Progress towards new Defamation Legislation

Yesterday evening, the Dáil passed the much-anticipated Defamation (Amendment) Bill 2024 (the “Bill”) with a significant majority—83 votes to 61. The Bill, initially presented to the Dail in August 2024, has been notably slow to progress through the legislative phases. The next step is for the Bill to be passed through the Seanad. The new proposed legislation aims to overhaul Ireland’s defamation laws, which have remained unchanged since 2009. However, the Bill has ignited debate among legal professionals, media organisations and the Irish SME Association (ISME), who question whether the proposed reform goes far enough.

Retail Defamation Claims:

The 2022 Report on the Review of the Defamation Act 2009 (the “Reform Report”), highlighted concerns about the rising number of trivial defamation actions brought in the Circuit Court against small businesses in the retail and hospitality sectors. The Reform Report recommended amendments to the legislation, proposing that any alleged defamation must have caused serious harm to the plaintiff (the person being defamed). 

Regrettably, this serious harm threshold was not incorporated into the Bill. Instead, the Bill extends the defence of qualified privilege to include inquiries about payment for goods or services. This means that a retailer or other person with a duty or interest in (a) making such an inquiry of someone as to whether they have paid for goods or services or (b) raising a query regarding a payment offered by someone, and who does so without malice and without excessive publication, may now be protected from defamation claims. 

While the common law already provides this level of protection and formalising it in legislation is a positive development, arguably the amended defence does not go far enough. Without a serious harm requirement, there is little to deter frivolous or vexatious claims. Retailers often face the dilemma of defending these claims—incurring legal costs (which can range from €10,000 to €20,000 in the Circuit Court) or relying on insurance, which may lead to higher premiums. Often, even if they have done everything correctly in dealing with a situation and have a strong prospect of defending proceedings, they have to balance the likelihood of successfully defending the claim or having it dismissed, against the difficulty in recovering their legal costs from the plaintiff with little to no means to pay. As a result, many retailers opt not to challenge people they suspect of theft when it relates to low-cost stolen items, in order to avoid any potential claim.

Defence of Fair & Reasonable Publication on matter of public interest

There has been considerable discussion about reforming the defence of Fair & Reasonable Publication on Matter of Public Interest under Section 26 of the Defamation Act 2009. The Reform Report proposed simplifying and clarifying this defence to align it more closely with similar protections in UK and Canada. However, these reforms had not been incorporated into recent iterations of the Bill.

Last night, the Bill was amended to include an amended Section 26 defence: if enacted, it shall be a defence to a defamation action for a defendant to prove that the statement in respect of which the action was brought was on a matter of public interest, that the defendant reasonably believed that publishing the statement was in the public interest, and that the statement was published in good faith. Courts will consider whether the defendant undertook reasonable enquiries and checks prior to publication.

This is a significant development, as the defence has historically not been successfully invoked in Ireland. The most recent notable case was Gerry Adams v BBC, where it failed. This reform will make the defence more accessible to media organisations and journalists, providing better protection for responsible reporting. 

What else does the new Bill cover?

• Jury Trials in High Court Defamation Cases: The Bill proposes abolishing juries in High Court defamation cases (there are currently no juries in Circuit Court defamation cases), which should help reduce legal costs and streamline proceedings, given that jury trials tend to take longer to hear.
• Defamation of a Company (Body Corporate): To succeed in a claim, a company will need to demonstrate that its reputation suffered or is likely to suffer “serious harm.”
• Protection Against SLAPPs: The Bill includes protections for media organisations against strategic lawsuits against public participation (SLAPPs), typically initiated by wealthy or politically powerful individuals to hinder media coverage.
• Introduction of a “Live Broadcasters defence”: The Bill introduces a specific defence for broadcasters regarding defamatory statements made during live broadcasts, allowing broadcasters to avoid liability if they can demonstrate they took reasonable and prudent precautions both before and during the broadcast to prevent defamatory statements from being made. 

Conclusion

The new Defamation Bill represents a comprehensive attempt to modernise Ireland’s defamation laws, addressing key issues faced by small businesses and media organisations. While some provisions mark significant progress, ongoing debate remains about whether the legislation goes far enough to properly balance free expression with protection against frivolous claims.