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

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. But he hadn’t, so I inferred and bemoaned its absence. However, this week’s reports all lead with the welcome news that such a provision is indeed to be included in tomorrow’s proposals.

Here’s Tighe in yesterday’s Sunday Times:

Ireland ready to Slapp laws on defamation

Cases to deter journalism will be dismissed

Ireland could become the first European country to introduce legislation allowing for the dismissal of “abusive” defamation cases that are taken only to deter public interest discussion and investigative journalism.

On Tuesday the cabinet will be asked by Helen McEntee, the justice minister, to approve proposals to reform the current draconian defamation law, including the abolition of jury trials and the introduction of a new “anti-SLAPP” mechanism.

And here’s Bray in today’s Irish Times:

Reform of defamation laws to be brought to Cabinet

Judges to weigh attempts at mediation when deciding on damages or redress

… The report also recommends measures to stop powerful individuals or entities from bringing vexatious legal proceedings to weaken or deter public interest discussion and investigative journalism.

An “anti-SLAPP” mechanism would allow a person to apply to court for summary dismissal of defamation proceedings. A typical SLAPP – “Strategic Lawsuit Against Public Participation” – is defined as a groundless or grossly exaggerated action which is often issued by wealthy companies or individuals against weaker parties. The weaker parties may have engaged in criticism or debate that is uncomfortable to the litigant on an issue of public interest.

Such proceedings are seen as being designed to censor, silence or intimidate critics by burdening them with deliberately high costs of legal defence.

Here’s Phelan in the Sunday Independent:

Cabinet will consider long-overdue ‘anti-SLAPP’ defamation reform bill

Measures to stop powerful individuals from bringing vexatious legal proceedings to silence valid criticism or debate are contained in long-awaited defamation reforms going to the Cabinet this week. …

Subject to cabinet approval, Justice Minister Helen McEntee intends to publish the report and include recommended reforms in a new Defamation Amendment Bill. The move comes on the back of long-standing criticism of Ireland’s defamation regime.

And here’s Loughlin in the Irish Examiner:

Mediation will impact defamation damages

… Justice Minister Helen McEntee is due to bring proposals to Cabinet next week which would also allow for the dismissal of “abusive” defamation cases that are taken purely to deter investigative journalism or silence detractors.

The long-awaited defamation reforms include measures to address what are known as ‘Slapp’ cases which are typically are taken by wealthy individuals or organisations in a bid to stop any negative reporting about them. It is anticipated that the practice of Slapp, which “stands for strategic lawsuit against public participation”, would be dramatically reduced under the proposals. The measures being put forward would allow defendants to apply to court for a summary dismissal of defamation proceedings if there is evidence that it is a Slapp case. …

As I have argued before on this blog, this is an excellent idea. As Jessica Ní Mhainín, of Index on Censorship put it yesterday: SLAPPs threaten freedom of expression, media freedom & democracy, so it’s good news that Ireland is now also considering how it can put an end to them!

Apart from that, this week’s articles report largely the same proposed reforms as O’Connell did last week, with a few more details, such as:

  • requiring judges to take into account participation in an alternative dispute resolution process when deciding on remedies, including damages;
  • permitting defendants to make lodgments into court in advance of the trial, as a reasonable compensation offer when parties cannot agree on a damages amount; and
  • a requirement to prove “serious harm” only in cases of “transient defamation” (does that include, or equal, fleeting defamation?) or of corporate plaintiffs, but not more generally.

The National Union of Journalists (NUJ) and the Irish Small and Medium Entreprises association (ISME) both generally welcomed the reported reform proposals (NUJ | ISME). All of the reports highlight that the Minister will not, for constitutional reasons, recommend a cap on damages. The NUJ did not comment on this point, but ISME argued that there is “simply no constitutional impediment” to the capping of damages. ISME also regret the absence of a general requirement to prove serious harm. And they rue the absence of reform of what they say is a “perverse” outcome of the current Act that aggravated damages can be awarded where a defendant mounts a robust but unsuccessful defence. (h/t I saw the NUJ reaction first in a report by Justin Kelly in Kildare Now; and I saw the ISME reaction first in a report by Mary Carolan in today’s Irish Times).

Update: the Reforms have been postponed by a week; from Philip Ryan in today’s Irish Independent:

Long-promised inquiry into defamation reforms are delayed again

The Government’s long-promised reforms of defamation laws are to be delayed yet again and will not be considered by Cabinet this week. Justice Minister Helen McEntee was due to bring a memo to cabinet today outlining the reforms which would prevent powerful people from taking vexatious defamation cases. owever, a Department of Justice source said the memo was being delayed for another week as the Taoiseach is in Germany meeting German Chancellor Olaf Scholz.

From the Editorial in today’s Irish Examiner:

Irish Examiner view: Reform of Irish defamation laws is long overdue

Press freedom has been curtailed by current legislation which represent a major prohibitive factor in journalists reporting on high-profile figures

Reform of the Irish defamation laws is long overdue. … The current laws are a significant threat to the State’s press freedom and represent a major prohibitive factor in journalists reporting on high-profile figures and significant private interests. … Too often, legal proceedings are used to censor the media and it is widely accepted that the current laws represent a constraint on effective and worthwhile investigative journalism. Substantive change is needed — and quickly.

A delay of a week is unfortunate, but a small one in the big scheme of things. Reform still seems closer than ever.

Now that defamation reform is no longer a false dawn but instead is firmly on the horizon, perhaps we shall see Godot soon too!