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.

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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.…

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The latin maxim “de minimis non curat lex” is usually translated as “the law does not concern itself with trifles”, meaning the courts will not consider trifling matters. Christmas may be the time for trifles (like the Christmas trifle pictured left), but the Courts are not the place for them. I was reminded of the maxim today when I read the headline that a “Man wins ‘fleeting defamation’ case against Luas and is awarded €500“. The judge is reported (here and here) to have found that:

there was a “fleeting defamation” … but, “having regard to the fact it was almost immediately expunged”, he could not find any lasting damage to his reputation or good name. In the circumstances, he awarded nominal damages of €500 [plus costs] … There was a “momentary defamation” which was almost immediately corrected such that people in the vicinity could not have reasonably formed any lasting adverse opinion of the plaintiff, …

Given the trifling sum of nominal damages, the plaintiff is lucky to have received his costs. Even more so, in my view, is he lucky to have been successful at all. I don’t think that the law of defamation should be concerned with such trifles.…

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Libel cases in England and Wales are “better off without juries”, according to Sir Mark Warby, the High Court judge with responsibility for the Media and Communications List of the Queen’s Bench Division. As reported yesterday in the Brief, the legal newsletter of The Times, he was speaking on Tuesday at the London conference of the Media Law Resource Centre, an American organisation. He said that he “does not regret the passing of the jury at all”, and he pointed out (pdf) that there are many advantages to the “virtual abolition” of juries in defamation cases:

It has removed the territorial disputes that quite often used to arise, over whether a given issue is within the province of the judge, or that of the jury. In addition, this reform has all but eliminated the practice of arguing the same point to different threshold standards on different occasions. It is now possible for many more cases to reach a final resolution more economically by early judicial decisions on key issues of fact, or mixed issues of law and fact.

In England and Wales, section 11 of the Defamation Act 2013 provides that defamation actions are to be tried without a jury unless the court orders otherwise.…

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Section 26 of the Defamation Act 2009 (also here) introduced a new defence of fair and reasonable publication into Irish defamation law. In Meegan v Times Newspapers Ltd [2016] IECA 327 (09 November 2016) Hogan J for the Court of Appeal (Finlay Geoghegan and Peart JJ concurring) explained that the

section is clearly designed to provide a defence for publishers who show that they acted bona fide and that the publication was fair and reasonable having regard, in particular, to the matters set out in section 26(2) of the 2009 Act. Section 26 may be regarded as an endeavour by the Oireachtas to move away in some respects from the strict liability nature of the common law tort of libel and to introduce – in, admittedly, some specific and limited respects – a negligence based standard in actions for defamation under the 2009 Act. ([2016] IECA 327 (09 November 2016) [10])

For all that section 26 is a centre-piece of the reforms worked by the 2009 Act, it is, in my view, a legislative dead letter. It is over-complex, placing far too many hurdles in the way of a successful invocation. Meegan illustrates the point. The plaintiff garda claimed that she had been defamed by the defendant’s allegations that she had supplied sensitive information to a paramilitary group.…

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The Tánaiste and Minister for Justice and Equality is conducting a review of the operation of the Defamation Act 2009 (also here). No doubt the focus of media submissions will be the level of damages, and exhibit A in those submissions will unquestionably be the decision of the Supreme Court in Leech v Independent Newspapers [2014] IESC 79 (19 December 2014). A report published today by the International Press Institute provides an excellent statement of the argument. In this post, I want to summarize and respond to some of the issues in the Report, and make three practical suggestions for reform of the law of defamation relating to damages.…

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