‘Serious harm’ test should be considered for all defamation cases – Oireachtas committee report

A “serious harm” test should be considered for all defamation claims, the Oireachtas justice committee has recommended in a report on proposed changes to the defamation laws.

The all-party committee says a judge should have the final say on damages in High Court defamation actions but juries should continue to hear them.

Other recommendations include for simplification of the public interest defence in defamation cases and for defamation to be actionable only if special damage is proven.

The court in which a defamation action is taken, not a social media company, should be responsible for assessing whether material is potentially defamatory and should be taken down, the committee says. The court should have power to make the relevant take down orders, it adds.

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The recommendations are set out in the committee’s final report following its pre-legislative scrutiny of the Defamation (Amendment) Bill. The general scheme of the Bill is based on recommendations arising from a report, published in March 2022 by the Department of Justice, of the review of the Defamation Act 2009.

That report recommended, inter alia, the abolition of juries in High Court defamation cases arising from concerns including some high awards of damages and the substantial costs of defamation actions. Other recommendations included the introduction of clearer measures to protect responsible journalism, to tackle SLAPPs (strategic lawsuits against public participation) and to enable online service providers to reveal the identity of any anonymous poster of defamatory material.

As part of its scrutiny, the committee heard submissions from interested parties, including retired High Court judge Bernard Barton, who managed the High Court’s defamation list over several years; the Bar of Ireland; the Department of Justice; media organisations; the National Union of Journalists; and an umbrella group for organisations opposing SLAPP litigation.

In its report, published in recent days, the committee disagreed with a draft proposal to remove juries from hearing defamation cases. It recommends juries should continue to hear such actions to make findings of fact and, where appropriate, to make findings on an “indicative” level of damages.

A judge should have the final say on the amount of any damages and should not be bound by the level of damages indicated by a jury, it recommends.

Other recommendations include for introduction of a system that specifically incentivises the use of mediation and other forms of alternative dispute resolution.

The definition of “online publication” in the new law should be made clearer so as to establish whether publications from journalists on the RTÉ website would come under the remit of the Press Council or the media commission, Comisiún na Meán, it says.

The committee favours consideration of a two-year limit for bringing defamation claims and the introduction of a discoverability test for certain defamation actions.

It has recommended measures to help address delays in progressing defamation actions, including examination of the potential to empanel juries for more weeks in the court term and ongoing monitoring of judicial numbers to ensure adequacy of judicial resources allocated to defamation.

Training for judges in the hallmarks of a SLAPP case is recommended. The committee favours a “more inclusive” definition of what a SLAPP is than the definition provided in the review report. Anti-SLAPP measures here should align with those in the European Union’s proposed anti-SLAPP directive, it says.