The Tánaiste and Minister for Justice and Equality has announced a review of the operation of the Defamation Act 2009 (also here), and is now inviting contributions and submissions by 31 December 2016. This is excellent news.
According to the announcement on the Department’s website, the aim of the review is:
– to promote an exchange of views and experiences regarding the operation in practice of the changes made by the 2009 Act,
– to review recent reforms of defamation law in other relevant jurisdictions,
– to examine whether Irish defamation law, and in particular the Defamation Act 2009, remains appropriate and effective for securing its objectives: including in the light of any relevant developments since 2009,
– to explore and weigh the arguments (and evidence) for and against any proposed changes in Irish defamation law intended to better respond to its objectives, and
– to publish the outcomes of the review, with recommendations on appropriate follow-up measures.
Interestingly, the review excludes the blasphemy provisions of the Act (sections 36 and 37), because the issue will be the subject of a constitutional referendum, as provided in the Programme for a Partnership Government. Moreover, the review will take into account any relevant recommendations of the recent Report of the Law Reform Commission on Harmful Communications and Digital Safety.
The Press Council of Ireland welcomed the review and confirmed that it will be making a submission, as has NewsBrands Ireland, the representative body for national newspapers. Similarly, the NUJ told the Irish Times that the “review should be seen as a welcome step for all citizens. It must be a review aimed at enhancing freedom of expression rather than simply a means of reducing defamation costs”. Shane Phelan, in the Irish Independent, also welcomed the
… long-overdue review of Defamation Act, amid continuing concern the size of libel awards in Ireland are having a chilling effect on the media’s role as a watchdog for the public.
This is not the first time that an INM title has argued that the 2009 Act has brought about only limited changes. NewsBrands regularly make a similar point. Both arguments are bolstered by reference to the €1,250,000 damages award in Leech v Independent Newspapers  IESC 79 (19 December 2014). However, although libel damages are indeed still high, this focus is misconceived. That case was decided on the basis of the law as it applied before the Defamation Act 2009, which introduced a whole range of reforms to meet the concerns expressed by INM and NewsBrands. Their arguments would be stronger if they focussed on the reality of the application of the Act and not on an objectionable outcome produced by the unreformed pre-Act common law.
The review is indeed long-overdue, and much to be welcomed. But arguments against the pre-Act law by those who are advocating for further reform do their case no favours. Instead, I hope that the submissions make strong arguments in favour of coherent and effective reform of our libel laws.