knowledge 8 May 2023 |

A New Landscape for Defamation Actions in Ireland?

The Government has revealed its plans to modernise and reform Ireland’s defamation laws and has published the Draft General Scheme of the Defamation (Amendment) Bill on 28 March 2023 (the “Draft General Scheme”). The highlights of the Draft General Scheme include the removal of juries from defamation trials, the further development of existing defences, measures to address “libel tourism” and new obligations for online intermediary service providers (“ISPs”). This briefing provides an overview in respect of some of the key measures proposed by the Draft General Scheme.

Measures affecting ISPs

The Draft General Scheme proposes the introduction of new obligations for ISPs. Under Head 32 of the Draft General Scheme, where a court finds that an online statement is defamatory, a court may issue a take-down order to the ISP to remove the statement. Further, where a defamation action is taken by a plaintiff, the plaintiff may apply to the court to grant an order directing the ISP to place a notice on the alleged defamatory statement highlighting that it is the subject of defamation proceedings, or, block access to the statement until the proceedings have concluded.

It is further proposed that the Circuit Court will have jurisdiction in addition to the High Court to hear Norwich Pharmacal applications and direct an “identification order” where a defamatory statement has been published online by an anonymous publisher. Currently, the Circuit Court has jurisdiction to hear defamation actions but no jurisdiction to make a Norwich Pharmacal order. Under Head 33 of the Draft General Scheme, a court can order the ISP to provide details such as the anonymous publisher’s name, email address, telephone number and date and time of registration and IP addresses associated with each log in and log out. Before making such an order, a court will first direct the ISP to serve a notice on the anonymous publisher to allow them an opportunity to appear and make representations to the court. The extension of jurisdiction to hear Norwich Pharmacal applications to the Circuit Court should reduce costs for all parties and make such orders more accessible.

The Draft General Scheme also proposes the introduction of a notice of complaint mechanism for persons that believe that a defamatory statement has been published about them on an online platform. The Draft General Scheme currently proposes that ISPs will be required to have a feature to enable users to submit a notice to them that a statement published on their platform is defamatory. The ISP would be required to provide a confirmation of receipt of the notice and forward the notice to the author of the statement requesting a response. Where the ISP is unable to forward the notice to the author or does not receive a response, it would be required to restrict access to or remove the statement. This measure captures the mechanism required under Article 16 of the DSA to allow users to notify ISPs of illegal content and is further intended to facilitate parties resolving the subject-matter of the complaint.

Under Article 6 of the DSA, ISPs are not liable for illegal content they host unless they have actual knowledge of the illegal content or facts or knowledge of circumstances from which the illegal content is apparent and on obtaining such knowledge, does not act expeditiously to remove or disable access to the illegal content. Paragraph 12 of Head 34 of the Draft General Scheme provides:

“Notices referred to in this Head shall be considered to give rise to actual knowledge or awareness, for the purposes of Article 6 of the Digital Services Regulation, where they allow a diligent provider of hosting services to determine that a statement is illegal/defamatory, and that the defendant has no defence, without a detailed legal examination.”

The wording of this paragraph suggests that receipt of a notice under Head 34 may trigger obligations for ISPs under Article 6 of the DSA. It is not clear how in practice an ISP can determine whether a statement is illegal/defamatory without a legal defence or in the absence of a court order. The scope of paragraph 12 of Head 34 will need to be clarified as the Draft General Scheme is developed further.

Defences

A number of amendments are proposed in the Draft General Scheme to the existing defences under the Defamation Act 2009 (the “2009 Act”). It is proposed to extend the scope of the defence of absolute privilege to cover fair and accurate reports of public proceedings in certain international courts and in the courts of certain specified other States. In a similar vein, the defence of qualified privilege would be extended to cover fair and accurate reports of press releases and other documents published by a number of entities including Government Departments, local authorities, and proceedings of an association, a public meeting or a meeting of a local authority.

The Draft General Scheme proposes amending the defence of honest opinion under section 20 of the 2009 Act by replacing the requirement that at the time of publication “the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion believed that the author believed it to be true” with a requirement that “the defendant genuinely held the opinion or, believed that the author genuinely held the opinion”. The Draft General Scheme states that this is not intended to remove the core requirement that that the opinion must be honestly held by the person who expressed it, however it would remove the requirement for the defendant to prove that the opinion was believed to be true.

The Draft General Scheme also proposes amending section 26 of the 2009 Act relating to the defence of fair and reasonable publication on a matter of public interest. Section 26 of the 2009 Act was originally intended to introduce a significant new defamation defence in Ireland, however in the Report of the Review of the Defamation Act 2009, carried out by Minister for Justice, Helen McEntee (the “Report of the Review”), it found that it had a limited substantive impact in defamation cases and appears to have never been successfully pleaded before the courts. Head 16 of the Draft General Scheme proposes introducing more watered down language with the objective of “ensuring that the requirements of the defence are simpler and clearer”.

Finally, the Draft General Scheme also proposes the amendment of section 27 of the 2009 Act which provides for the defence of innocent publication. The defence of innocent publication would be extended to live broadcasters for statements made by persons that the broadcaster has no control over. The defence has also been extended to website operators and the Draft General Scheme provides that:

“a website operator is not liable for statements posted on the website by a person over whom the website operator has no effective control, provided that the operator had in place, at the time of the posting of the statement the subject of the proceedings, appropriate mechanisms to take reasonable steps to prevent defamatory postings and that such mechanisms could not have prevented the postings in question.”

However, there would still be an obligation on website operators to have appropriate mechanisms in place to take reasonable steps to prevent defamatory posts. The intention of this proposed amendment is to protect non-commercial websites/forums that are typically administered by volunteers from facing liability for comments posted by users even if they had taken reasonable steps to prevent the comments and remove them promptly. This would operate in addition to the rules governing the liability of ISPs under the Digital Services Act (the “DSA”)¹.

Strategic Lawsuit Against Public Participation (“SLAPPs”)

A significant proposal contained in the Draft General Scheme is the potential introduction of a new section into the 2009 Act to address SLAPPs, the use of strategic and abusive litigation by powerful plaintiffs to deter public discussion. Under the proposal, defendants would be able to apply to a court for early dismissal of an action, or, after the full hearing for a dismissal and/or declaration that the proceedings constituted a SLAPP. The Draft General Scheme provides that proceedings may be considered by a court to constitute a SLAPP if they have certain “features of concern” such as:

“(a) the making of claims of a disproportionate, excessive or unreasonable nature;

(b) intimidation, harassment or threats made by the plaintiff or his or her representatives against the defendant or associated parties, including prior to the institution of the proceedings;

(c) the existence of multiple proceedings initiated by the plaintiff or associated parties, against the defendant or associated parties, in relation to similar matters;

(d) the conduct of the litigation by the plaintiff in a manner which is disproportionate, excessive or unreasonable, including (but not limited to) the use of aggressive, unreasonably frequent, or intrusive pre-action communication...”

If proceedings are found to constitute a SLAPP, a plaintiff may be liable to bear the defendant’s costs in full. Furthermore, if a court is satisfied that defamation proceedings are a SLAPP or abusive, a court may award damages to the defendant in those proceedings for harm suffered as a result of the proceedings.

Removal of Juries

The Draft General Scheme provides for the abolition of jury trials in defamation proceedings in the High Court, which if implemented would be tried by a judge. This has been proposed in response to the recommendations contained within the Report of the Review.  It is envisaged that the removal of juries from defamation trials in the High Court may reduce the amount of damages awarded to successful plaintiffs. Currently, judges may make defamation awards in the Circuit Court, and the UK system has also abolished jury trials for defamation actions. However, many  still argue that juries are necessary for defamation actions as such actions concern constitutional considerations and the vindication of a plaintiff’s right to a good name and a jury, which is representative of society, is best placed to consider the meaning of a publication and whether it is defamatory, particularly in an online context.

Libel Tourism

The Draft General Scheme proposes the introduction of measures to restrict libel tourism in Ireland and to make it harder to ground a claim in this jurisdiction for parties not connected to Ireland. It proposes that a court would not have jurisdiction to hear an action against a person, unless that person is domiciled in Ireland, another EU Member State or a party to the Lugano Convention². The Report of the Review recommended this measure “to address the perceived risk of international forum-shopping” and to ensure that Ireland is “clearly the most appropriate place for the action to be brought”.  In recent years, a number of high profile defamation claims have been brought in the Irish Courts on the mere fact of “publication” in Ireland, through the ability to access the relevant material online in this jurisdiction. In an online world, this has meant that international claims concerning persons with little or no connection to Ireland have been brought in this jurisdiction.

Serious Harm Test for Corporates

The Draft General Scheme proposes the introduction of a serious harm test in order for bodies corporate to ground a defamation claim. Under the Draft General Scheme, bodies corporate bringing an action would be required to show that the alleged defamatory statement is, “likely to cause, serious harm to the reputation of the body corporate in the eyes of reasonable members of society” and where the body corporate trades for profit, harm will only be deemed to be “serious harm” if the body corporate can “show that it has incurred or is likely to incur, serious financial loss as a result of the publication.” The serious harm test if implemented in its current form will not apply however to micro companies, being entities with fewer than 10 employees or less than €2m in annual turnover or on its balance sheet.

A serious harm test is also proposed in relation to defamation claims arising from a statement made in non-permanent form in the course of providing or refusing retail services, otherwise known as “transient retail defamation”. Retailers may no longer be exposed to defamation actions where an employee or agent has asked a customer leaving the premises to provide evidence of payment or where an employee or agent informs a customer that the retailer is unable to accept the payment proffered by the customer unless the customer can satisfy a serious harm test. The Attorney General’s Office will consult on the drafting of the serious harm test applicable in this context to ensure the affected constitutional rights are appropriately balanced.

With regard to public authorities, the Draft General Scheme also proposes that defamation actions may only be brought by a public authority if a court is satisfied that it is in the public interest to do so. The background to this recommendation is that a number of submissions proposed that entities carrying out government or regulatory functions should not be allowed to sue for defamation.

Conclusion

The measures contained in the Draft General Scheme present a clear intention to address issues that have arisen under our current defamation laws in an online world. The Draft General Scheme will first undergo pre-legislative scrutiny by the Joint Oireachtas Committee on Justice prior to being drafted into a Bill. Further briefings will appear on our website as the Draft General Scheme progresses.

Also contributed to by Matthew Stenson