EU legislation to combat strategic lawsuits will not include ‘unseen layer’ of activity and NDAs

Government plans to improve protections for journalists and human rights defenders against lawsuits by powerful individuals which are aimed at silencing them will not deal with a “further unseen layer” of similar activity, the Dáil has heard.

Green Party TD Neasa Hourigan appealed for any reform of defamation laws to involve an examination for the provision of additional protections in cases already instigated and involving non-disclosure agreements (NDAs).

She welcomed the plan to deal with strategic lawsuits against public participation (Slapp), “meritless or vexatious lawsuits taken by powerful individuals or organisations against weaker parties who express an opinion or convey information on a public matter that is perceived as unfavourable or uncomfortable to the powerful”. The Slapp legislation is based on a European Commission directive proposal.

Raising the issue in the Dáil, Ms Hourigan said she had become aware of cases where “a person or entity instructs a legal representative to write a letter threatening legal action, sometimes demanding an apology, usually demanding some financial restitution and, increasingly and more worryingly, demanding the signing of an NDA, all without any court being troubled at any time”.

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She was aware of a number of journalists being affected but she also claimed under Dáil privilege that national newspaper columnist David Quinn “has threatened legal action against a member of a group advocating for safe access zones for women accessing abortions”.

“He has asked not only for money and an apology, but also the signing of an NDA. Mr Quinn has targeted this group in his columns before and his opinions cannot reasonably be disentangled from those of his employer the Iona Institute,” she said.

Ms Hourigan claimed it was relevant because “we know that foreign money is flooding into Ireland and other European countries to stoke discord”. She said a 2021 European Parliament report The Tip of the Iceberg outlined the institute’s “interaction with funds from Fondazione Novae Terrae”, which she said “bankrolls activity against what it describes as new or secular rights such as reproductive rights, marriage equality and trans rights”.

The Green Party TD added that the institute’s “possible involvement” was relevant because its 2020 financial statement showed it did not incur legal expenses.

“If its director enjoys the same luxury, a great many activists and groups in Ireland could have received similar letters from Mr Quinn but, of course, neither we nor the Government will ever know that because the NDAs are in place and the matters in question will never get to court.”

She said as part of any reform of the 2009 Defamation Act and the instigation of the Slapp legislation, there should be an examination of additional protections that could be put in place for this type of activity “in the pre-court phase”.

The Dublin Central TD said that “if someone has been maligned or defamed and an individual then retracts their comments, there should be no need for NDAs. I hope future legislation can recognise that.

“If your grievance and good name have been vindicated, that should be public knowledge.”

Replying for the Government, Minister of State Dara Calleary said as preparations are made for reforming defamation laws, journalists and activists subject to harassment can avail of existing legislation including the Non-Fatal Offences against the Person Act which deals with harassment and assault.

He said that Coco’s law (the anti-bullying legislation introduced last year) strengthens the legal situation with regard to online harm, persistent communication or indirect harassment.

Speaking for Minister for Justice Helen McEntee, Mr Calleary added that the department is working on the general scheme of the amending legislation to deal with the Slapp directive proposal which is currently being considered by a working party of the European Council.

He added that “the Minister hopes that the drafting of the general scheme will be completed as soon as possible”.

Mr Quinn has been contacted for comment.