Still kicking the can on defamation reform after four years

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. It wasn’t. Last November, more than three years later, the Department of Justice held a symposium on the reform of Ireland’s defamation laws and the amendment of the 2009 Act. The Minister expected to receive the report by the end of March 2020 with a view to his bringing legislative proposals to Government in early course.

However, a general election intervened, so that deadline was missed too. Fine Gael’s manifesto (pdf, p94) acknowledged that “it is essential that our defamation law are fair and proportionate” and they promised to “conclude the review of the Defamation Act 2009 quickly” and to “bring forward legislation on foot of that review”. The Green Party’s manifesto (pdf, p29) similarly promised to “adjust defamation legislation to protect the creators and publishers of legitimate critical, satirical, and parody content”. The Fianna Fáil manifesto was silent on the issue. Nevertheless, with two of the three parties in the current coalition government in favour of reform, it is no surprise that their Programme For Government – Our Shared Future (June 2020) (pdf) provides (at p122) that the Government will

review and reform defamation laws, to ensure a balanced approach to the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice.

Against this backdrop, Wednesday’s Irish Examiner published a lead article calling the ongoing tardiness of the review into question:

Irish Examiner view: Pace of defamation law reform is not reassuring

Though a review of defamation laws “continues to be a legislative priority” the issue has been, like that infamous, well-battered can, kicked down the road more often than is reassuring. Another step in that process is scheduled for later this week when the Minister for Justice Helen McEntee will receive a report on how today’s punitive legislation might be reformed … Kicking the can down the road one more time and deferring positive change would be reckless and unwise. And not just for media organisations or politicians.

Irish Legal News provided further detail under a slightly more positive headline:

Reform of defamation law gathers pace

A review of Ireland’s defamation laws and options for reform are to be laid before Justice Minister Helen McEntee. … The department has already done “very extensive work” on the review but this has been delayed by legislation emanating from the pandemic … [The Department intends] “that the report of the review, with options for change, will be presented to the Minister by the end of October with a view to bringing proposals for legislative change to Government for approval by the end of December.”

Needless to say, that deadline of the end of October seems also to have been missed: that was yesterday, and there has been no fanfare in the media in the last forty-eight hours about this. Moreover, although the pandemic has dominated everything since March, it is disappointing to see it being used as an excuse for delays to a process which should have been completed at the latest by 1 January 2016. It had not even commenced by that stage. The current review began on 1 November 2016, and – four years later – it is still ongoing. There has been a great deal of can-kicking; indeed, there has been more than enough prevarication. The best time for this reform was five years ago; the second best time is now. Whenever it comes, it will not be soon enough.