Defamation – cearta.ie

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

21 February, 202223 February, 2022

| 2016-17 Reform, Defamation, Defamation, Libel tourism

By 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.…

Will we see Cabinet approve the drafting of a Defamation (Amendment) Bill before the end of the month?

14 February, 202222 February, 2022

| 1 Comment

| 2016-17 Reform, Defamation, Defamation

A report by Hugh O’Connell in yesterday’s Sunday Independent suggests that the answer to the question in the title of this post is: yes, we may very well see Cabinet approve the drafting of a Defamation (Amendment) Bill before the end of the month. He reports that the Minister for Justice, Helen McEntee, will bring to Cabinet the outcome of a statutory review (including a stakeholder symposium) of the operation of the Defamation Act 2009 (also here) and a general scheme of the Heads of a Defamation (Amendment) Bill 2022 based on the review’s recommendations. This is exciting news, but I’m not going to get too carried away, because we have been here many times before. Last March, on this blog, I bemoaned the many false dawns in Irish defamation law reform. Then, in July, I posed the question “Who will come first, Godot, or an Irish Minister for Justice bearing defamation reform?”. So far, we’ve seen neither; but O’Connell’s report suggests we might just soon see the latter.

The Defamation Act 2009 had been signed by the President on 23 July 2009, and it came into force on 1 January 2010. Section 5 (also here) requires the Minister to commence a review of the operation of the Act “not later than 5 years after the passing of this Act”, and to complete that review within a year.…

If Equity can develop new orders when necessary, can it develop anti-SLAPP orders? Part 1: new equitable orders

12 August, 202118 August, 2021

| 2 Comments

| Defamation

In a tweet a little while ago, I wondered:

If Equity can develop new orders/injunctions when necessary (eg Cartier v BT [2018] UKSC 28 [15] (Sumption)), can it develop anti-SLAPP orders?

The answer to this question falls into two stages. The first, which I will consider in this post, is the extent to which equity can generate a new order or injunction. If it can, then the second stage, which I will consider in a future post, is whether it can develop a new order or injunction to prevent strategic lawsuits against public participation (anti-SLAPP orders).

The answer to question whether equity can generate a new order or injunction, and the background to Cartier, begins with section 25(8) of the Judicature Act, 1873, which provided that a “mandamus or an injunction may be granted or a received appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just and convenient”. In Beddow v Beddow (1879) 9 Ch D 89 (pdf), Jessel MR held that if “this can be done on by interlocutory application a fortiori it can be done at the trial of the action”.…

Who will come first, Godot, or an Irish Minister for Justice bearing defamation reform? – updated

20 July, 202129 July, 2021

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| 2016-17 Reform, Defamation

Two years ago, the EU established the European Rule of Law Mechanism as a process of dialogue on rule of law issues between the EU institutions, the Member States, and civil society. 2020 saw the first of the annual reports. One of the issues highlighted in the report for Ireland related to the long-stalled process of defamation reform. In the intervening year, nothing has happened on the issue (understandably: there’s been a pandemic). However. it does feature in the Department of Justice Action Plan for this year, so the Commission, regarding the glass as half-full, has chosen to accept that at face value, and to welcome the prospect of reform before the end of the year:

… Amendments to the Defamation Act, foreseen for adoption in the coming months, are expected to have a positive impact on the operation of journalists. … Following the announcement of the plans to revise the 2009 Defamation Act¹¹¹, the Irish Government is finalising a statutory review. A new Scheme of Defamation could be presented by the end of 2021. As highlighted by stakeholders¹¹², the current regime enables to impose a disproportionately high amount of damages for defamation, which can have a negative impact on journalistic freedom.

…

Irish defamation reform: SLAPPs, false dawns, and silver linings

9 March, 202119 March, 2021

| 3 Comments

| 2016-17 Reform, Defamation, Defamation, Defamation Act 2009

In an interview in this morning’s Irish Times, the EU Commissioner for Justice Didier Reynders (pictured right) raised serious concerns about the operation of Ireland’s defamation laws:

Ireland’s defamation laws are being used to ‘pressure journalists’ – EU commissioner

Low bar for lawsuits in Ireland ‘raises concerns’ over freedom to expose corruption

Ireland’s defamation laws should be reviewed as they may suppress the ability of the media to expose corruption … Irish defamation laws are notoriously strict, providing a low bar for lawsuits against journalists and media organisations that are often used to put pressure on journalists.

He made the same points later this afternoon when he addressed the Joint Oireachtas Committee on European Union Affairs. In his opening statement (draft here; pdf) he repeated that “Ireland’s defamation laws raise concerns as regards the ability of the press to expose corruption” (p6) and that “the frequent use and high costs of defamation cases raise concerns” (p7; update: reported Irish Examiner | Irish Independent | TheJournal.ie).

In questions from members of the Committee, Senator Michael McDowell commented that he had been the Minister for Justice who started the reform in the early 2000s (full disclosure, I was on the Group that advised him in this regard), and he agreed with the Commissioner that “Irish defamation law is a little bit suffocating of investigative journalism” and that there “is scope for further reform”.…

The truth, pure and simple, as a defence to defamation claims after Depp v NGN

3 November, 20208 November, 2020

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| Defamation, Defamation, Defamation Act 2009

Johnny Depp, Amber Heard, Sun masthead, all pix via wikipedia 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”.…

Still kicking the can on defamation reform after four years

1 November, 20201 November, 2020

| 3 Comments

| 2016-17 Reform, Defamation

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.…

Defamation, the Galapagos Islands Division of the law of torts

9 October, 2020

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| Defamation

Discussing themes in the law of Tort in (2007) 81 Australian Law Journal 609, 615 (via StuDoc), Mr Justice David Ipp (pictured left), then a judge of the Supreme Court of Western Australia and later a judge of the Court of Appeal of New South Wales, described the law of defamation as “the Galapagos Islands Division of the law of torts”:

The tort of defamation has evolved all on its own and has created legal forms and practices unknown anywhere else. It has evolved its own dialect and adopted esoteric customs. It thrives, for example, on distinctions between inferences upon inferences, on the one hand, and inferences upon implications on the other, and between contextual and common or garden imputations. Defamation law is devoted to jury decisions even though this devotion causes delay and additional costs and the role of the jury keeps changing. Pleadings in defamation actions are as complex, as pedantic and as technical as anything known to Dickens. Interlocutory disputes continue to beset plaintiffs and there are often massive delays in getting defamation cases to trial. Damages seem out of proportion to damages awards in other categories of cases.

The words are certainly true of Ireland now, even if they may have been “hyperbole” which gave “insufficient credit to the landmark uniform defamation laws” then recently enacted in Australia (Hemming (2009) 11 University of Notre Dame Australia Law Review 84 (pdf).…