Defamation (Amendment) Bill 2024 - What could it involve for Ireland?

Ireland’s Cabinet has recently approved the Defamation (Amendment) Bill 2024, which is expected to be enacted before the end of this year. This bill comes as a grateful promise to Ireland’s media, after calls have been made that the existing defamation laws threaten the media’s freedom. 

The amendment has plans to change a number of the current laws, as well as introduce new rules. These include:

1. The abolition of juries for High Court Defamation cases -

This aims to reduce excessive awards for damages as judges are able to decide the sums, rather than juries who may not take a realistic and lawful approach in their damages calculations. 

1. Provide protections for SLAPP (Strategic Lawsuits Against Public Participation) cases - 

These cases are stereotypically brought by the ‘rich and powerful’ in an attempt to deter investigations by journalists. The amendments plan to provide an opportunity for defendant media companies to apply for a declaration that a claim brought against them is indeed a SLAPP case. This also then requires the courts to speed up the related proceedings. 

1. Cheaper route to identify defamatory posters - 

The Bill is due to make it less costly for claimants to identify the individuals who have been posting defamatory content on the internet. 

1. Live broadcasting defence to be introduced - 

Broadcasters will be able to claim a defence that they have taken reasonable steps before and during the broadcast to mitigate any defamation taking place. This includes guest selection and how a topic is introduced.

1. Retailers’ defence to challenge presumed shop-lifters - 

A new defence is to come into existence for retailers to enable them to efficiently challenge individuals whom they believe may be shoplifting without being subject to claims for defamation of that individual’s reputation. These instances arise often where staff are required to challenge shoppers who they suspect have left, or will leave, the premises without paying for goods or services. This defence also extends to allow staff to explain to a customer that a suspected counterfeit banknote will not be accepted as payment. This will be called the defence of ‘qualified privilege’, provided customers are questioned without malice and with as much discretion as is reasonably possible. 

1. Simpler access to justice for individuals who suffer from reputational defamation - 

The bill is planning to remove the requirement for claimants to apply to the High Court for an order requiring a social media platform to reveal a defamator’s identity. This application can instead be made to the Circuit Court, which is likely to reduce costs and time delays significantly. 

While these changes come as appreciated, there have been comments regarding the lack of inclusion of a ‘serious harm’ test, which already exists in England and Wales. This test requires claimants to prove that the claimed defamation has, or is likely to cause serious harm to their reputation before the claim is commenced. 

Ireland’s Minister for Justice, Helen McEntee, has expressed her encouragement for this Bill by stating ‘Our democracy needs defamation laws that meet the challenges of an increasingly complex media landscape’, and that the Bill will be implemented to ‘safeguard freedom of expression, the right to protection of good name and reputation, and the right of access to justice’.