The written answer to two Parliamentary Questions earlier this week (on Tuesday 21 February 2023) provides hope for imminent publication of the long awaited the General Scheme of a Defamation (Amendment) Bill, including the introduction of an anti-SLAPP mechanism.

Deputy Catherine Murphy TD (pictured above left) asked the Minister for Justice if his Department has been engaging with the European Parliament in relation to the proposed directive on Strategic Lawsuits against Public Participation; and to detail what anti-SLAPP mechanisms his Department is considering for domestic legislation.

Deputy Patrick Costello TD (pictured above centre) asked the Minister for Justice the status of the proposed introduction of an anti-SLAPP mechanism in Irish law (details supplied), as committed to in May 2022; and if he will make a statement on the matter.

Minister for Justice Simon Harris TD (pictured above right) took both questions together and replied (links, and emphasis, added):

On 1st March 2022, the Government approved publication of the Report of the Review of the Defamation Act 2009 and the development of a General Scheme of a Defamation (Amendment) Bill on foot of the Report.

As the Deputy has noted, a key recommendation in the Report is to introduce a new ‘anti-SLAPP’ mechanism – referring to Strategic Lawsuits against Public Participation – to allow a person to apply to court for summary dismissal of proceedings that he/she believes are a SLAPP.

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The truth, as Oscar Wilde has Algernon Moncrieff remark to Jack Worthing in Act I of The Importance of Being Ernest, is rarely pure and never simple. Nowhere is this more evident than in a defamation courtroom. At common law, the defence of justification to a claim for defamation averred that the words complained of, in their natural and ordinary meaning, were true in substance and in fact. For example, in Irving v Penguin Books Ltd [2000] EWHC QB 115 (11 April 2000), American historian Deborah Lipstadt estabished that holocaust-denier David Irving had deliberately distorted evidence relating to the Holocaust, and thus successfully relied on the defence of justification to defeat Irving’s claim of defamation. In Ireland, the common law has been replaced by section 16(1) of the Defamation Act 2009 (also here), which provides that the defence of truth is made out where the defendant proves “that the statement in respect of which the action was brought is true in all material respects”. In England, the equivalent statutory provision is much more straightforward: section 2(1) of the Defamation Act 2013 provides that it “is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true”.…

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In Watters v Independent Star [2010] IECC 1 (3 November 2010) Matthews J in the Circuit Court handed down the first reserved decision under the Defamation Act, 2009 (also here). We will soon have the second. The politician Michael Lowry TD (pictured left) has taken a defamation action against journalist Sam Smyth over comments Smyth made in an article in the Irish Independent newspaper last May and on TV3 last June. I’ve already blogged about an earlier procedural skirmish in the case. The full action was heard today. According to the RTÉ news website (with links added by me to the relevant sections of the 2009 Act):

Mr Lowry says that Mr Smyth’s assertions portrayed him as corrupt, dishonest and untrustworthy and both unfit and unsuitable to be a minister or a TD. He said that other people had taken this same meaning from Mr Smyth’s comments. Mr Lowry says the comments were false and as such were deeply offensive and defamatory.

Mr Lowry is seeking that the court make a number of orders including that Mr Smyth apologise, publish a correction and refrain from making such public comments in the future. However, Mr Smyth is arguing that the comments made by him were true and represented his honest opinion.

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