Juries should not be involved in defamation cases, major review finds

Juries should no longer be involved in defamation cases because of their tendency to award huge awards in the past, a major review of the law has concluded.

In view of the huge proliferation of social media and new online platforms in recent years, the far-reaching review of Irish defamation laws has also recommended it should be easier to grand orders directing online service providers to disclose the identity of an anonymous poster of defamatory material.

The Cabinet approved the 300-page review today after it was brought to the Government by Minister for Justice Helen McEntee on Tuesday. She has promised to legislate for the review’s major findings by the end of 2022.

Other proposals include easier access to justice for individuals whose reputation is unfairly attacked; clearer protection for responsible public interest journalism; reducing legal costs and delays and measures to encourage prompt correction and apology, where mistakes are made.

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However, the review states that there should be no maximum cap on awards as that would give rise to constitutional difficulties and would be rigid.

The recommendation to abolish jury awards came about because of a tendency by juries to award substantial damages in some cases, running into seven figures. The case that attracted most attention was the decision of a High Court jury to award a former political adviser Monica Leech damages of €1.8 million after she was seriously defamed in 2005 by Independent Newspapers.

Balance

Ms McEntee had committed to reform defamation laws. Speaking after the Cabinet meeting, she said: “We must ensure that our defamation law strikes the correct balance between rights which are protected both by our Constitution, and by the European Convention on Human Rights.

“We should vindicate both the individual’s right to their good name and privacy; and the right of others to freedom of expression, taking account of the vital role played in our democracy by a free and independent media, and by other civil society actors, in providing information and debate on matters of public interest,” she added.

Many submissions to the review argued that Irish law afforded too much weight to the protection of reputation, at the expense of freedom of expression. They argued that Irish defamation awards were far too high, and were disproportionate compared to awards in serious personal injuries cases, or to awards for defamation in other jurisdictions.

“Stakeholders generally consider that the continued use of juries leads to seriously excessive awards. They mainly recommended that High Court defamation cases should be decided by a judge, sitting alone without a jury,” stated the review.

The review also referred to high legal costs, and the scope for delays contributing along with high damages to a ‘chilling effect’ on public interest reporting and investigative journalism.

The huge proliferation of online content and social media - even since the Defamation Act 2009 - has provided challenges for the defamation laws, the review also found.

It referred to viral nature of social media and its global, and instantaneous reach. It also referred to difficulties in removing offensive or defamatory content.

Among the key recommendations is for orders directing online service providers to disclose the identity of an anonymous poster of defamatory material.

The proposal to abolish the use of juries in defamation trials was described as “a correction of a long-standing anomaly in Irish law” by the chairman of NewsBrands Ireland, the representative body for Irish news media publishers.

Colm O’Reilly welcomed the recommendation to introduce a new ‘anti-SLAPP’ mechanism, a situation where a defendant to a libel claim can seek to have the case dismissed on the grounds that it is a Strategic Lawsuit Against Public Participation. “The threat of being sued has a chilling effect on investigative journalism with high profile individuals regularly using our current laws to suppress stories which are in the public interest,” Mr O’Reilly said.

However the organisation said it regretted that the report does not recommend a cap on damages, and recommends against there being a general requirement for someone to show serious harm was caused by a publication of a statement.

MAIN POINTS

* An end to juries in defamation cases

* Easier access to justice for individuals whose reputation is unfairly attacked

* Reduce delays and legal costs, reduce the length of hearings

* Clearer protection for responsible public interest journalism

* Measures to encourage prompt correction and apology

* Make it easier to disclose the identity of anonymous online posters of defamatory material.

* No cap on maximum awards