The Tánaiste and Minister for Justice and Equality is conducting a review of the operation of the Defamation Act 2009 (also here). No doubt the focus of media submissions will be the level of damages, and exhibit A in those submissions will unquestionably be the decision of the Supreme Court in Leech v Independent Newspapers [2014] IESC 79 (19 December 2014). A report published today by the International Press Institute provides an excellent statement of the argument. In this post, I want to summarize and respond to some of the issues in the Report, and make three practical suggestions for reform of the law of defamation relating to damages.…

Read More »

1. Introduction
The decision of Binchy J in Muwema v Facebook Ireland Ltd [2016] IEHC 519 (23 August 2016) demonstrates that, on the question of the liability of internet intermediaries for defamatory posts on their platforms, an important part of the answer is provided by application of the defence of innocent publication provided in section 27 of the Defamation Act 2009 (also here).

Binchy J granted a Ugandan lawyer a Norwich Pharmacal order requiring Facebook to identify the holder of a pseudonymous account which, the lawyer alleged, contained posts that were defamatory of him. However, Binchy J declined to grant injunctions requiring Facebook either to remove allegedly defamatory posts from the account or to prevent the material in them from being re-posted, on the grounds that Facebook could rely on the defence of innocent publication in section 27 of the 2009 Act and on the hosting immunity conferred by Regulation 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 (SI No 68 of 2003) (transposing Article 14 of the e-Commerce Directive Directive 2000/31/EC into Irish law).

He came to that conclusion, especially as regards section 27, with some unease, and he doubted very much if that consequence was intended by the Oireachtas ([65]).…

Read More »

In Northern Ireland, the Minister for Finance has just published a Review of the Law of Defamation, prepared for it by Andrew Scott (Associate Professor of Law, LSE). Prof Scott had prepared a consultation paper for the Northern Ireland Law Commission (NILC) in November 2014. The consultation period closed on 20 February 2015. The NILC itself closed on 31 March 2015. So Prof Scott’s final Report (pdf) was submitted directly to the Ministry for Finance, which has just published it. The Report builds on the work of the NILC, draws on the consultation responses that it received, assesses the recent experience of the law of defamation in England and Wales under the Defamation Act 2013, and sets out recommendations for reform of the law of defamation in Northern Ireland. Most of the recommendations require legislation by the Northern Ireland Assembly, so a Bill to this effect is included as Appendix 1 to the Report. A second draft Bill that would merely emulate the 2013 Act in Northern Irish law is included as Appendix 2.

The Report recommends that, to a significant extent, measures equivalent to the provisions of the 2013 Act should be introduced into Northern Irish law. However, one of the substantial changes from the 2013 Act relates to the proposed new defence of honest opinion.…

Read More »

All four jurisdictions in Great Britain and Ireland have engaged in reforming defamation law over the last decade. The Republic of Ireland and England and Wales have already enacted new Defamation Acts, while the Northern Irish and Scottish Law Commissions are currently working on reform proposals. Indeed, the Irish Law Reform Commission has recently been invited by the Attorney General to consider a very net issue relating to defamation law and court reporting.

Against this backdrop, the Private Law Discussion Group in the School of Law, Trinity College Dublin, will host a public event on defamation law reform in Great Britain and Ireland, from 17:30 to 19:00 on Friday 1 April in Neill Theatre, Trinity Long Room Hub, Trinity College Dublin (map).

The group is delighted to welcome Dr Eric Descheemaeker (pictured above left), of the School of Law, University of Edinburgh, who will examine selected provisions of the Irish Defamation Act 2009 (also here) against the wider background of defamation reform in the British Isles. The common substrate of these four systems makes it especially interesting to compare their approaches on a number of issues. Dr Eoin O’Dell, of the School of Law, Trinity College Dublin, will then respond to the issues raised in Dr Descheemaeker’s analysis.…

Read More »