2009 Defamation Act111, the Irish Government is finalising a statutory review. A new Scheme of Defamation could be presented by the end of 2021. As highlighted by stakeholders112, the current regime enables to impose a disproportionately high amount of damages for defamation, which can have a negative impact on journalistic freedom.

…

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

9 March, 202119 March, 2021
| 3 Comments
| 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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Still kicking the can on defamation reform after four years

1 November, 20201 November, 2020
| 3 Comments
| 2016-17 Reform, Defamation

Today is the fourth anniversary of the commencement of the Department of Justice’s current review of Ireland’s defamation laws. Earlier this week, a newspaper leader and a blogpost provided updates on where we are on our slow boat to defamation reform. The Defamation Act, 2009 (also here) passed all stages in the Oireachtas on 9 July 2009; it was signed into law by the President on 23 July 2009; and it – eventually – entered into force on 1 January 2010. Section 5 of the Act provides that the Minister for Justice had to commence a review of its application within 5 years after the passing of the Act, and had to complete that review within a year. 2014 and 2015 came and went, and no review had commended by 9 July 2014, 23 July 2014, or 1 January 2015. Eventually, four years ago today, on 1 November 2016, the Department of Justice commenced a review of the Act, and launched a consultation process to inform the review. The submissions are available here (my thoughts are here). Having started a few years late, it was too much to hope that it would be completed within a year.…

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Man wins ‘fleeting defamation’ case and is awarded €500 – should the law of defamation really concern itself with such a trifle?

12 December, 201910 January, 2022
| 1 Comment
| 2016-17 Reform, Defamation

Christmas trifle; via FlickrThe latin maxim “de minimis non curat lex” is usually translated as “the law does not concern itself with trifles”, meaning the courts will not consider trifling matters. Christmas may be the time for trifles (like the Christmas trifle pictured left), but the Courts are not the place for them. I was reminded of the maxim today when I read the headline that a “Man wins ‘fleeting defamation’ case against Luas and is awarded €500“. The judge is reported (here and here) to have found that:

there was a “fleeting defamation” … but, “having regard to the fact it was almost immediately expunged”, he could not find any lasting damage to his reputation or good name. In the circumstances, he awarded nominal damages of €500 [plus costs] … There was a “momentary defamation” which was almost immediately corrected such that people in the vicinity could not have reasonably formed any lasting adverse opinion of the plaintiff, …

Given the trifling sum of nominal damages, the plaintiff is lucky to have received his costs. Even more so, in my view, is he lucky to have been successful at all. I don’t think that the law of defamation should be concerned with such trifles.…

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It’s time to abolish juries in defamation cases

28 September, 201729 September, 2017
| 1 Comment
| 2016-17 Reform, Defamation

The Jury, by John Morgan, via WikipediaLibel cases in England and Wales are “better off without juries”, according to Sir Mark Warby, the High Court judge with responsibility for the Media and Communications List of the Queen’s Bench Division. As reported yesterday in the Brief, the legal newsletter of The Times, he was speaking on Tuesday at the London conference of the Media Law Resource Centre, an American organisation. He said that he “does not regret the passing of the jury at all”, and he pointed out (pdf) that there are many advantages to the “virtual abolition” of juries in defamation cases:

It has removed the territorial disputes that quite often used to arise, over whether a given issue is within the province of the judge, or that of the jury. In addition, this reform has all but eliminated the practice of arguing the same point to different threshold standards on different occasions. It is now possible for many more cases to reach a final resolution more economically by early judicial decisions on key issues of fact, or mixed issues of law and fact.

In England and Wales, section 11 of the Defamation Act 2013 provides that defamation actions are to be tried without a jury unless the court orders otherwise.…

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Reform of the law of defamation – the defence of fair and reasonable publication

6 January, 20173 October, 2023
| No Comments
| 2016-17 Reform, Defamation

Hurdles via flickrSection 26 of the Defamation Act 2009 (also here) introduced a new defence of fair and reasonable publication into Irish defamation law. In Meegan v Times Newspapers Ltd [2016] IECA 327 (09 November 2016) Hogan J for the Court of Appeal (Finlay Geoghegan and Peart JJ concurring) explained that the

section is clearly designed to provide a defence for publishers who show that they acted bona fide and that the publication was fair and reasonable having regard, in particular, to the matters set out in section 26(2) of the 2009 Act. Section 26 may be regarded as an endeavour by the Oireachtas to move away in some respects from the strict liability nature of the common law tort of libel and to introduce – in, admittedly, some specific and limited respects – a negligence based standard in actions for defamation under the 2009 Act. ([2016] IECA 327 (09 November 2016) [10])

For all that section 26 is a centre-piece of the reforms worked by the 2009 Act, it is, in my view, a legislative dead letter. It is over-complex, placing far too many hurdles in the way of a successful invocation. Meegan illustrates the point. The plaintiff garda claimed that she had been defamed by the defendant’s allegations that she had supplied sensitive information to a paramilitary group.…

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Hi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.


“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.


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