Report of the Review of the Defamation Act 2009

 
 

 
Table of Contents 
 
Chapter 1: Context and approach of this review .......................................................................... 10 
1  Introduction .......................................................................................................................... 10 
2  The approach of this Report ................................................................................................. 11 
3  Nature and objectives of the Review .................................................................................... 11 
4  The work of the review ......................................................................................................... 12 
4.1 Public Consultation .............................................................................................................. 13 
4.2 Symposium ........................................................................................................................... 14 
4.3 Reforms to defamation law in other jurisdictions ............................................................... 14 
4.4 Recent significant judgments ............................................................................................... 15 
4.5 Parallel reform initiatives ..................................................................................................... 16 
5 Defamation law under the Constitution and ECHR: need to balance rights .............................. 17 
6 Relevance of EU law .................................................................................................................... 18 
7  Specific nature of online defamation .................................................................................... 19 
8  Range of proposals made during consultation ..................................................................... 21 
8.1 General issues ...................................................................................................................... 21 
8.2 Awards of damages .............................................................................................................. 21 
8.3 Role of juries ........................................................................................................................ 22 
8.4 Taking defamation proceedings ........................................................................................... 22 
8.5 Streamline court procedures ............................................................................................... 23 
8.6 Defences ............................................................................................................................... 23 
8.7 Alternative dispute resolution (ADR) ................................................................................... 24 
8.8 Digital and online defamation .............................................................................................. 25 
9  Main changes recommended by this review ........................................................................ 25 
Damages and juries ...................................................................................................................... 26 
Taking defamation proceedings and court procedures .............................................................. 26 
Defences ....................................................................................................................................... 28 
Promoting ADR .............................................................................................................................. 28 
Special measures for digital or online defamation ..................................................................... 29 
Special measures for both online and non-online defamation ..................................................... 29 
Chapter 2: Bringing Defamation Proceedings .............................................................................. 31 
1 What is meant by defamation?................................................................................................... 31 
2 The presumption of falsity .......................................................................................................... 32 
2.1 The current legal position .................................................................................................... 32 
2.2 Issues arising for the review ................................................................................................ 32 

 
 

 
2.3 The requirements of the European Convention on Human Rights ..................................... 34 
2.4 Comparative Perspectives ................................................................................................... 39 
2.5 Options for reform ............................................................................................................... 41 
3  Proposed ‘Serious Harm’ Test .................................................................................................... 44 
3.1 The current legal position .................................................................................................... 44 
3.2 Main issues raised during the review .................................................................................. 46 
3.3 Comparative perspectives ................................................................................................... 48 
3.4 Options for reform ............................................................................................................... 50 
4 Defamation of a Class of Persons................................................................................................ 53 
4.1 Current Legal Position .......................................................................................................... 53 
4.2 Main issues raised in course of review ................................................................................ 53 
4.3 Options for reform ............................................................................................................... 53 
5 Position of bodies corporate ....................................................................................................... 55 
5.1 Current Legal Position .......................................................................................................... 55 
5.2 Main issues raised in course of review ................................................................................ 56 
5.3 Comparative perspectives ................................................................................................... 57 
5.4 Options for reform ............................................................................................................... 58 
6 Position of Public Bodies ............................................................................................................. 61 
6.1 Current Legal Position .......................................................................................................... 61 
6.2 Main issues raised in course of review ................................................................................ 62 
6.3 Comparative perspectives ................................................................................................... 62 
6.4 Options for reform ............................................................................................................... 63 
7  Defamation of the dead ............................................................................................................. 66 
7.1 The current legal position .................................................................................................... 66 
7.2 Main issues raised in course of review ................................................................................ 70 
7.3 Comparative perspectives ................................................................................................... 70 
7.4 Option for reform ................................................................................................................. 71 
Chapter 3: Defences ................................................................................................................... 73 
1 Truth ............................................................................................................................................ 73 
1.1 Current legal position ........................................................................................................... 73 
1.2 Main issues raised in course of review ................................................................................ 73 
1.3 Symposium on Reform of Defamation Law ......................................................................... 73 
1.4 Comparative Perspectives ................................................................................................... 74 
1.5 Options for reform ............................................................................................................... 75 
2  Absolute Privilege ...................................................................................................................... 77 
2.1 Current legal position ........................................................................................................... 77 

 
 

 
2.2 Issue raised in course of review ........................................................................................... 77 
2.3 Law Reform Commission Report: Privilege for reports of court proceedings ..................... 77 
2.4 Comparative Perspectives ................................................................................................... 78 
2.5 Options for reform ............................................................................................................... 79 
3 Qualified Privilege ....................................................................................................................... 80 
3.1 Current Legal Position .......................................................................................................... 80 
3.2 Main issues raised in course of review ................................................................................ 81 
3.3 Comparative Perspectives ................................................................................................... 82 
3.4 Options for reform ............................................................................................................... 84 
4  Honest Opinion .......................................................................................................................... 88 
4.1 Current legal position ........................................................................................................... 88 
4.2 Main issues raised in course of review ................................................................................ 89 
4.3 Comparative Perspectives ................................................................................................... 91 
4.4 Options for reform ............................................................................................................... 93 
5 Offer to make amends ................................................................................................................ 98 
5.1 Current Legal Position .......................................................................................................... 98 
5.2 Main issues raised in course of review ................................................................................ 99 
5.3 Symposium on review of defamation law ......................................................................... 101 
5.4 Comparative Perspectives ................................................................................................. 101 
5.5 Options for reform ............................................................................................................. 103 
6  Fair and reasonable publication on a matter of public interest .............................................. 105 
6.1 Current legal position ......................................................................................................... 105 
6.2 Main issues raised in course of review .............................................................................. 108 
6.3 Comparative Perspectives ................................................................................................. 110 
6.4 Options for reform ............................................................................................................. 113 
7 Innocent Publication ................................................................................................................. 116 
7.1 Current legal position ......................................................................................................... 116 
7.2 Main issues raised in course of review .............................................................................. 118 
7.3 Comparative Perspectives ................................................................................................. 118 
7.4 Options for reform ............................................................................................................. 119 
8 Proposed new defence: satiric or comedic utterance .............................................................. 122 
8.1 Main issues raised in course of review .............................................................................. 122 
8.2 Comparative Perspectives ................................................................................................. 122 
8.3 Option for reform ............................................................................................................... 123 
Chapter 4: Court jurisdiction and procedures ............................................................................ 125 
1 Court jurisdiction ...................................................................................................................... 125 

 
 

 
1.1 Current Legal Position ........................................................................................................ 125 
1.2 Court Statistics ................................................................................................................... 125 
1.3 Main issues raised in course of review .............................................................................. 128 
1.4 Options for reform ............................................................................................................. 129 
2  Jury trial .................................................................................................................................... 132 
2.1 Current legal position ......................................................................................................... 132 
2.2 Main issues raised in course of review .............................................................................. 133 
2.3 Comparative Perspectives ................................................................................................. 137 
2.4 Options for reform ............................................................................................................. 138 
3 Time Limits and Delays by Parties ............................................................................................. 144 
3.1 Current Legal Situation ...................................................................................................... 144 
3.2 Issues raised in submissions ............................................................................................... 145 
3.3 Comparative Perspectives ................................................................................................. 145 
3.4 Options for reform ............................................................................................................. 146 
4  Case Management ................................................................................................................... 149 
4.1 Main issues raised in course of review .............................................................................. 149 
4.2 Options for reform and recommendations ....................................................................... 149 
5 Choice of Jurisdiction - concerns about ‘libel tourism’ ............................................................. 150 
5.1 Choice of jurisdiction: the position under EU law ............................................................. 151 
5.2 Choice of jurisdiction: non-EU countries ...................................................................... 154 
5.3 ‘Libel tourism’ – perception or reality? .............................................................................. 155 
5.4 Issues raised in submissions ............................................................................................... 156 
5.5 Options for reform ............................................................................................................. 156 
6 Costs and accessibility of defamation actions .......................................................................... 157 
6.1 Issues raised in submissions ............................................................................................... 157 
6.2 Options for reform ............................................................................................................. 158 
7 Criminal offences relating to defamation ................................................................................. 159 
7.1 Current Legal Position ........................................................................................................ 159 
7.2 Issues raised in the course of the Review .......................................................................... 159 
8 Evidential rule - reference to a criminal conviction .................................................................. 161 
8.2 Main issues raised in course of review .............................................................................. 161 
8.3 Option for reform ............................................................................................................... 162 
9 Measures to counter mis-use of defamation proceedings (‘SLAPP’ actions) ........................... 162 
9.1 What are SLAPPs? .............................................................................................................. 162 
9.2 The development of concerns about SLAPPS in North America and in Europe ................ 164 
9.3 The legal position in Ireland ............................................................................................... 167 

 
 

 
9.4 Issues raised during the review ......................................................................................... 168 
9.5 Comparative perspectives ................................................................................................. 168 
9.6 Comparative focus: Ontario ............................................................................................... 171 
9.7 Options for reform ............................................................................................................. 174 
Chapter 5: Alternative Dispute Resolution ................................................................................ 177 
1 Print media - Press Council and Press Ombudsman ................................................................. 177 
1.1 Establishment, Membership and Functions ...................................................................... 177 
1.2 Statistics ............................................................................................................................. 180 
2 Broadcast Media - Broadcasting Authority ............................................................................... 180 
3  Online Safety and Media Regulation Bill .................................................................................. 181 
4  Mediation Act 2017 .................................................................................................................. 182 
5 Review of the Administration of Civil Justice Report ................................................................ 183 
6 Main Issues raised in course of review ..................................................................................... 184 
6.1 Remit of the Press Council  ................................................................................................ 184 
6.2 Role of the Press Council.................................................................................................... 184 
6.3 Mediation  .......................................................................................................................... 185 
6.4 Right of reply scheme ........................................................................................................ 186 
7 Comparative Perspectives......................................................................................................... 186 
8 Options for Reform ................................................................................................................... 188 
Chapter 6: Remedies for defamation ........................................................................................ 197 
1 Damages .................................................................................................................................... 197 
1.1 Current Legal Position ........................................................................................................ 197 
1.2 Main issues raised in course of review .............................................................................. 198 
1.3 Symposium on Reform of Defamation Law ....................................................................... 201 
1.4 Comparative Perspectives  ................................................................................................. 203 
1.5 Options for reform ............................................................................................................. 204 
2 Lodgement of money in settlement of action .......................................................................... 212 
2.1 Current legal position ......................................................................................................... 212 
2.2 Main issues raised in course of review .............................................................................. 213 
2.3 Lessons from comparative jurisdictions ............................................................................ 213 
2.4 Options for reform ............................................................................................................. 213 
3  Declaratory Order, Correction Order, Order Prohibiting Publication (Injunction) and Summary 
Disposal of Action ........................................................................................................................... 214 
3.1 Current Legal position ........................................................................................................ 214 
3.2 Main issues raised in course of review .............................................................................. 216 
3.3 Symposium on Reform of Defamation Law ....................................................................... 217 

 
 

 
3.4 Comparative Perspectives ................................................................................................. 218 
3.5 Options for reform ............................................................................................................. 219 
Chapter 7: Online defamation: special considerations ............................................................... 223 
1 Overview ................................................................................................................................... 223 
2 The special nature of online defamation .................................................................................. 224 
2.1 Ease and speed of online publication ................................................................................ 224 
2.2 Complexity of online publication ....................................................................................... 225 
2.3 Liability of online service providers for user-generated content ...................................... 225 
2.4 Anonymous online statements .......................................................................................... 226 
2.5 Multiple jurisdictions ......................................................................................................... 226 
2.6 EU law dimension ............................................................................................................... 227 
3 The legal framework ................................................................................................................. 227 
3.1 The Defamation Act 2009 .................................................................................................. 227 
3.2 The e-Commerce Directive 2000 ....................................................................................... 229 
3.3 Proposed EU Digital Services Act ....................................................................................... 237 
3.4 European Convention on Human Rights ............................................................................ 240 
4 Application in practice – redress in the online defamation context ......................................... 241 
4.1 Orders against continuing or future publication ............................................................... 241 
4.2 Notice and takedown requirements .................................................................................. 244 
4.3 ‘Norwich Pharmacal’ orders............................................................................................... 244 
5 Harmful Communications and Online Safety – proposals ........................................................ 246 
5.1 The Law Reform Commission Report (2016) ..................................................................... 246 
5.2 The Online Safety and Media Regulation Bill ..................................................................... 248 
6 Comparative Perspectives......................................................................................................... 249 
7 Issues raised in submissions ...................................................................................................... 257 
8 Options for Reform ................................................................................................................... 259 
Chapter 8: Recommendations .................................................................................................. 269 
KEY RECOMMENDATIONS ............................................................................................................... 269 
Damages and juries .................................................................................................................... 269 
Taking defamation proceedings and court procedures ............................................................ 270 
Defences ..................................................................................................................................... 271 
Promoting ADR ............................................................................................................................ 272 
Special measures for digital or online defamation ................................................................... 272 
Special measures for both online and non-online defamation ................................................... 272 
DETAILED RECOMMENDATIONS ..................................................................................................... 273 
Chapter 2: Bringing Defamation Proceedings ................................................................................. 273 

 
 
9 
 
Chapter 3: Defences ........................................................................................................................ 275 
Chapter 4: Court Jurisdictions and Procedures .............................................................................. 280 
Chapter 5: Alternative Dispute Resolution ..................................................................................... 283 
Chapter 6: Remedies for Defamation ............................................................................................. 284 
Chapter 7: Online Defamation ........................................................................................................ 286 
APPENDIX 1: Main changes made by the Defamation Act 2009 ................................................. 288 
APPENDIX 2: Consultation Notice ............................................................................................. 291 
APPENDIX 3: List of Submissions Received ................................................................................ 294 
APPENDIX 4: Summary of main issues contained in written  submissions .................................. 295 
APPENDIX 5: Recent Significant Judgments ............................................................................... 299 
APPENDIX 6: Press Council Statistics ......................................................................................... 312 
Details of Complaints received by Press Council/Press Ombudsman in 2020 .............................. 312 
 
   

Chapter 1: Context and approach of this review

1.1 Introduction

The Programme for Government, Our Shared Future, commits to “review and reform

defamation laws to ensure a balanced approach to the right to freedom of expression, the right

to protection of good name and reputation, and the right of access to justice”.

Ireland is proud to rank in the top 12 countries globally for press freedom0F

. Previous legislative

reforms have abolished defamation as a criminal offence1F

, and repealed Constitutional2F

and

statutory3F

provisions regarding a historic offence of blasphemy.

This Report completes a statutory review of our law on civil liability for defamation, the

Defamation Act 2009, and makes a number of recommendations for further reform.

Defamation law in Ireland seeks to protect a person’s right to their good name and reputation

against unfair attack, while also protecting the right to freedom of expression, taking account

of the vital role in our democracy played by a free and independent press, and other civil society

actors, in providing information and debate on matters of public interest. Both rights are

protected under the Constitution: the right to good name and reputation is expressly guaranteed

by Article 40.3.2°, while the right to freedom of expression is set out at Article 40.6.1°(i).

Similarly, the European Convention on Human Rights protects the right to freedom of

expression in a democratic society, under Article 10 ECHR, and the right to reputation (and to

private and family life, also relevant in some defamation cases) under Article 8 ECHR.

The right of access to justice, also mentioned in the Programme for Government, is important

to ensuring the effectiveness in practice of both of the previously mentioned rights.

Defamation law also has to strike the right balance, in the public interest, when the rights to

good name, free expression, or access to justice of one party appear to conflict with those of

another. Both under the Constitution and under the Convention, such rights are not absolute:

the judgments of the Irish courts and of the European Court of Human Rights provide many

examples where conflicting rights have been interpreted and reconciled, in order to find a

solution which protects both rights in as harmonious a manner as possible. National legislation

seeks to establish a general framework for resolving defamation disputes that is consistent with

that mapped out under the Constitution and under the Convention. The objective set for the

review from the outset was to ensure that the Defamation Act 2009 still strikes the right balance

between competing rights, as well as ensuring effective access to justice.

Following a public consultation, the review has focused, in particular, on how Irish defamation

law can best be reformed to:

Ireland ranks 12

globally in the Reporters Without Borders’ World Press Freedom Index for 2021.

Section 35 of the Defamation Act 2009 abolished the criminal offences of defamatory libel, seditious libel and

obscene libel. See Cox, N. and McCullough, E., Defamation: Law and Practice, (2014), paras 1.25-1.26.

By the Thirty-Seventh Amendment of the Constitution (Repeal of the offence of publication or utterance of

blasphemous matter) Act 2018, which removed the offence of blasphemy from the Constitution.

By the Blasphemy (Abolition of Offences and Related Matters) Act 2019, which repealed sections 36 and 37 of

the Defamation Act 2009.

 avoid the risk of disproportionate and unpredictable awards and high legal costs

exercising a “chilling effect” on freedom of expression, and particularly, on investigative

journalism or public debate on issues of public interest;

 ensure effective and proportionate protection against unfair damage to a person’s good

name;

 develop the use of alternative dispute resolution processes and solutions, and avoid

defamation as a “rich man’s law”; and

 tackle effectively the new and specific problems raised by online defamation.

1.2 The approach of this Report

This Report presents to the Minister the results of the Department’s review of the Defamation

Act 2009. The Report sets out the Department’s analysis of the issues raised by the review,

identifies a range of options for reform, and makes recommendations for action.

However, the nature of any changes to be made to the Defamation Act remains, of course, a

matter for decision by Government.

In the first instance, following publication of the Report, the Minister and her Department will

consult in detail with the Attorney General and his Office on the preferred policy options set

out in the Report and approved by Government. That consultation will seek advice from the

Office on some constitutional and legal issues which may arise.

The General Scheme of the Defamation (Amendment) Bill will be prepared. The Minister

intends to then seek Government agreement for the detailed content of the Scheme, and for the

Bill to be prepared for publication.

1.3 Nature and objectives of the Review

Our current law on defamation is the Defamation Act 2009, which extensively updated and

consolidated Irish defamation law4F

, repealing the Defamation Act 1961 and implementing

many of the recommendations for reform made in Reports by the Law Reform Commission in

19915F

and by the Legal Advisory Group on Defamation in 20036F

Important changes made by the 2009 Act included:

 replacing the old civil wrongs of libel and slander, which applied different rules as

between written and spoken statements, with a single civil wrong of defamation;

 modernising and clarifying the definition of defamation;

 introducing clarified and modernised defences to defamation, including the important

defence of reasonable comment in the public interest that had been recently developed

by the courts;

Details of the main changes made by the 2009 Act are set out at Appendix 1 to the present Report.

LRC Report on the Civil Law of Defamation (LRC 38-1991), available at:

https://www.lawreform.ie/_fileupload/Reports/rDefamation.htm

Report of the Legal Advisory Group on Defamation, March 2003, available at:

http://www.justice.ie/en/JELR/rptlegaladgpdefamation.pdf/Files/rptlegaladgpdefamation.pdf

 providing for more defamation cases to be taken in the Circuit Court, and heard by a

judge sitting without a jury, with a maximum award in damages currently fixed at

€75,000, in order to reduce legal costs;

 providing for statutory recognition of an independent Press Council, subject to statutory

criteria set out in Schedule 2 of the Act, to protect freedom of expression of the press;

membership of the Council would be voluntary and the Council would have powers to

establish a Code of Standards for its members, and to hear and determine complaints

brought against its members by members of the public;

 introducing new remedies and mechanisms, intended to better expedite resolution of

cases.

At the same time, the 2009 Act continued the use of juries in High Court defamation cases: the

jury had been abolished for most all other civil cases (including personal injuries) by the Courts

Act 1988.

Under section 5(1) of the Defamation Act 2009, the Minister for Justice is required to carry out

a review of the operation of the Act7F

. The tasks set for the review were:

 to review the operation in practice of the changes made by the 2009 Act,

 to review recent reforms of defamation law in other relevant jurisdictions,

 to examine whether Irish defamation law, and in particular the Defamation Act 2009,

remains appropriate and effective for securing its objectives: including in the light of any

relevant developments since 2009,

 to explore and weigh the arguments (and evidence) for and against any proposed changes

in Irish defamation law intended to better respond to its objectives, and

 to publish the outcomes of the review, with recommendations on appropriate follow-up

measures.

1.4 The work of the review

The main elements in the work of the review have been:

 a public consultation, and analysis of the extensive and detailed submissions received

from a wide range of stakeholders;

 a symposium on the key themes arising from the submissions, with papers from Irish and

international experts and discussion panels for key stakeholders;

 a desk review of the relevant case-law of the European Court of Human Rights;

 a comparative review of reports and legislative reform to defamation laws in other

relevant common law jurisdictions;

Under section 5(1), the review is to be commenced ‘not later than 5 years after the passing of this Act’ and under

s. 5(2), it is to be completed ‘not later than one year after its commencement.’ In practice, this review has had to

be commenced and concluded outside the timeframe envisaged, due to the impact of the banking and financial

crisis from 2012 onwards, and the intervention of other, very urgent legislative priorities arising from its negative

economic effects; and more recently, from very urgent legislative priorities arising from BREXIT and from the

COVID-19 pandemic.

 analysis of a number of very important intervening judgments of the European Court of

Human Rights and the Irish superior courts on core issues in Irish defamation law;

 analysis of relevant EU law, particularly in relation to the duties and liabilities of internet

intermediaries for online defamation, to jurisdiction in cross-border defamation disputes

and concerns about so-called “defamation tourism”, and to the recent EU “Rule of Law”

initiative8F

; and

 monitoring a number of parallel reform initiatives in Ireland that have relevance to

reform of Irish defamation law, particularly work in progress on the reform of civil

procedures in Irish courts (the “Kelly Report”), on insurance costs and the reform of

personal injuries litigation, and on online harms and media regulation.

1.4.1 Public Consultation

In order to seek stakeholder feedback on the operation of the legislation in practice, a public

consultation in relation to the review was launched on 1 November 2016,9F

continuing into

early 2017.

The review received 41 submissions, many high quality and detailed. They raised a diverse

range of issues, reflecting the priorities and interests of different sectors.10F

Stakeholders who

made submissions included the national and local print media, RTE, the Irish SME Association

(ISME), the Irish Council for Civil Liberties (ICCL), Free Legal Advice Centres (FLAC), the

National Union of Journalists (NUJ), specialised journalists and broadcasters, the Bar Council,

Law Society, legal firms and individual lawyers, academics, the Press Council and the current

and previous Press Ombudsmen, and social media platforms (including Facebook, Twitter,

Google and Yahoo!).

All submissions were published on the Department’s website: a list, with links, is provided at

Appendix 3 of this Report.11F

Arising from the submissions, key themes for the review were identified: how best to reform

Irish defamation law to:

 avoid “chilling effects” of high/unpredictable awards and legal costs on public interest

media reporting;

 ensure effective and proportionate protection against unfair damage to a person’s good

name;

 develop the use of alternative dispute resolution processes and solutions, and avoid

defamation as a “rich man’s law”; and

 tackle effectively the new and specific problems raised by online defamation.

This element is covered below, at point 1.6.

The notice of consultation is published on the Department’s website and is at Appendix 2 to the Report.

See Appendix 3 for the list of submissions received.

A small number of further submissions was received after the symposium held in November 2019: these are

included on the website and in Appendix 3.

1.4.2 Symposium

In November 2019, the former Minister for Justice and Equality hosted a ‘Critical Perspectives’

Symposium, at the Royal Irish Academy, on the key themes identified for reform of Ireland’s

defamation laws. The Symposium was moderated by RTE’s Legal Affairs Correspondent, and

brought together media, academics, the legal profession, social media companies, NGOs and

relevant state bodies. It heard papers from three leading experts12F

on reforms to defamation law

from the Irish, European Convention on Human Rights, and international common law

perspectives, followed by two discussion panel sessions for key stakeholders.

1.4.3 Reforms to defamation law in other jurisdictions

Given that the rights to freedom of expression and to protection of reputation13F

are both

protected by the European Convention on Human Rights, the review has included a careful

examination of the case-law of the European Court of Human Rights on the balance to be struck

between these interests.

The review has also examined a range of recent reviews and reforms to defamation law in other

relevant common law jurisdictions, particularly those listed below:

 changes made to defamation law in England and Wales, by the Defamation Act 2013

(which was cited in a number of submissions to the review);

 the Report on Defamation Law in Northern Ireland, Recommendations to the

Department of Finance, published in 2016;

 the Final Report of the Law Commission of Ontario on Defamation Law in the Internet

Age, published in March 2020;

 the Australian Model Defamation Provisions, as updated on 27 July 2020 (including the

Background paper on the Model Defamation Amendment Provisions (Consultation

Draft)); and

 the recently enacted Defamation and Malicious Publications (Scotland) Act 2021.

The review has not examined US defamation law to the same extent, principally because the

very strong protection afforded to freedom of expression by the US Constitution is not subject

to a constitutional balance with the right to the protection of individual privacy or the right to

reputation and good name, in the same manner as it is under the Irish Constitution or under the

European Convention on Human Rights.14F

Dr Andrew Scott of the London School of Economics, who was a consultant to the Northern Ireland, Scottish

and Ontario Law Reform Commissions on defamation law reform; Professor Neville Cox (TCD), and Professor

Tarlach McGonagle (Universities of Leiden and Amsterdam). Their papers to the symposium are published on

the Department’s website, at: http://www.justice.ie/en/JELR/Pages/Symposium_Reform_of_Defamation_Law

Usually, as part of the right to respect for private life under Article 8 of the Convention.

Cox, N. and McCullough, E., Defamation: Law and Practice, 2014, para 1.07 – “.. comparative models of

defamation law such as those that exist in the United States, where the Constitution protects free speech in terms

that are very robust and do not protect any express right to a good name, are unlikely to be of any relevance in

so far as the Irish model is concerned.”

1.4.4 Recent significant judgments

There have been a number of very important judgments, interpreting core issues for Irish

defamation law, since the 2009 Act was enacted. These are discussed in the relevant chapters

of the Report, and summaries of a number of them are included in Appendix 5.

Three examples are particularly important for this review, as they touch on the interaction

between Irish defamation law and the European Convention on Human Rights. These are:

 the judgment of the Supreme Court in 2014 in Leech v Independent Newspapers15F

 the judgment of the European Court of Human Rights in June 2017 in Independent

Newspapers (Ireland) Ltd v. Ireland16F

and

 the judgments of the Supreme Court in July 2017 in McDonagh v Sunday Newspapers

Ltd.17F

The Leech case gave rise to considerable concerns among the media. The case clearly involved

a very serious defamation of the plaintiff, in respect of both her personal and professional life,

and the courts found that the defamation was exacerbated by the newspaper having published

doctored photographs to support the story. However, the award of €1.8 million in damages,

made by the High Court jury, was (at that time) the highest made by an Irish court in a

defamation case.

The Supreme Court on appeal reduced the award to €1.25 million, categorising the defamation

in this case as “very serious”, but not among “the most serious”, such as the defamation in a

previous case, de Rossa v. Independent Newspapers18F

. However, this element of the judgment

gave rise to confusion, as the reduced award of €1.25 million seemed to significantly exceed

the £300,000 awarded in 1997 in the de Rossa case (even if adjusted for inflation). Media

stakeholders argued that there appeared to be no clear upper limit for a “most serious”

defamation.

This anomaly in the Supreme Court’s reasoning was the focus of the European Court of Human

Rights’ judgment in Independent Newspapers v. Ireland19F

, that the Supreme Court had not

sufficiently explained its reasons for the amount allowed on appeal, and that accordingly, the

Defamation Act 1961 had not provided sufficient procedural safeguards in Irish law against

the risk of an excessive or disproportionate award of damages. The Court therefore found a

procedural breach by Ireland of the right to freedom of expression under Article 10 of the

European Convention of Human Rights, underlining that unpredictably large awards of

damages in defamation cases are considered capable of exercising a chilling effect on media

freedom of expression under Article 10.

[2014] IESC 79.

[2017] ECHR 567 (App no. 28199/15).

See: McDonagh v Sunday Newspapers. [2017] IESC 46 and McDonagh v. Sunday Newspapers (No. 2) [2017]

IESC 59. Both Leech and McDonagh referred to defamation that occurred before the Defamation Act 2009

came into force, and were therefore decided under previous legislation, the Defamation Act 1961.

[1999] IESC 63 [1999] 4 IR 432.

[2017] ECHR 567 (App no. 28199/15).

The Strasbourg Court noted, however, in its judgment that the Leech case had been decided

under the 1961 Act, and that the 2009 Act had since introduced a number of additional

procedural safeguards in defamation cases. It held that Irish defamation law was pursuing the

legitimate aim of protecting the person’s reputation, and her right to private and family life. It

also accepted the findings of the Irish courts regarding the gravity of the defamation in this

case, which it described as “a sustained and unusually salacious campaign” by the newspaper.

The month after the European Court’s judgment, in July 2017, the Supreme Court judgments

on appeal in another defamation case, McDonagh v Sunday Newspapers Ltd20F

, considered and

adopted principles set out in the Strasbourg Court’s judgment, emphasising the need for Irish

courts to ensure proportionality and transparency in defamation awards.

In concrete terms, where the High Court jury in McDonagh had awarded damages of €900,000,

the Supreme Court indicated that it would have considered an award of €75,000 as fair and

proportionate (the parties had settled the appeal just before the Supreme Court gave judgment,

so no actual order was made by the Court.)

Following the proportionality principle set out by the Supreme Court in McDonagh, the Court

of Appeal has applied similarly significant reductions to previous jury awards in a series of

defamation cases, and this development is expected to continue. Other important examples

include Kinsella v Kenmare Resources21F

, in February 2019, where the High Court jury had

previously awarded an entirely unprecedented €10 million in damages, and the Court of Appeal

reduced the award to €250,000; and Higgins v Irish Aviation Authority22F

, in June 2020, where

the High Court jury had awarded €387,000, and the Court of Appeal reduced the award on

appeal to €76,500.

These cases, and the issues arising from the judgments, are discussed further in chapters 4 and

6 of the Report.

1.4.5 Parallel reform initiatives

The review has also monitored a number of parallel reform initiatives in Ireland that have

relevance to reform of Irish defamation law. In particular:

Administration of civil justice

The work of the Working Group on Review of the Administration of Civil Justice, established

by Government Decision in March 2017 and chaired by the former President of the High Court,

Mr Justice Peter Kelly, which presented its Review of the Administration of Civil Justice (“the

Kelly Report”) to the Minister in October 2020.

The Report puts forward a comprehensive range of recommendations aimed at reforming the

administration of civil justice in Ireland, including in such areas as case management, litigation

costs, procedural reform and discovery, which are relevant to defamation proceedings.

Damages and costs in personal injuries litigation

McDonagh v Sunday Newspapers [2017] IESC 46, McDonagh v. Sunday Newspapers (No. 2) [2017] IESC

59.

[2019] IECA 54.

[2020] IECA 277.

Ongoing work, across different Government Departments and statutory and public bodies, on

insurance costs and the reform of personal injuries litigation. This includes the Cost of

Insurance Working Group, established in 2016; the Report of the Law Reform Commission on

Capping Damages in Personal Injuries Litigation (September 2020); the enactment of the

Judicial Council Act 2019, with its provisions for establishment of a Personal Injuries

Guidelines Committee; and the adoption by the Judicial Council, on 6 March 2021, of the

Personal Injury Guidelines, which will replace the Book of Quantum in personal injuries cases,

and seek to promote a better understanding of the principles governing the assessment and

award of damages for personal injuries, with a view to achieving greater consistency in awards.

Harmful communications and media regulation

The Report of the Law Reform Commission on Harmful Communications and Media Safety

(2016); and work (formerly under the Minister for Communications and now under the

Minister for Media, Tourism, Arts, Culture, Sports, and the Gaeltacht) on developing a

regulatory framework to tackle the spread of harmful online content, with the publication in

December 2020 of a revised General Scheme of the Online Safety and Media Regulation Bill.

The Online Safety and Media Regulation Bill 2022 was published on 25 January 202223F

. That

Bill does not cover online defamation as such, but it proposes to reform the regulatory

structures for online media, including replacing the Broadcasting Authority of Ireland with a

new Media Commission and Online Safety Commissioner.

A further Report of the Law Reform Commission which has been taken into account by this

review is its Report on Privilege for Reports of Court Proceedings under the Defamation Act

200924F

, published in 2019. This Report examines a specific privilege provided for fair and

accurate reports of court proceedings under section 17 of the Defamation Act 2009, following

a request made by the then Attorney General. It recommended a small number of changes: this

Report proposes to adopt those recommendations.

1.5 Defamation law under the Constitution and ECHR: need to balance rights

Defamation law in Ireland seeks to balance rights which are protected under both the Irish

Constitution25F

and the Convention for the Protection of Human Rights and Fundamental

Freedoms, more commonly known as the European Convention on Human Rights, (ECHR).26F

These are:

 the right to freedom of expression under Article 40.6.1°(i) of the Constitution;

https://www.oireachtas.ie/en/bills/bill/2022/6/.

LRC Report on Privilege for Reports of Court Proceedings under the Defamation Act 2009, (LRC 121 –

2019), available at:

https://www.lawreform.ie/_fileupload/Reports/LRC%20121-

2019%20Privilege%20for%20Reports%20of%20Court%20Proceedings%20under%20the%20Defamation%20

Act%202009.pdf

Constitution of Ireland (Jan, 2020), available at:

http://www.irishstatutebook.ie/eli/cons/en/html#article40

European Convention on Human Rights, as amended by the provisions of Protocol No. 14 (CETS no. 194) as

from its entry into force on 1 June 2010; available at:

https://www.echr.coe.int/Documents/Convention_ENG.pdf

 the right to protection of good name and reputation, under Article 40.3 of the

Constitution;

 the right to respect for private and family life under Article 8 of the ECHR;

 the right to freedom of expression under Article 10 of the ECHR.

Although the ECHR does not explicitly protect the right to a good name, the Irish Constitution

lists it as one of the very few personal rights that should “in particular” be protected.27F

This

gives rise to what has been described as a “constitutional tightrope”; necessitating the

appropriate balancing of recognised rights of reputation and free speech, not only with that of

a defamation law fit for purpose of protecting reputation, but also recognising the important

role played by an independent media and robust public debate pertaining to matters of public

interest.28F

The connection between the law of defamation and the constitutional right to one’s good name

has been made previously in Irish case-law29F

– such as, acknowledging the role of defamation

law in vindicating a citizen’s right to their good name;30F

and, invoking that right as a dismissal

against a claim of qualified privilege.31F

Alternately, it has also been found that the right to a

good name does not prevail over the right to life where it would be endangered by unwanted

disclosure.32F

Judicial views on the issue of appropriate balancing of the right to a good name

with freedom of expression have also been articulated in recent years.33F

In 2019, the authors of the Law Reform Commission (LRC) Report on Privilege for Reporting

of Court Proceedings under the 2009 Defamation Act noted a change over time in Irish case-

law. Having initially given weight to the right to a good name, and rather less to freedom of

expression, the courts, in recent years, have given more weight to freedom of expression;

having been influenced by the case-law of the European Court of Human Rights under Article

10 of the ECHR.34F

1.6 Relevance of EU law

There are also important EU law dimensions to the review, for example in relation to the legal

responsibilities of online service providers for defamatory content hosted on their platforms.

The e-Commerce Directive and proposed “Digital Services Act”

Professor Neville Cox, ‘Defamation Law and the 2009 Defamation Act’, presentation to Symposium on

Reform of Defamation Law, 14 November 2019,

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf

Cox, 2019; McGonagle, Tarlach, ‘Defamation law reform, the European Convention on Human Rights and

EU law’, presentation to Symposium on Reform of Defamation Law, 14 November 2019,

http://www.justice.ie/en/JELR/McGonagle_Paper_Defamation.pdf/Files/McGonagle_Paper_Defamation.pdf;

Cox N. and McCullough E. (2014), Defamation: Law and Practice; McMahon and Binchy (2013), Law of

Torts, 4th ed; Maher (2011), The Law of Defamation.

Hogan, Whyte, Kenny, & Walsh, ‘Kelly: The Irish Constitution’ (5th edn, Bloomsbury Professional 2018), at

para. 7.3.69

Kennedy v Hearne [1988] ILRM 531.

Hynes-O’Sullivan v O’Driscoll [1988] IR 436.

Burke v Central Independent Television plc, [1994] 2 IR 61, 189.

Hunter v Duckworth and Co Ltd [2003] IEHC 81; McDonagh v Sunday Newspapers Ltd [2017] IESC 46,

(No.2) [2017] IESC 59.

Law Reform Commission - Report on Privilege for Reports of Court Proceedings under the Defamation Act

2009 (LRC 121 – 2019).

The e-Commerce Directive,35F

adopted in 2000, seeks to facilitate free movement of

information society services between EU Member States. However, it also contains important

rules, which effectively decide the liability and responsibilities of online service providers

(such as Twitter, Google or Facebook) for the content of defamatory material posted by users

on their websites.

Part 4 of the Directive:

 prohibits Member States from imposing any general obligation on an online services

provider to monitor the information that they transmit and store (Article 15);

 sets out specific rules that exempt online service providers from legal liability for the

content held on their websites, if the provider has no actual knowledge of the nature of

that content or of any illegality;

 specifies three different levels of exemption, at Articles 12-14, depending on whether the

service provider is hosting, caching or is a “mere conduit” for the content concerned;36F

 makes each exemption conditional on the service provider complying with a graduated

“notice and takedown” regime (for example, if a hosting service provider is informed of

illegal content on its website, it must “act expeditiously to remove or to disable access to

the information”); and

 reserves the possibility of a court or administrative authority, in accordance with the

national legal system, requiring the service provider to terminate, or to prevent, an

infringement.

These provisions establish the context for online service providers complying with key

directions of national courts, such as take-down notices or “Norwich Pharmacal” orders, as

discussed in chapter 7 of the review.

On 15 December 2020, the European Commission published two important new legislative

proposals: the proposed “Digital Services Act” and the proposed “Digital Markets Act”. These

proposals aim to put in place a much more modern and more comprehensive EU regulatory

framework, applying the same framework of rules to a wider range of digital service providers.

In particular, the Digital Services Act includes new procedures aimed at ensuring faster

takedown of unlawful material, and aims to rebalance and better protect the fundamental rights

of users. These are discussed in more detail at Chapter 7 of the Report.

The legislative proposals will need to be considered and approved by the European Parliament

and by the Council before coming into effect.

1.7 Specific nature of online defamation

A fundamental change to defamation law, since the enactment of the Defamation Act 2009,

has been the rapid development of online and digital communication, which has new and

distinctive features.

The e-Commerce Directive, Directive 2000/31/EC of 8 June 2000. Transposed in Ireland by the European

Communities (Directive 2000/31/EC) Regulations, S.I. No 68/2003

‘Mere conduit’ services focus on passive transmission of large volumes of data (e.g. a traditional internet access

provider). ‘Caching’ services store large volumes of data temporarily for onward transmission: e.g. a proxy server.

‘Hosting’ services provide a platform on which users can upload, store, and transact with their own data (e.g. a

web-hosting company.)

These developments have major implications for defamation law. The 2009 Act expressly

applies to electronic communication as it does to the written or spoken word. However, it is

very clear from the work of the review that online and digital communications are often not

addressed effectively by traditional defamation law, and that new, specific legal mechanisms

need to be developed which take account of their specific characteristics. Indeed, the Law

Reform Commission’s Report on Harmful Communications and Digital Safety,37F

in 2016,

concluded that civil remedies currently available, including those under the 2009 Act, do not

provide adequate and effective redress for online defamation.

As discussed in the previous section, reforms in this area are complicated by the application of

EU law, for example the exemption from liability for defamation provided by the e-Commerce

Directive for online platforms who are hosting user-generated material but are not expressly

on notice of its content. The European Commission’s legislative proposal for a new Digital

Services Act may offer a welcome development here.

The specific features of online and digital communication include:

 the special nature of online publication – material can disseminate worldwide almost

instantly, and is often difficult to erase effectively once it’s online;

 the rapid and continuing development of different forms of online publication (for

example, the increasing use of phone based communications apps such as Whatsapp or

Instagram, in parallel to, or instead of, traditional internet platforms like Facebook);

 the sheer complexity of publication –– it can be very difficult to attribute liability for

publishing a defamatory comment given the range of different actors and capacities

involved (for example, a person posting to social media, a person re-tweeting or “liking”

a post in passing, an internet platform provider, a search engine which turns up

defamatory material, a newspaper hosting a user-generated comments page, …);

 it is extremely easy for online comments to be posted anonymously or under a false name,

making it hard to identify the poster;

 online defamation also has a specific legal dimension under the European Convention on

Human Rights –in the case of Delfi v Estonia,38F

in 2013, the European Court of Human

Rights held that it was not contrary to freedom of expression rights under the European

Convention for national law to impose liability for defamation on the owners of an

Internet news portal for (largely anonymous) defamatory comments uploaded by third

parties - even though the portal had removed the comments when notified of them; the

Court seems to have nuanced this approach in subsequent judgments by underlining that

the material amounted to hate speech;

 lawyers and courts across different jurisdictions have developed ad hoc remedies suited

to the online defamation context (the best known are the “Norwich Pharmacal” order,

requiring an internet service provider to identify an anonymous poster where so required

by a court; and the “takedown order”, a court injunction directing an internet service

https://www.lawreform.ie/_fileupload/Reports/Full%20Colour%20Cover%20Report%20on%20Harmful%20C

ommunications%20and%20Digital%20Safety.pdf.

[2015] EMLR 26 (App no. 64569/09).

provider to remove a post held to be defamatory). Arguably such remedies should be

expressly provided by legislation;

 online communication can raise complex issues about which country’s courts have

jurisdiction to deal with complaints– for example, online comments may be posted in one

country, tweeted or linked onwards by a user in a second, accessed in a third, and hosted

in a fourth. Major online service providers with an Irish base (e.g. Facebook) sometimes

make it a condition of service users’ contracts that any litigation about the service will

be taken in the Irish courts.

These issues are considered in more detail in chapter 7 of the Report, but they have had to be

taken into account across all aspects of the review.

1.8 Range of proposals made during consultation

The main issues and proposals raised in submissions are as follows: a more detailed list is

provided in Appendix 4 to the Report.

1.8.1 General issues

Many stakeholders considered that in practice, Irish law currently affords too much weight to

the protection of reputation, at the expense of freedom of expression.

Many submissions referred particularly to changes to defamation law introduced in England

and Wales in 2013, which they wished to see reproduced in Irish defamation law (these

included introduction of a “serious harm” test, and the abolition of juries in all but very

exceptional cases).

Some submissions raised the point that the right to good name is among the personal rights

expressly protected by the Constitution, and questioned whether some reforms advocated in

other submissions would be compatible with this, or with the right of access to the courts.

1.8.2 Awards of damages

Many stakeholders argued that Irish defamation awards are far too high, and are

disproportionate compared to awards in serious personal injuries cases, or to awards for

defamation in other jurisdictions. (Later submissions acknowledged that headline awards were

being reduced significantly on appeal, following the Supreme Court judgments in McDonagh,

but overall concerns persisted.)

Media stakeholders, in particular the print media, considered that high and unpredictable

awards exercise a real chilling effect on public interest reporting and on media freedom of

expression, and could threaten the economic viability of some national newspapers, given the

increasingly difficult operating environment for traditional print media.

Submissions proposed introducing a limit on the maximum award of damages, or introducing

proportionality guidelines on appropriate levels of defamation awards.

The continuation of very high awards was also seen as reducing the effectiveness of the

informal resolution and redress scheme operated by the Press Council of Ireland and the Press

Ombudsman.

1.8.3 Role of juries

Stakeholders generally considered 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. If juries were retained, they should be restricted to deciding

whether a statement was defamatory, with the judge determining how much to award in

damages.

Many stakeholders felt that juries added extra days and increased the cost of defamation

hearings, and some argued that as juries are scarce and allocated primarily to criminal cases,

waiting for a jury can cause significant delays to defamation cases getting into hearing.

Submissions also complained that there was no transparency to jury decisions (juries are not

permitted to give, or discuss, the reasons for their decisions). This lack of predictability and

transparency was seen as generating a high rate of appeals, adding to costs and delays.

Stakeholders also complained that the intention of the 2009 Act to move more defamation cases

into the Circuit Court jurisdiction (where legal costs are lower than in the High Court) is not

working to full effect, with too many plaintiffs choosing to take the risk of bringing their case

in the High Court, given the very large damages that might be awarded there by a jury.

Submissions argued that keeping juries in High Court defamation cases is contradictory, when

they have been abolished for almost all other civil cases. Some argued that juries have been

abolished (save in very exceptional circumstances) in England and Wales since 2013, without

negative effects.

1.8.4 Taking defamation proceedings

Some submissions argued that defamation cases can be taken without concrete proof of

material damage, and that it should be made more difficult, generally, to bring a defamation

case. A range of proposals included:

 introducing a “serious harm” test, as in England and Wales. This would require an

intending plaintiff to prove that the statement complained of has caused, or is likely to

cause, serious harm to his/her reputation, before a defamation case goes to hearing;

 abolishing the “presumption of falsity” in defamation cases – this would require an

intending plaintiff to prove the disputed statement is untrue, before the court could

consider whether it was defamatory;

 requiring an intending plaintiff to first prove that actual damage was caused by the

defamation, and prove the amount of loss caused; and

 requiring an intending plaintiff to give meaningful advance security that they will pay

the defendant’s costs if they lose.

One submission argued that all defamation cases should have to be taken in the Circuit Court,

with access to the High Court only on appeal.

Some submissions proposed limiting the capacity of a company or a public body to take a

defamation case by:

 providing that a company or other body cannot sue for defamation of its reputation, or

that it must prove actual financial loss before it can do so, and/or

 providing that a corporate or public body that carries out governmental or regulatory

functions cannot sue for defamation.

One submission advocated introducing specific measures to deter the making of vexatious

claims, saying there had been a recent increase in Circuit Court defamation claims taken by

customers against restaurants, pubs and shops in respect of trivial incidents.

1.8.5 Streamline court procedures

Stakeholders proposed changes to dispose of a backlog of inactive claims before the courts,

particularly a new power for a judge to dismiss a case that was not progressed by the plaintiff

within two years of issuing proceedings.

Submissions also called for more proactive case management by judges of defamation cases,

as in England and Wales, to cut down the issues in dispute at an early stage and reduce costs

and delays. Introduction of pre-action protocols was suggested for the same reason.

There were also calls to clarify the statutory tests for obtaining declaratory orders, correction

orders, summary disposal orders or orders prohibiting further publication, where the required

standard was seen as unclear, or too difficult to prove.

A small number of submissions proposed amending a provision in the Civil Legal Aid Act

1995, which expressly excludes defamation from the list of matters that may be eligible for

legal aid. They argued that the blanket exclusion may be contrary to the European Convention

on Human Rights.

Some submissions proposed changes to deter “defamation tourism”, suggesting that the Act

might require the court to be satisfied that Ireland is “clearly the most appropriate place” for a

case to be brought.

1.8.6 Defences

Proposals were made regarding the following defences and privileges under the Act:

Defence of “fair and reasonable comment on a matter of public interest” - it was suggested

that the statutory definition is too complex and too difficult to prove: the defence should be

clarified and simplified, closer to the earlier common law test;

Defence of “honest opinion” – similarly, it was suggested that the statutory formulation made

it too difficult to avail of this defence: it should be amended to revert to the previous common

law defence, known as “fair comment”;

Live broadcasts – it was proposed to extend the “innocent publication” defence, so that the

publisher of a live broadcast would not be liable for a defamatory statement made on air,

provided that it had taken reasonable precautions to prevent this happening;

Defence of having made an offer of amends - this defence was designed to facilitate early

resolution of defamation cases, and avoid unnecessary costs and delays. It essentially allows a

defendant who realises that it has in fact defamed the claimant, to “put its hands up” at an early

stage, publish an apology and correction, and offer to pay a sum in damages and costs. If the

parties agree on this approach, but differ on the appropriate amount, the figure is determined

“by the court”. In 2018 the Supreme Court held39F

that in the context of assessing damages, that

phrase must be interpreted as meaning by a jury. Submissions to the review argued that in

practice, this interpretation undermines the effectiveness and attractiveness of the offer of

amends as a means of early resolution; and proposed amendment to specify that in default of

agreement, the amount shall be fixed by a judge sitting alone.

Absolute and qualified privilege40F

- the changes proposed included clarifying their application

to citizen journalists and bloggers, expanding their geographical scope to cover reports from

certain international organisations and certain countries outside the EU, and clarifying their

application in cases of honest mistake.

1.8.7 Alternative dispute resolution (ADR)

Proposals to encourage mediation and other alternative dispute resolution included:

Awareness-raising

Including a reference in the Act to encourage parties to avail of mediation;

Introducing a legal obligation for solicitors acting for claimants in press defamation cases to

inform them of the alternative dispute resolution available via the Press Council and Press

Ombudsman.

Role of the Press Council

Clarifying that online publications and online-only news sites fall under the Press Council’s

remit;

Allowing broadcasters, and individual journalists or self-publishers, to become members of the

Press Council and to subscribe to the standards of the Press Council Code of Practice;

Changing the remit of the Press Council, by allowing it to levy fines on its members for breach

of the Code of Practice (up to €25,000).

Courts to take account of a party’s engagement with ADR

Allowing or requiring judges to take account of whether a party has engaged with ADR

mechanisms;

Higgins v. The Irish Aviation Authority, [2018] IESC 29 [2018] 3 IR 374 Dunne J.

Absolute privilege and qualified privilege are older defences to defamation, which protect fair and accurate

reporting of a range of specified events (parliamentary debates, court proceedings, …) which are considered to be

of general public interest.

Introducing a requirement for courts to consider whether parties took part in the Press Council

complaints process, when considering the appropriate level of damages;

Requiring an intending defamation plaintiff to take part in alternative dispute resolution before

they can issue legal proceedings.

1.8.8 Digital and online defamation

There was demand from some stakeholders to strengthen sanctions for digital and online

defamation: but other stakeholders opposed such changes.

The print media argue that their online publication activities do not enjoy an equal playing field

with those of internet service providers, due to the EU e-Commerce Directive.

Internet service providers benefit, under that Directive, from a wide exemption from liability

for defamatory material posted by third parties, and opposed changes to their existing regime.

The main other proposals made:

 provide a quick, cheap statutory process as an alternative to a “Norwich Pharmacal

order”41F

- the Norwich Pharmacal process is seen as expensive and risks being too slow

to prevent damage;

 introduce a preliminary court mechanism to rule quickly on whether material appears

defamatory – to enable an online platform to take down the material quickly under

protection of initial court ruling;

 provide legal clarity and certainty on the legal requirements for a person who is the

subject of online defamation, and is seeking to notify the online service provider who

hosts that user-generated content, and to require the provider to take down the defamatory

content, in accordance with the e-Commerce Directive;

 introduce a Notice of Complaint procedure for the above situation, defining a standard

form of notice to be given, and the process to be followed;

 to provide legal certainty and clarity for online service providers, define the expected

time period for the notified online service provider to take down the material

“expeditiously” as required by the Directive;

 review the definition of the limitation period (deadline) for issuing proceedings in a case

of online defamation - the current wording is seen as confusing.

1.9 Main changes recommended by this review

The key recommendations proposed by the Report are set out below: the full list of

recommendations is provided in Chapter 8 of the Report.

A “Norwich Pharmacal” order is a common-law court order issued to a an internet service provider who hosts

a platform for user-generated content, directing them to identify an anonymous poster/account holder who has

posted defamatory material so that he/she can be served with proceedings or court orders.

Damages and juries

 Abolish the use of juries in High Court defamation cases: provide that all defamation

cases will be heard by a judge alone, sitting without a jury. The judge will decide the

nature and level of redress, including the amount of any damages, as well as whether

defamation has occurred;

(As well as reducing the incidence of excessive or disproportionate awards, this change

is expected to significantly reduce delays and legal costs, reduce the length of hearings,

provide greater certainty which will facilitate earlier settlement, and ensure greater

transparency on the reasoning behind decisions);

 Clarify (following the 2018 Supreme Court judgment in Higgins v Irish Aviation

Authority) that where a defendant makes an offer of amends, the damages to be fixed

by the court, in default of agreement between the parties, will be fixed by a judge sitting

alone, not by a jury;

 It is not recommended to introduce a book of quantum for defamation damages;

(Superior court judgments have expressed the view that such an approach is very

difficult to apply to the defamation context, where the injury is mainly intangible; the

book of quantum was based on data from about 51,000 personal injuries cases with

extensive specialised medical evidence on the extent and progression of the defendant’s

injuries, but there are far fewer defamation cases to generate a range of data and as

High Court defamation cases are normally decided by a jury, no information is

available on the reasons for the amount awarded);

 Allow a defendant to make a lodgement in court, by way of reasonable compensation

offer, where it has made an offer of amends but the parties cannot agree on quantum of

damages - in order to facilitate early settlement of proceedings;

 It is not recommended to introduce a cap on damages in defamation cases.

(This would give rise to difficult constitutional issues, which would need very careful

consideration. Moreover, a statutory cap would also risk being too rigid. In England

and Wales, there is no statutory cap for damages in defamation cases, and an informal

judge-made maximum is used. This suggests that the guidance on proportionality and

appropriate ranges for awards that is provided in judgments of the Supreme Court and

Court of Appeal may similarly, in Ireland, prove more effective than a statutory cap.)

Taking defamation proceedings and court procedures

 To reduce delays and address the proliferation of stale claims, provide an express power

for the court to dismiss a defamation claim that is not progressed by the plaintiff within

2 years of issue, unless special circumstances justify the plaintiff’s delay;

 To address the perceived risk of international forum-shopping or ‘defamation tourism’

into Ireland: require the court to be satisfied that Ireland is ‘clearly the most appropriate

place’ for action to be brought (as in England and Wales), in cases not falling under the

rules of the Brussels I Recast Regulation or of the e-Commerce Directive;

 It is not recommended to abolish the presumption of falsity in defamation cases (i.e. to

require that a person claiming defamation must prove that the defamatory statement is

untrue, before the court will consider whether it is defamatory).

(The fairest approach is that the responsibility to proving the truth or untruth of a

defamatory statement should lie with the person who chose to make that statement. To

reverse that approach risks preventing the plaintiff from being able to vindicate their

reputation - it may be very difficult to ‘prove a negative’ for example – and could raise

constitutional difficulties.

However, keeping the presumption of falsity should be balanced by this Report’s other

recommendations (below) on introducing a ‘serious harm’ test in relation to certain

‘transient defamation’ claims, on strengthening the defence of fair and reasonable

publication in the public interest, and on introducing an ‘anti-SLAPP’ summary

dismissal mechanism.

The latter two recommendations also address the concern expressed, that an

investigative journalist might be unable to prove that their article was true, if

journalistic ethics prevented them identifying their sources.);

 It is not recommended to introduce a general requirement for a plaintiff to first prove a

‘serious harm’ test; however, this should be considered in the two instances below:

- Consider introducing a ‘serious harm’ test for certain ‘transient defamation’

claims (claims regarding a statement made in non-permanent form, in the course

of providing or refusing retail services) to prevent frivolous or vexatious actions;

- Provide (as in other common law jurisdictions) that a body corporate may not

sue for defamation of its reputation unless it first shows that the statement has

caused or is likely to cause serious harm: in the case of a body that trades for

profit, this means serious financial loss; consider whether smaller entities (such

as SMEs) should be exempted from this requirement);

 Consider whether to provide (as in England, Wales and Scotland) that a public body is

not entitled to sue for defamation of its own reputation (such a change would not

prevent it from suing on behalf of one of its employees or officers, if they are defamed

arising from their work);

 Introduce a new ‘anti-SLAPP’ mechanism, to allow a person to apply to court for

summary dismissal of defamation proceedings that he/she believes are a SLAPP.

(SLAPP stands for ‘Strategic Lawsuit Against Public Participation’: the concept

originated in North America in the 1990s, but is now widely used. Essentially, it refers

to the strategic and abusive use by a powerful entity of vexatious litigation, to weaken

and deter public interest discussion (and in particular, investigative journalism).

A typical SLAPP is a groundless or grossly exaggerated lawsuit - typically issued by

wealthy companies or individuals, against weaker parties who have engaged in

criticism or debate that is uncomfortable to the litigant, on an issue of public interest.

The purpose of the lawsuit is to censor, silence and intimidate the critics, by burdening

them with deliberately maximised costs of legal defence until they abandon their

criticism or opposition.

Many of the submissions to the Review echoed this concept, with media organisations

in particular complaining of defamation proceedings, and maximised legal costs, being

used by wealthy interests to threaten and silence investigative journalism.);

 Recommend removal of the blanket exclusion of defamation claims from eligibility for

civil legal aid, under the Civil Legal Aid Act: this issue, together with the relative

priority to be afforded to defamation cases, should be considered within the

forthcoming overall review of civil legal aid;

 Encourage proactive judicial case management of defamation claims, in line with the

Kelly Report, in order to reduce delays and costs;

 No increase in the limitation period to bring a defamation action (currently one year,

exceptionally the court may authorise up to two).

Defences

 Simplify and clarify the defence of ‘fair and reasonable comment in the public interest’,

on the lines applied in UK jurisdictions and in Canada, to provide a defence where a

statement is on a matter of public interest, the publisher reasonably believed that its

publication was in the public interest and the defendant acted responsibly in the

circumstances regarding trying to verify the accuracy of the statement;

(This defence is particularly important for the media, but is available to any publisher

of a statement);

 Amend the defence of innocent publication, as recommended by the Report of the Legal

Advisory Group and proposed by NUJ, to exempt a broadcaster from liability for a

defamatory statement made by a third party during a live broadcast, provided that it has

taken reasonable precautions prior to the broadcast, and exercises reasonable care

during the broadcast;

 Amend the defence of ‘honest opinion’ to remove the condition that the speaker must

have believed the opinion to be ‘true’. The opinion will still have to be ‘honestly held’.

Promoting ADR

 Provide a statutory obligation for parties to a defamation dispute to consider mediation

(as under the General Scheme of the Online Safety and Media Regulation Bill 2020);

 Require solicitors representing clients in defamation cases to advise their clients, before

issuing proceedings, of the availability of mediation under the Mediation Act 2017, the

redress and mediation options provided by the Press Council and Press Ombudsman,

and the right of reply scheme provided by the Broadcasting Authority of Ireland;

 Clarify that online publications by members of the Press Council, and online-only news

sites who apply for membership of the Press Council, are included within its remit;

consider also opening membership to online publications by broadcasters (which,

unlike broadcasts, are not covered by the Broadcasting Act);

 Include participation by a party in alternative dispute resolution processes among the

factors to be considered by a judge in assessing the redress to be awarded in defamation

proceedings.

Special measures for digital or online defamation

 Provide for a statutory Notice of Complaint process, on the lines envisaged by the e-

Commerce Regulations, recommended by the Law Commission of Ontario, and

provided by the Australia Model Defamation Law - to make it easier, quicker and

cheaper to notify an online publisher (including intermediary platforms) of defamatory

content and request its takedown, or request identification of the poster; and define a

timeframe for the required ‘expeditious’ removal of defamatory content, to provide

clarity and support early and quick resolution of disputes;

 Provide that the defence of innocent publication applies to operators of websites

(including non-commercial websites) in relation to user-generated comment, (as in UK

jurisdictions, Australia and Ontario), subject to the obligation to take down content

expeditiously, and/or identify the poster, if notified of defamatory content;

 Provide a statutory power to grant a ‘Norwich Pharmacal’ order (directing an online

services provider to disclose the identity of an anonymous poster of defamatory

material). This will make it easier and quicker to obtain an identification order, by

providing that such orders can also be granted by the Circuit Court, along the lines

recommended by the Law Reform Commission in 2016, rather than only by the High

Court, as at present. .

Special measures for both online and non-online defamation

 Following recent court judgments, revise sections 28, 30, 33 and 34 of the Defamation

Act 2009 to clarify the tests that must be satisfied for the court to make an order

(including an interlocutory order) prohibiting further publication (a ‘take-down order’),

an order declaring that a statement is defamatory, a correction order, or an order for

summary relief;

 Review the statutory requirement at section 33 of the Defamation Act for the plaintiff,

having proved that the statement is defamatory, to also establish that the defendant has

no defence likely to succeed, before the court can grant an interlocutory take-down

order;

 Amend section 30 of the Act (‘Correction order’) to provide that unless the plaintiff

requests otherwise, the correction of a defamatory statement is to be published with

equal prominence to the publication of the defamatory statement.

Chapter 2: Bringing Defamation Proceedings

2.1 What is meant by defamation?

In an action for defamation, the plaintiff must prove that the statement complained of was

published, that it concerned him/her, and that it carried a defamatory meaning.42F

Publication means “the publication, by any means, of a defamatory statement … to one or more

than one person”, other than the person concerned by the statement43F

A ‘statement’ “includes -

(a) a statement made orally or in writing,

(b) visual images, sounds, gestures and any other method of signifying meaning,

(i) broadcast on radio or television, or

(ii) published on the internet, and

(d) an electronic communication.”44F

A defamatory statement concerns a person45F

if it could reasonably be understood as referring

to him/her.46F

A defamatory statement is one which:

“tends to injure a person’s reputation in the eyes of reasonable members of society”.47F

A statement is defamatory if it has an objective tendency to lower a person’s reputation; it is

not necessary to show that the plaintiff suffered identified financial damage, but the extent of

any damage suffered is relevant for the purposes of assessing the appropriate level of damages.

Determining whether a statement has a defamatory meaning involves determining (i) the

“natural and ordinary meaning” of the statement, including any inference which may be drawn

from it; (ii) if necessary, any innuendo understood only by people with particular additional

information or knowledge; and (iii) whether the meaning that may be attributed to the statement

is defamatory.48F

Maher J., The Law of Defamation, 2

edn. at p.19.

Section 6(2) Defamation Act 2009. However, there is no publication if a defamatory statement is published to

the person to whom it relates and to another person where (a) it was not intended that the statement would be

published to the other person, and (b) it was not reasonably foreseeable that publication of the statement to the

first person would result in it being published to the other person (section 6(4)).

Section 2.

A ‘person’ includes a body corporate (section 12).

Section 6(3)

Defamation Act 2009, section 2. (There is an exception if the statement is true or substantially true – see

below.)

Maher, The Law of Defamation, 2

edn., at p. 19.

In accordance with the “single meaning rule”:

“the court – and, in a jury action, in effect the jury – must settle on a single meaning to

be ascribed to the relevant words of a particular, discrete charge contained in the

publication in question.”49F

A publication can however contain “two or more distinct allegations which are conveyed by

different sets of words”.50F

Section 14 of the Act provides that the court (judge)51F

may give a ruling as to whether the

statement in respect of which the action was brought is reasonably capable of bearing the

imputation pleaded by the plaintiff, and as to whether that imputation is reasonably capable of

bearing a defamatory meaning.

A defamatory statement may give rise to more than one defamatory imputation but, in

accordance with section 9 of the 2009 Act, a plaintiff has only one cause of action in respect

of the statement.52F

2.2 The presumption of falsity

2.2.1 The current legal position

A statement is not considered to be defamatory if it is true in all material respects – even if it

would tend to lower the person’s reputation in the eyes of reasonable members of society.

However, the plaintiff is not required to prove that the contested statement is untrue. Once they

have shown that the statement concerns them, tends to injure their reputation, and was

published by the defendant, defamation law then assumes that the statement was untrue – this

is called the “presumption of falsity”.

It is for the defendant, if they want to rely on arguing that the statement is not defamatory

because it is true, to prove that this is so - this is called the “defence of truth” (see chapter 3).

2.2.2 Issues arising for the review

The presumption of falsity is a long-established feature of defamation law across common law

jurisdictions. However, earlier reviews of Irish defamation law have also been asked to

consider whether it should be changed - in 1991 and in 2003 (see below).

There are arguments on both sides of this debate.

In favour of maintaining the presumption of falsity, it can be argued that it would be unfair to

require a person who has been defamed to prove that the statement is untrue, before they can

Speedie v Sunday Newspapers Ltd, [2017] IECA 15.

ibid [Speedie].

Section 14(6) provides that an application under this section ‘shall be determined, in the case of a defamation

action brought in the High Court, in the absence of the jury’.

Section 9 provides:

A person has one cause of action only in respect of the publication of a defamatory statement concerning the

person even if more than one defamatory imputation in respect of that person is borne by that statement.

ask the court to vindicate their reputation. A person who is alleged to be a “habitual liar”,

dishonest, incompetent, involved in criminal wrongdoing, or to have been sexually unfaithful

to their partner, for example, may well wonder how they are to find evidence to “prove a

negative”, and may feel that trying to do so will require them to publicise the defamatory

allegation even further. The plaintiff will point out that it was not their choice to make such a

statement, or to publish it in the manner chosen by the defendant, and that the defendant should

therefore bear the responsibility of justifying the statement by producing evidence to show why

they say it is true.

In favour of removing the presumption of falsity, it can be argued that it can also be difficult

to prove the truth of a true statement, and that this applies particularly to a journalist or news

editor - who may be prevented by professional ethics from identifying their source, or who may

– under acute time pressure on an important public interest story - have run with publication,

only to discover subsequently that some element of the article goes beyond what can be

authenticated.

In 1991, in the Law Reform Commission Report on the Civil Law of Defamation,53F

the majority

of the Commission argued that the practical consequences of the presumption of falsity may

result in defendants being in a position where they have good reason to believe that material

they have published is true, but may find it difficult to establish its truth in court. They

expressed the view that it is neither just nor in the public interest that defendants should “be

affected in such cases by the existence of an artificial presumption at variance with the facts”.54F

It should be noted however that this recommendation was made before the defence of

reasonable publication in the public interest (see chapter 6) had been developed.

The minority view of the Commission was that “(t)he person who asserts, from his sources of

information, that a particular state of affairs exists should bear the burden of proving his

assertion.” They noted that it is not always easy to prove a negative and argued that a

requirement on the plaintiff “to prove his or her innocence is…, inconsistent with the spirit of

the constitutional requirement that the State vindicate the good name of every citizen in the

case of injustice done”.55F

The Report of the Legal Advisory Group on Defamation56F

, in March 2003, recommended

maintaining the presumption of falsity.

The Group noted that the presumption of falsity is only relevant where the defence of truth is

pleaded, and that the vast majority of plaintiffs would normally choose to give evidence that

the allegations against them were false, and would therefore be available for cross-examination.

However, bearing in mind that a plaintiff could choose not to give evidence on his/her own

behalf and of the burden which this might place on a defendant, the Group recommended that

the law should require a plaintiff to swear an affidavit verifying the particulars of his/her claim.

It pointed out that the consequences of this would be that a plaintiff could be examined in

relation to the contents of the affidavit.

December 1991.

Law Reform Commission Report on Civil Law of Defamation, p. 56.

ibid at p. 57.

Report of the Legal Advisory Group on Defamation (March 2003), p. 11.

This was the approach adopted in the 2009 Act57F

, which imposes an obligation on the plaintiff

(and defendant) to swear an affidavit verifying any allegations or assertions of fact, in any

action other than an application for a declaratory order, and to make himself/herself available

to give evidence in court and be cross-examined by the other party. It is an offence for a person

to make a statement in an affidavit that is false or misleading in any material respect, or that

he/she knows to be false or misleading.

In the course of the Oireachtas debates on the Defamation Bill 2007, the then Minister for

Justice explained that the “Government took the view, …., that the presumption of falsity is an

important safeguard for the plaintiff” and that the new requirement under the Bill to swear an

affidavit58F

was introduced to “ensure at least that truth is a premium in these actions”.59F

A number of submissions to the review argued that the presumption of falsity should be

abolished and that the plaintiff should be obliged to prove the statement untrue as part of

proving that it was defamatory.60F

This suggestion was based on the 1991 Law Reform

Commission recommendation, mentioned above, that the presumption of falsity should be

abolished.61F

Moreover, it was argued that the presumption of falsity means that a plaintiff can

win a defamation case, notwithstanding that the words about which they complain are true (if

a defendant has difficulty in proving their truth in court).62F

In his presentation to the Symposium on Reform of Defamation Law, in 2019, Professor

Neville Cox noted that the burden of proving that the contested statement is true falls on the

defendant. He stated that “for investigative journalists who are relying on confidential sources

(and are known to be so relying), this can be impossible even if the statement is, in fact, true”63F

Professor Cox went on to say that the alternative approach, perhaps only or especially in cases

of public interest publication and where the standards of reasonable journalism outlined in

section 26 of the Defamation Act have been followed, would be to reverse the burden of proof,

and require the plaintiff to prove that the contested statement is untrue. Without taking a

position on the issue, he stated that “to the extent that this appears to be an issue that represents

an impediment to sound investigative journalism, it is something that, arguably, merits

consideration”.64F

2.2.3 The requirements of the European Convention on Human Rights

One submission to the review questioned whether the presumption of falsity was compatible

with the right to freedom of expression under Article 10 of the European Convention on Human

Rights65F

, arguing that the European Court of Human Rights “has found that the presumption

Section 8

Section 8.

Seanad Committee Stage, 7 December 2007.

Business Journalists’ Association, Irish Times, Newsbrands, ICCL.

Report of the Law Reform Commission on the Civil Law of Defamation.

See for example, Newsbrands submission on the Review of the Defamation Act 2009,

http://www.justice.ie/en/JELR/NewsBrands_Ireland.pdf/Files/NewsBrands_Ireland.pdf

Prof. Neville Cox, (Trinity College Dublin), ‘Irish defamation law: the 2009 Act and the need for reform’ at

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf .

ibid.

Irish Council for Civil Liberties, referring to Steel and Morris v UK [2005] ECHR (App no. 68416/01)and Wall

Street Journal Europe v United Kingdom, [2009] ECHR 471(App no. 28577/05) at p. 4.

of falsity can infringe on the right to freedom of expression, in particular where a statement is

made in order to contribute to public debate and where there is already significant imbalance

in the equality at arms”.

The European Court of Human Rights (‘ECtHR’) has held in a series of judgments that the

presumption of falsity in civil defamation proceedings is not, in principle, incompatible with

the right to freedom of expression in Article 10 of the ECHR66F

. But it is worth considering in

more detail the exceptions identified by the Court and the factors that are taken into account.

In 2002, the ECtHR considered McVicar v. UK.67F

The applicant, a journalist, had published a

newspaper article, held to be defamatory, which alleged that a prominent national athlete was

using prohibited drugs illegally to boost his sporting performance. The journalist claimed that

the presumption of falsity in English law, which required him to prove that the allegations made

in his article were “substantially true on the balance of probabilities” to avoid a finding of

defamation, was a disproportionate interference with his right under Article 10.2 of the

Convention to freedom of expression. However, the Court held that the presumption was a

justified restriction on freedom of expression rights:

“84. [The Court] recalls further that, in Bladet Tromsø and Stensaas (cited above, § 66) it

commented that special grounds were required before a newspaper could be dispensed from its

ordinary obligation to verify factual statements that were defamatory of private individuals. The

question whether such grounds existed depended in particular on the nature and degree of the

defamation in question and the extent to which the newspaper could reasonably regard its

sources as reliable with respect to the allegations. ……

87. In all the circumstances, the Court considers that the requirement that the applicant prove

that the allegations made in the article were substantially true on the balance of probabilities

constituted a justified restriction on his freedom of expression under Article 10 § 2 of the

Convention, in the interests of the protection of the reputation and rights of Mr Christie.”

In 2005, in Steel and Morris v. UK,68F

the ECtHR was asked to consider defamation proceedings

taken by McDonald’s, the fast-food restaurant chain, against two members of a small NGO in

London which campaigned on social and environmental issues. In 1986, Ms Steel and Mr

Morris had published and distributed a leaflet which accused the company of a range of

unethical global policies and practices with serious negative environmental and social effects.

They argued that these statements were not defamatory - or alternatively, were substantially

true or amounted to fair comment on matters of fact.

Both the High Court, and the Court of Appeal, upheld the trial judge’s finding that a number

of the leaflet’s allegations were defamatory.

Ms Steel and Mr Morris were unemployed, or in low-wage employment, throughout the

proceedings but were ineligible for legal aid. They therefore represented themselves, apart from

occasional short-term pro-bono assistance, throughout the “longest trial (either civil or

criminal) in English legal history” (313 court days spread over two and a half years), with the

defamation proceedings including the appeal continuing over nine years altogether. In contrast,

the applicants pointed out that McDonald’s economic power exceeded that of many small

countries, with global sales in 1995 amounting to some $30 billion: the UK Government

Maher, The Law of Defamation, 2

edn, (2018) at para.5.05; Gatley on Libel and Slander, 12

edn., para 11.4.

[2002] 35 EHRR 22 (App no. 46311/99) at paragraphs 84 and 87.

[2005] ECHR (App no. 68416/01).

estimated that McDonald’s had spent over £10 million on its legal costs in this case. The

ECtHR was asked to consider whether, in these circumstances, the presumption of falsity was

compatible with Article 10 of the Convention.

The Court considered that while the NGO members were not journalists, “in a democratic

society even small and informal campaign groups, [such as in this case] … must be able to

carry out their activities effectively, and there exists a strong public interest in enabling such

groups and individuals outside the mainstream to contribute to the public debate by

disseminating information and ideas on matters of general public interest such as health and

the environment.”

Nonetheless, it recalled that “The safeguard afforded by Article 10 to journalists in relation to

reporting on issues of general interest is subject to the proviso that they act in good faith in

order to provide accurate and reliable information in accordance with the ethics of journalism,

and the same principle must apply to others who engage in public debate. … in a campaigning

leaflet, a certain degree of hyperbole and exaggeration is to be tolerated, and even expected.

In the present case, however, the allegations were of a very serious nature and were presented

as statements of fact rather than value judgements.” 69F

The Court added that:

“… in McVicar … it held that it was not in principle incompatible with Article 10 [ECHR] to

place on a defendant in libel proceedings the onus of proving to the civil standard [i.e. on the

balance of probabilities] the truth of defamatory statements. …

The Court further does not consider that the fact that the plaintiff in the present case was a

large multinational company should in principle deprive it of a right to defend itself against

defamatory allegations or entail that the applicants should not have been required to prove the

truth of the statements made.”70F

However, “If … a State decides to provide such a remedy to a corporate body, it is essential,

in order to safeguard the countervailing interests in freedom of expression and open debate

that a measure of procedural fairness and equality of arms is provided for.”

The Court had already found that the lack of legal aid rendered the defamation proceedings

unfair, in breach of Article 6.1. It added that inequality of arms was also relevant to the Court’s

assessment under Article 10. Effectively, under English law, “the applicants had the choice

either to withdraw the leaflet and apologise to McDonalds, or bear the burden of proving,

without legal aid, the truth of the allegations contained in it. Given the enormity and complexity

of that undertaking, the Court does not consider that the correct balance was struck between

the need to protect the applicants’ rights to freedom of expression, and the need to protect

McDonald’s rights and reputation. … The lack of procedural fairness and equality therefore

gave rise to a breach of Article 10 in the present case.”

In 2009, in Wall St Journal Europe v. UK71F

, the ECtHR again considered whether the

presumption of falsity in English defamation law was compatible with Article 10 of the

ibid, paras 89-90.

Steel and Morris v UK [2005] ECHR (App no. 68416/01), at paras 93-94.

[2009] ECHR 471 (App no. 28577/05).

Convention. In February 2002, the paper had published a front page article, claiming that the

Saudi Arabian monetary authority was monitoring bank accounts associated with certain

prominent named businesses, including the Jameel Group of companies, to prevent funds being

transmitted to terrorist organisations. Mr Jameel sued for defamation. The paper argued that

the article was based on investigative journalism in Saudi Arabia, confirmed with sources in

the US Treasury Department, but that it could not disclose its five Saudi sources without

exposing them to brutal reprisals. Accordingly, it was unable to use truth (then termed

“justification”) as a defence. The paper argued that this rendered the presumption of falsity

unfair.

The paper also invoked the “public interest journalism” privilege, established in 1999 by the

House of Lords in Reynolds v. Times Newspapers72F

. That argument failed in the High Court

and Court of Appeal, but succeeded in the House of Lords, which held that the Wall St Journal

article perfectly fitted the Reynolds privilege, which the lower courts had interpreted too

narrowly. The article was on a subject of great public interest, and it demonstrated “responsible

journalism” - written by an experienced specialist reporter, using responsibly gathered material,

approved and verified by senior staff, unsensational in tone, and factual in content.

Accordingly, the article was protected by “Reynolds privilege” (see chapter 3) and was not

defamatory.

The ECtHR held that the Wall St Journal application was inadmissible. In view of the House

of Lords judgment that the article was protected by Reynolds privilege, the paper could not

complain that its Article 10 rights had been violated.

The Court again recalled that the protection afforded to journalists under Article 10 “is subject

to the proviso that they are acting in good faith in order to provide accurate and reliable

information in accordance with the ethics of journalism” (Bladet Tromso v Norway)). It

repeated (as in McVicar and Steel and Morris) that “In assessing the legitimacy of statements

of fact, the Court considers that it is not, in principle, incompatible with Article 10 to place on

a defendant in libel proceedings who wishes to rely on the defence of justification [truth], the

onus of proving to the civil standard the truth of defamatory statements”.

The Court recalled, however, that its own judgments recognised that a newspaper might be

“dispensed from its ordinary obligation to verify statements” in certain circumstances – for

example, if the defamatory statements “are derived from a source that could reasonably be

relied on”- and in such cases, “it would not be consistent with Article 10 to require that the

newspaper establish the truth of the statements at trial.”

Conversely, the Court observed that “the plea of qualified privilege based on Reynolds v. the

Times Newspapers is an exceptional defence, intended to ensure free communication without

the fear of litigation, even if that involves making defamatory statements of fact which cannot

be proved to be true. It exempts newspapers from their ordinary obligation to verify factual

statements that are defamatory, so long as they have, taking into account all the relevant

circumstances, acted in accordance with the standards of ‘responsible journalism’.”

Finally, in Kasabova v. Bulgaria73F

, the ECtHR considered a case where a journalist had been

convicted of criminal libel, and was ordered to pay damages, fines and legal costs. The Court

Reynolds v Times Newspapers Ltd [2001] 2 AC 127.

[2011] ECHR (App no. 22385/03).

found a violation of Article 10, because the financial penalties imposed (totalling almost three

years’ salary for the journalist) were considered disproportionate. However, the legal

requirement that the journalist establish the truth of the allegations, to avoid a finding of

defamation, was not considered contrary to Article 10.

The defamatory article, published in the local newspaper, alleged that bribes were taken by

four named Education Ministry officials for falsely admitting children to special secondary

schools offering a more prestigious range of subjects, without the children having to pass the

normal competitive examination, and at a fraction of the normal school fees. However, the

journalist was unable to prove that these allegations were true. A witness gave evidence on her

behalf that a number of local parents admitted to him privately that they had personally paid

such a bribe, but he could not name them for obvious reasons.

The Court held that “The statements made by the [journalist] were clearly allegations of fact

… and as such susceptible to proof… . There was therefore nothing inherently wrong with her

being asked to demonstrate the truth of her assertions … [this] embodies the so-called

‘presumption of falsity’ …. The Court has dealt with this matter in the context of civil

proceedings in the case of McVicar, and has concluded that it is not, in principle, incompatible

with Article 10 to place on the defendant in libel proceedings the burden of proving to the civil

standard the truth of defamatory statements. It later confirmed that ruling in Steel and Morris,

subject to the proviso that the applicant must be allowed a reasonable opportunity to do so.

In Rumyana Ivanova, [the Court] held, in referring to criminal libel proceedings, that a

requirement for defendants to prove to a reasonable standard that the allegations made by

them were substantially correct did not, as such, contravene the Convention… .”

The Court “considers it necessary to emphasise that the reversal of the burden of proof

operated by that presumption [of falsity] makes it particularly important for the courts to

examine the evidence adduced by the defendant very carefully, so as not to render it impossible

for him or her to reverse it and make out the defence of truth…” (para. 62).

However, it was “ not persuaded that the presumption of falsity, in the instant case, ran counter

as such to Article 10, for two reasons. First, the right to freedom of expression is not absolute

and its exercise must not infringe other rights protected by the Convention, such as the right

to private life under Article 8 …. States cannot be said to have gone beyond [their margin of

appreciation] as a result of using legislative techniques – such as the presumption of falsity –

whose aim is to enable those subjected to potentially defamatory attacks to challenge the truth

of allegations which risk harming their reputations.

Secondly and more importantly, the presumption, as applied in the instant case, had a limited

effect on the outcome … [In determining whether criminal libel is established,] the Bulgarian

courts seek, as they did in the case in hand, to establish whether [the person] has complied

with the tenets of responsible journalism… libel defendants may be relieved of the obligation

to prove the truth of the facts alleged in their publications, and avoid conviction, simply by

showing that they have acted fairly and responsibly. That mechanism greatly reduces the

presumption of falsity’s potential negative effect on freedom of expression.” (para 61).

“Indeed, in situations where on the one hand a statement of fact is made and insufficient

evidence is adduced to prove it, and on the other the journalist is discussing an issue of genuine

public interest, verifying whether the journalist has acted professionally and in good faith

becomes paramount …”. (para 63). In this case, the national courts had considered this issue

carefully and their “finding that the [journalist] had failed to sufficiently research her article

before going to press, and had thus failed to act as a responsible journalist, could not be

considered as manifestly unreasonable… .” (para. 68). Accordingly, the presumption of falsity

did not breach the right to freedom of expression under Article 10.

In summary, therefore, it appears that:

 The Court affords particular protection to the Article 10 freedom of expression rights of

journalists - and also to NGOs or individuals - seeking to stimulate discussion on matters

of genuine public interest.

 It underlines however that such protection depends on journalists – and NGOs or

individuals – acting professionally and in good faith, seeking to provide accurate and

reliable information, checking their facts, and acting fairly and responsibly/in accordance

with the ethics of journalism. If a source is one which can reasonably be relied on, the

journalist may be dispensed from the obligation to verify the facts in issue.

 The more serious the allegation, the higher the standard of care in checking the facts.

 The Court recognises the presumption of falsity as a measure designed to protect the right

to reputation or the right to privacy of individuals.

 In principle, it is not contrary to Article 10 to require a journalist/NGO/individual to

prove, on the balance of probabilities, that a disputed statement is true or substantially

true, in the interests of protecting individual reputations.

 However, courts should be vigilant to ensure that the journalist is allowed a reasonable

opportunity to prove that the disputed statement is true. If particular circumstances make

it very difficult for the person to do so - e.g. the very striking ‘disparity of arms’ in Steel

and Morris, or a particular procedural unfairness– the presumption may then become

incompatible with Article 10.

 In a case where a journalist cannot demonstrate the truth of the disputed statement for

reasons such as the need to protect sources from serious threat, the presumption of falsity

could infringe Article 10 unless it is accompanied by other procedural safeguards.

 Where the presumption of falsity applies, but a journalist can invoke a defence of fair

and reasonable publication in the public interest, such as the Reynolds privilege applied

in Wall Street Journal Sprl v Jameel,74F

the presumption of falsity is unlikely to be

incompatible with Article 10.

2.2.4 Comparative Perspectives

In most common law jurisdictions (England and Wales, Scotland, Northern Ireland, Australia,

New Zealand, Canada, South Africa), the presumption of falsity remains part of defamation

law.75F

[2006] UKHL 44, [2007] 1 AC 359.

Gatley on Libel and Slander, Sweet and Maxwell, 12

edn. (2017) at para 11.4 and footnote 23.

In England and Wales, the presumption of falsity continues to apply, and no change was made

to it by the Defamation Act 2013. This issue was considered in 1975 by the Faulks Committee,

which concluded that:

“… the principle of requiring a publisher of defamatory words to prove their truth

(subject of course to other defences like qualified privilege) is a sound principle, it tends

to inculcate a spirit of caution in publishers of potentially actionable statements which

we regard as salutary, and which might well be severely diminished if the burden of proof

were shifted. Moreover such a shift would, we think severely upset the balance of the law

of defamation against defamed persons.”76F

The same view was taken by the Neill Committee on Practice and Procedure, in 199177F

There have been a number of high profile cases in England and Wales where the presumption

of falsity has resulted in plaintiffs successfully suing newspapers in respect of statements that

subsequently proved to be true. For example, the case of the former Welsh Police

Superintendent Gordon Anglesea who was awarded £400,000 for defamation in 1994 after

having been accused of being a paedophile in the early 1990s by a number of British

publications. However, in 2013, he was convicted of the abuse of several young boys.78F

Similarly, there have been several well-known cases where sporting personalities or celebrities

successfully sued for defamation, in response to media articles suggesting that they were using

banned drugs to boost their performance, or were attending rehabilitation for drug use, where

the truth of the allegation could not be shown – but the person was subsequently established to

be in the situation suggested, at a date some years afterwards.

In Ontario, the Law Commission of Ontario’s report on Defamation Law in the Internet Age

notes that the falsity of a defamatory statement is presumed unless the defendant establishes

the defence of justification. The Canadian courts have held that the presumption of falsity is

consistent with the values in the Canadian Charter of Rights and Freedoms (“Charter values”).

The Report provides a number of arguments in support of the presumption. The publication of

a statement is viewed as the “accusation” to be proved by the defendant which “protects victims

of reputational harm from having to prove their worth”; it is difficult to “prove a negative”,

and requiring the plaintiff, in the case of serious reputational harm, to prove the falsity of an

allegation may be impossible in practice79F

; it is also believed that the presumption inculcates

“a spirit of caution” in publishers against publishing statements that they could not prove to be

true”.

The Commission therefore recommends retaining the presumption of falsity, which it argues

is “crucial to achieving access to justice” for plaintiffs. It considers that investigative

journalism is more appropriately protected by a defence of reasonable publication in the public

interest.80F

Report of the Committee on Defamation (chaired by Mr Justice Faulks), March 1975, at para. 141.

Supreme Court Procedure Neill Committee Report on Practice and Procedure in Defamation (1991)

(London, Lord Chancellor's Department)’

From Dr Andrew Scott’s paper to the Symposium on Reform of Defamation Law, 19 November 2019.

The Commission noted that in the absence of the presumption, the plaintiff in Magno v Balita (2018 ONSC

3230) would have been required to prove that he is not “a habitual liar”, as the contested statement had claimed.

Law Commission of Ontario, Final Report: Defamation Law in the Internet Age, March 2020, pp. 26-27.

Gatley notes that the presumption of falsity has also been retained in Australia and South

Africa, as well as in Ireland81F

Conversely, the presumption of falsity no longer applies in certain cases in the United States,

based on the particular protection for free speech contained in the First Amendment to the US

Constitution. A public figure who claims to have been defamed, or any person who claims to

have been defamed by the media in a statement about a matter of public concern, must prove

that the statement is substantially false82F

. In other circumstances, however, it appears the

presumption of falsity continues to apply83F

2.2.5 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 abolish the presumption of falsity;

 reverse the burden of proof and make falsity an element of the tort to be proved by the

plaintiff where the standards of responsible journalism outlined in section 26 of the Act

have been followed;

 retain the presumption of falsity, but ensure that it is balanced by measures to protect

investigative journalism, such as an effective defence of reasonable publication in the

public interest and/or an anti- anti-SLAPP mechanism;

 do nothing.

Option 1: Abolish the presumption of falsity

This would mean that the plaintiff would have to prove that the statement complained of is

untrue.

Arguments in favour

 The law of defamation should protect individuals from defamatory statements which are

untrue, not from those that are true. It is in principle unsatisfactory that the plaintiff

should be relieved of the burden of proving all the essential ingredients of the wrong

which has been alleged.84F

 There is no public interest in penalising the authors of true statements, particularly when

they relate to matters of public concern.85F

 It may be impossible to prove the truth even of a true statement, for example the statement

may be based on information provided by a confidential source who is not willing to

testify in court. “In such circumstances the publisher’s ability to publish the (true)

statement is severely compromised by the threat of an indefensible defamation action”.86F

Gatley, 12

edn. & 2

Supplement, para 11.4.

Philadelphia Newspapers v Hepps [1986] 475 US 767.

Maher J., 2

edn., para 5.06; Gatley, 12

edn., para 11.4.

Law Reform Commission, Report on the Civil Law of Defamation, December 1991.

ibid.

Cox N. and McCullough E., Defamation: Law and Practice, (2014), at para.1-11.

 While the defence of truth is available to defendants, it appears that it is rarely pleaded

on its own.87F

Moreover, there is a significant risk for the defendant in putting forward a

defence of truth. If the defence fails, the court or jury will have grounds to award

aggravated damages.88F

 The presumption may have adverse consequences on freedom of expression.

Arguments against

 Requiring a plaintiff to prove that a statement is untrue may have constitutional

implications which would require careful consideration.

 A person who asserts, from his sources of information, that a particular state of affairs

exists should bear the burden of proving this assertion.89F

 Requiring a plaintiff to prove his/her innocence is inconsistent with the spirit of the

constitutional requirement that the State vindicate the good name of every citizen in the

case of injustice done.90F

 It is not always easy to prove a negative.91F

It “is invidious that any individual should have

to live with a publication about him/her that is, in fact, untrue, but whose falsity s/he

cannot prove”.92F

 The balance of justice is better served by not requiring the plaintiff to prove that a

statement is false.

 Defamation is a tort of commission so that a person who publishes a statement should be

able to stand over it.

 The presumption is only relevant where the defence of truth is pleaded. There are other

defences available to defendants, particularly the media.

 The current law is in line with the approach adopted in many other common law

jurisdictions, in particular England and Wales, Scotland, Northern Ireland, Australia,

New Zealand and Ontario.

According to Professor Marie McGonagle, Media Law p. 108 (Dublin; Round Hall Press, 2003) truth was

pleaded as the only defence in only 5% of cases.

Maher J., The Law of Defamation, 2

edn, (2018) at p. 137.

Law Reform Commission, Report on the Civil Law of Defamation, December 1991 at p. 57.

ibid.

Cox N. and McCullough E., Defamation: Law and Practice, (2014), at para. 5-12.

Option 2: Reverse the burden of proof and make falsity an element of the tort to be proved

by the plaintiff where the standards of responsible journalism outlined in section 26 of the

Act have been followed

Arguments in favour

 It would facilitate the publication of ‘true’ statements where the publisher may have

concerns that he/she will not be able to prove the truth of the statement while protecting

the right to a good name.

Arguments against

 It may not adequately protect a person’s right under the Constitution to protection of their

good name.

 The presumption of falsity is only an issue where the defendant seeks to avail of the

defence of truth;93F

there are other defences available to the media.

Option 3: Retain the presumption of falsity, but ensure that it is balanced by measures to

protect investigative journalism and other public-interest debate, such as an effective defence

of reasonable publication in the public interest (see chapter 3) and/or an anti-SLAPP

mechanism (see further in this chapter)

Arguments in favour

 Arguments against option 1 would apply.

 Such an approach would seem more compatible both with the Constitution, and with the

case-law of the European Court of Human Rights under Article 10 of the European

Convention on Human Rights.

 This would also accord with the approach proposed by the Ontario Law Reform

Commission.

Arguments against

 Arguments in favour of option 1 would apply.

Option 4: Do nothing

Arguments in favour

 Arguments against option 1 would apply.

Arguments against

 Arguments in favour of option 1 would apply.

Report of the Legal Advisory Group on Defamation, March 2003,

http://justice.ie/en/JELR/rptlegaladgpdefamation.pdf/Files/rptlegaladgpdefamation.pdf

Recommendations

The following option is recommended:

 Option 3: Retain the presumption of falsity, but ensure that it is balanced by measures

to protect investigative journalism and other public-interest debate, such as an effective

defence of reasonable publication in the public interest (see chapter 3) and/or an anti-

SLAPP mechanism.

The following options are not recommended:

 Option 1: Abolish the presumption of falsity;

 Option 2: Reverse the burden of proof and make falsity an element of the tort to be proved

by the plaintiff where the standards of responsible journalism outlined in section 26 of

the Act have been followed; and

 Option 4: Do nothing.

2.3 Proposed ‘Serious Harm’ Test

2.3.1 The current legal position

As mentioned at the beginning of this chapter, a defamatory statement is defined by the

Defamation Act 2009 as one which:

“ tends to injure a person’s reputation in the eyes of reasonable members of society”94F

In Irish law, a person is not obliged to prove that the injury to his/her reputation has reached

any specified minimum level of seriousness, before he/she can proceed with an action for

defamation.

In practice, the plaintiff will normally wish to prove the full extent and gravity of any injury to

his/her reputation, in the course of the defamation proceedings: not least because the nature,

extent and seriousness of the damage caused is relevant to the level of redress that will be

awarded. Thus section 31(4) of the Defamation Act specifies that the court in a defamation

action shall, in making an award of general damages, have regard to-

“(a) the nature and gravity of any allegation in the defamatory statement concerned,

(b) the means of publication of the statement, including the enduring nature of those

means,

….. and

(e) the importance to the plaintiff of his reputation in the eyes of particular or all

recipients of the defamatory statement,” .

It is worth also noting that in defamation, as in other types of cases, the High Court or Circuit

Court judge has an express power to strike out (terminate) a case where the pleadings (written

statements by the plaintiff and defendant about the case) do not disclose a reasonable cause of

action, or a case which appears from the pleadings to be frivolous (have no real content) or

Section 2 Defamation Act 2009.

vexatious (seeking to exert leverage by causing annoyance).95F

The judge may do so either on

his/her own initiative, or on application of the defendant.

However, there is no provision in Irish defamation law equivalent to the statutory “serious harm

threshold”, introduced in England and Wales by section 1(1) of the Defamation Act 2013,

which is discussed below.

Nor have the Irish courts been disposed to follow an earlier judgment of the English Court of

Appeal, Jameel v Dow Jones96F

, which held that defamation cases could be struck out where a

court considered them to be insubstantial or disproportionate. The Jameel case arose from an

article published on a subscriber-only website, which claimed to identify a number of persons

who provided financial support to global terrorism, based on material obtained on the computer

of an organisation linked to al-Qaeda. The reader had to click on a link to obtain access to the

list. Mr Jameel, a Saudi-based businessman, issued defamation proceedings in England,

claiming that the article defamed his reputation in that jurisdiction.

However, the website brought evidence that only five people in England had clicked on the

link: the plaintiff’s solicitor, two associates of the plaintiff whose view was favourable to him,

and two other persons who stated that they did not know the plaintiff and did not remember

reading his name in the list. It argued that the article therefore had no significant impact on the

Mr Jameel’s reputation in England, and the court should exercise its power to dismiss the

defamation proceedings as a waste of court time. The Court agreed, concluding that any

damage to the plaintiff was “minimal” and did not justify the costs and the court time that

would be expended.

The Irish Court of Appeal was asked to apply the Jameel approach, in Gilchrist and Rogers v.

Sunday Newspapers97F

.This case referred mainly to publication of a newspaper article about

alleged misadministration of the State’s witness protection programme. The article was

claimed to defame the plaintiffs, a retired Detective Inspector and a psychotherapist who had

previously worked with the programme and were named by the article.

But the plaintiffs also complained that the journalist had published similar and related

defamatory statements about them to Mr O’Brien, a retired Chief Superintendent, two days

before the article was published. The newspaper asked the court to strike out the claims about

the statements made to Mr O’Brien, arguing that this was publication to just one person, who

should be considered as sympathetic to the plaintiffs (see para. 34 of judgment).

Finlay-Geoghegan J, giving the judgment of the Court of Appeal on this particular point,

concluded that the English courts, in Jameel and several subsequent judgments, had identified

and exercised “an inherent jurisdiction to strike out as an abuse of process a libel (or a

defamation) claim which may yield a plaintiff some benefit, but where the probable damage to

the defendants in terms of costs and the impact on court resources will be disproportionate to

the probable benefit for the plaintiff in succeeding.” (para 18).

Under the Rules of the Superior Courts, O19 R 28 RSC; applied also to the Circuit Court, by O67 R 16

Circuit Court Rules. See Review of the Administration of Civil Justice, (‘the Kelly Report’), 2020, para 3.3.1.

[2005] EWCA Civ 75, [2005] QB 946.See discussion below.

Gilchrist v Sunday Newspapers & others, [2017] IECA 190, Finlay-Geoghegan J, 21 June 2017. The judgment

was interpreted by one submission as holding that “there is no triviality threshold in Irish defamation law.”

(McCann Fitzgerald, July 2020).

There were, however, differences between English and Irish law on this issue. In Irish law, the

court’s “jurisdiction to strike out proceedings or a claim without a hearing on the merits is one

which limits the constitutional right of access to the Courts. Also, it is of course a jurisdiction

which must be exercised sparingly and only in clear cases.” (para 32).

Strike out might arise where the proceedings were frivolous, vexatious, were repeat litigation

on points already decided by the court, or were bound to fail. However, the plaintiffs’ claim

regarding the publication to Mr O’Brien did not fall into any of those categories, as section

6(2) of the 2009 Act expressly provides that publication of a defamatory statement about a

person to one other person constitutes defamation.

Otherwise, the Irish authorities required the defendant to establish that there would be no

benefit to the plaintiff in pursuing their claim, before the courts would strike out a claim. That

did not extend (as in Jameel) to striking out proceedings where there would be a benefit to the

plaintiff in continuing, but the court assessed that benefit as disproportionate:

“What does not appear permissible [in Ireland], on an application to strike out

proceedings as an abuse of process, is to conduct … ‘in essence a cost-benefit

calculation’ between the potential probable benefit to the plaintiff if successful, and

probable costs and use of court time if the proceedings continue, and determine whether

it is proportionate to permit the proceedings to continue.” (para 31).

As the newspaper had not established, in this case, that there would be no benefit to the

plaintiffs if they succeeded in their action, the court held that there was no abuse of process

and refused the application to strike out the claim.

Maher suggests that “the effect of the Jameel decision98F

and of section 1(1) of the Defamation

Act 2013 in England has been a divergence of English and Irish law. In Irish law, it remains

the case that publication to one person may suffice for an action to proceed. In English law,

cases where publication is very limited, or the meaning of the statement is not obviously

damaging, risk falling at the ‘serious harm’ hurdle.”99F

100

2.3.2 Main issues raised during the review

Submissions to the review argued that the ease of bringing a defamation action against a

publisher, in contrast to the cost, time and resources required to defend such a claim, creates

an imbalance that incentivises financial settlements, and acts as a deterrent to possible

resolutions without a drawn-out legal process.100F

101

It was also argued that people or organisations

with large financial resources can use the law to deaden or stymie reporting on their activities,

through responding to virtually any coverage with solicitors’ letters, threats of legal action, or

both.101F

102

Jameel (Yousef) v Dow Jones [2005] EWCA Civ 75, [2005] QB 946. See discussion below.

100

Maher, J. The Law of Defamation, 2

edn., Dublin, at para 3.63.

101

Journal Media.

102

Business Journalists’ Association.

A large number of submissions to the review recommend the introduction of a ‘serious harm’

test that would require proof that the statement complained of has caused, or is likely to cause,

serious harm to the plaintiff’s reputation before an action for defamation goes to trial.102F

103

This suggestion is based on the test introduced in section 1(1) of the England and Wales

Defamation Act 2013, which provides that “[a] statement is not defamatory unless its

publication has caused or is likely to cause serious harm to the reputation of the claimant”.

(The legal effect of this provision was the subject of differing judicial interpretations in

England, but it appears to have been clarified by a UK Supreme Court judgment in 2019 – see

discussion below.)

The arguments put forward in favour of this proposal include that it would:

 discourage trivial and vexatious cases or cases with little merit intended to intimidate a

publisher;

 reduce legal costs for defendants;

 help to ensure effective and appropriate use of court resources;

 assist in ensuring an appropriate balance between Article 8 ECHR (right to protection of

one’s reputation) and Article 10 ECHR (right to freedom of expression); and

 discourage ‘forum shopping’ (this argument is considered separately in Chapter 4).

It was also argued that an appropriate threshold test can be expected to discourage those who

might seek to use defamation law to suppress legitimate criticism, or to stifle the expression of

facts important to the public interest.

Concerns were raised in one submission at what was described as a substantial increase in

trivial defamation actions being taken in the Circuit Court against small businesses in the

hospitality and retail sectors.103F

104

The concerns centre around the ability of shops, restaurants

and petrol stations to question or stop customers who are suspected of shoplifting, driving (or

attempting to drive) from a garage forecourt without paying, leaving a restaurant without

paying, paying for goods with a counterfeit note, or refusing admission to premises, without

risking a defamation action being taken against them. It was argued that the threat of

defamation actions means that SMEs are, for example, faced with a choice of accepting the

loss resulting from a suspected theft or risking a substantial award of damages and legal costs.

It was therefore suggest that the Act should be amended to provide that any defamation alleged

must be material and demonstrable and must cause serious harm to the plaintiff.

However, a submission to the review, made after the Symposium, took the view that in Ireland,

a “serious harm” test would likely be found to offend against the constitutional right of access

to the courts. It suggested however, that it should be possible to legislate for a summary disposal

mechanism for claims in which publication is limited, whereby a financial limit to jurisdiction

would be imposed, such that access to justice would be maintained but there would be

reasonable limits to the costs that may be incurred by defendants defending such claims and to

the damages payable to the plaintiff.104F

105

(See chapter 4)

103

Business Journalists’ Association, Google, Independent News and Media, Irish Times, Journal Media, Local

Ireland, MGN Ltd, National Union of Journalists, Newsbrands Ireland, Dr. Eoin O’Dell, Ronan Daly Jermyn

Solicitors, Technology Ireland, and Yahoo.

104

ISME.

105

McCann Fitzgerald.

2.3.3 Comparative perspectives

In England and Wales, section 1 of the Defamation Act 2013 introduced a serious harm test

as follows:

(1) A statement is not defamatory unless its publication has caused or is likely to cause

serious harm to the reputation of the claimant.105F

106

The rationale for the introduction of the serious harm test was to reduce the number of

defamation actions taken in court, by putting in place a threshold to demonstrate actual

reputational harm before a case can proceed. The Explanatory Notes on the Act state that

section 1 builds on cases such as Jameel v Dow Jones

106F

107

and Thornton v Telegraph Media

Group Limited107F

108

, which held that common law already required a defamation case to raise a

real and substantial wrong, and said that it “raises the bar for bringing a claim so that only

cases involving serious harm to the claimant’s reputation can be brought”.108F

109

The meaning of the serious harm test has now been decided by the UK Supreme Court in

Lachaux v Independent Print Ltd and another.109F

110

The High Court and Court of Appeal had

both interpreted section 1 as largely re-stating the common law standard of seriousness as

explained in Jameel and Thornton. However, the Supreme Court underlined that the

Defamation Act 2013 had set a significantly higher threshold of seriousness for defamation

cases than the previous common law test. Section 1(1) requires that the “serious harm” to the

plaintiff’s reputation must be determined by reference to the actual facts about the impact of

the defamatory statement, and not just by the meaning of the words. The words complained of

must not only be inherently injurious, but must also be shown to produce serious harm in fact.

The Court held however, that serious harm can be inferred in certain circumstances. In this

case, it was inferred from evidence in relation to the scale of the publication; the fact that the

statement had been read by people in England and Wales who knew the plaintiff; others who

knew the plaintiff or would get to know him in the future were likely to read the publication;

and the gravity of the statements. The Supreme Court judgment is generally acknowledged as

raising the bar on proving serious harm in England and Wales, and making it more difficult to

take defamation actions under the 2013 Act.110F

111

There has been speculation that it will also

106

In the case of a body that trades for profit, the statement must have caused, or be likely to cause, serious

financial loss (Defamation Act 2013, s. 1(2)).

107

[2005] EWCA Civ 75, [2005] QB 946, the Court of Appeal held that a statement published online in Brussels

which only reached 5 people in England and Wales did not amount to a real and substantial tort, departing from

the principle of the tort of defamation being actionable per se. The court concluded that the extent of the damages

the plaintiff could expect to receive by way of vindication would have been ‘out of all proportion’ to the cost of

the litigation, and thus struck the case out as an abuse of process.

108

In Thornton v. Telegraph Media Group Limited [2010] EWHC 1414 (QB), [2011] 1 WLR 1985, the High

Court concluded that the common law imposed a threshold regarding causes of action in defamation. This,

according to the court, had the effect of barring trivial claims.

109

Defamation Act 2013, Explanatory Notes, https://www.legislation.gov.uk/ukpga/2013/26/notes/division/5/1

110

Lachaux v. Independent Print Ltd and another [2019] UKSC 27, [2019] 3 WLR 18. The case arose from

articles published in two UK newspapers about a family law dispute, which were held to contain a number of

defamatory allegations about the husband’s conduct.

111

See for example Eversheds Sutherland, Solicitors, ‘Lachaux v. Independent Print: It just got harder to sue

for libel’,14 June 2019 https://www.eversheds-

sutherland.com/global/en/what/articles/index.page?ArticleID=en/Litigation_Supp.ort/Lachaux_v_Independent_

Print-It_just_got_harder_to_sue_for_libel; McCann Fitzgerald, Solicitors, ‘UK Supreme Court Raises the Bar in

increase costs and delays for both plaintiff and defendant in cases which do proceed, possibly

requiring extra preliminary hearings to determine whether the plaintiff has put forward

sufficient evidence of “serious harm” in practice to be allowed to proceed.

In his presentation to the Symposium on Reform of Defamation Law, Dr Andrew Scott

expressed the view that the likely outcome of this judgment in England and Wales is “an

increase in arguments, correspondence and costs of litigation”111F

112

though he noted the court’s

statement that inferences may be drawn in light of the circumstances of the case, which might

reduce this risk.

In Scotland, the Defamation and Malicious Publications (Scotland) Act 2021 provides for a

serious harm test similar to section 1 of the Defamation Act 2013.112F

113

In Northern Ireland, the Report on Defamation Law in Northern Ireland,113F

114

recommended

the introduction of a serious harm test, but noted that the arguments for the introduction of such

a provision are “less compelling” than arguments for other reforms.

114F

115

Before 2005, each Australian jurisdiction had a different regime for regulating defamation

actions. In November 2004, state and territory Attorneys-General endorsed the Model

Defamation Provisions 2005. The Model Provisions retain (with some modifications) the

common law approach to determining civil liability for defamation. Each jurisdiction

subsequently enacted legislation, collectively referred to as the National Uniform Defamation

Law, to give effect to the Model Defamation Provisions. Each state and territory therefore has

substantially uniform defamation law.115F

116

Following a review of the 2005 Model Defamation

Provisions, the Model Defamation Amendment Provisions 2020 were approved by the Council

of Attorneys-General on 27 July 2020 and must be incorporated into the laws of each state and

territory.

The 2005 Model Defamation Provisions provide for a defence to the publication of defamatory

matter if the defendant proves that the circumstances of the publication were such that the

plaintiff was unlikely to sustain harm (defence of triviality). This defence is considered

challenging to mount successfully and has generally only been successful in circumstances

where the publication of the material has been limited, such as where an oral statement is made

in front of a small number of people.116F

117

The Model Defamation Amendment Provisions 2020,

Proving Serious Harm for Defamation Actions’, 26 June 2019,

https://www.mccannfitzgerald.com/knowledge/disputes/uk-supreme-court-raises-the-bar-in-proving-serious-

harm-for-defamation-

actions#:~:text=UK%20Supreme%20Court%20Raises%20the%20Bar%20in%20Proving%20Serious%20Harm

%20for%20Defamation%20Actions,-

Created%20with%20Sketch&text=The%20UK%20Supreme%20Court%20has,harm%20to%20the%20plaintiff'

s%20reputation

112

Prof. Andrew Scott, (London School of Economics), ‘Defamation law reforms on these themes in common

law jurisdictions’ at http://www.justice.ie/en/JELR/Pages/Symposium_Reform_of_Defamation_Law#_blank .

113

The Act further limits the circumstances in which proceedings for defamation may be brought where the

plaintiff is a legal person whose primary purpose is to trade for profit.

114

Report on Defamation Law in Northern Ireland, Dr Andrew Scott, June 2016.

115

ibid (Recommendations).

116

Council of Attorneys-General, Review of Model Defamation Provisions, Discussion Paper, February 2019,

https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/discussion-

paper-stage-2.pdf

117

Model Defamation Amendment Provisions (Consultation Draft), Background Paper, p. 27.

now provide for the introduction of a serious harm test which will require a plaintiff to prove

that the publication “has caused, or is likely to cause, serious harm to the reputation of the

person”; in the case of certain legal persons, harm to reputation is not serious harm unless it

has caused, or is likely to cause, serious financial loss. The rationale given for the introduction

of the serious harm test is that it would prevent vexatious or oppressive litigation tactics by

claimants, where no significant harm is suffered.

In New Zealand, the Defamation Act 1992 (as at 1 March 2017) provides that defamation is

actionable without proof of special damage.

Conversely, in Canada, the Law Commission of Ontario in its report on Defamation Law in

the Internet Age117F

118

recommended that a serious harm test should not be introduced. The

justifications given for this recommendation are that (i) the presumption of damage is a core

element of the tort of defamation; (ii) Ontario has already adopted a different approach to trivial

claims i.e. defendants to defamation actions involving expressions on matters of public interest

may apply at an early stage of the proceedings to have the action dismissed and in order to

prevent dismissal, the plaintiff must establish harm that is “sufficiently serious” to meet the

public interest hurdle (under the Ontario anti-SLAPP legislation);118F

119

and (iii) a serious harm

threshold is considered to be a barrier to access to justice (it places a relatively stringent

evidentiary burden on plaintiffs to prove serious harm at an early stage of the proceedings; it

may have the effect of front-loading litigation proceedings; and the additional costs of a

preliminary hearing may create significant economic and practical barriers to access to justice).

2.3.4 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 introduce a serious harm test;

 introduce a serious harm test in cases of limited publication in a non-permanent form

during the provision of goods and services.

Option 1: Introduce a serious harm test

Any proposal to introduce a serious harm test would require careful consideration, in light of

the constitutional right of access to the courts and the constitutional protection of the right to a

good name.

Arguments in favour

A serious harm test would:

 Raise the bar in defamation cases, reduce trivial applications and potentially reduce the

numbers of cases taken.

 Reduce the cost and time it takes to defend cases that don’t meet the serious harm

threshold.

118

Law Commission of Ontario, Defamation Law in the Internet Age, Final Report, March 2020

119

Anti-SLAPP motion under section 137.1 of the Courts of Justice Act.

 Enable better case management and better use of court resources, because cases that do

not meet the “serious harm” requirement would be concluded at an earlier stage.

Arguments against

 The introduction of a serious harm test could give rise to constitutional issues in relation

to access to the courts and the obligation on the State under Article 40.3.2° to “protect as

best it may from unjust attack and, in the case of injustice done, vindicate the … good

name, … of every citizen”.119F

120

 Requiring serious harm to a plaintiff’s reputation to be demonstrated before a case can

proceed to hearing may give rise to mini-trials at a preliminary stage, thus increasing the

complexity and costs of proceedings.

 Given the diffuse and often intangible nature of harm to reputation, it could be difficult

in practice for plaintiffs to provide concrete material evidence of serious harm.

 The serious harm test would remove a core question relating to the alleged defamatory

statement from the consideration of the jury which has long been embedded in the Irish

legal system in defamation cases.

 A serious harm test may not have the intended impact of significantly reducing the

volume of claims being taken.

Option 2: Introduce a serious harm test, limited to cases where the alleged defamation

consists of limited publication in a non-permanent form during the provision of goods and

services

The purpose of this provision is to address the concerns raised by SMEs operating in the

hospitality and retail sectors set out above.

The Circuit Court has decided a number of “retail defamation” cases recently. In those

decisions, the Circuit Court made it clear that it is not intrinsically defamatory for a retailer to

ask a customer at the checkout to confirm that he/she has paid for an item, or for a restaurant

to ask a customer to pay for a meal that he/she has consumed.120F

121

Clearly, there may also be cases where problems arise from poor communication, lack of

appropriate staff training, or real or perceived unfairness (particularly regarding groups at risk

of discrimination). Cases of discrimination in the provision of goods or services, on any of the

grounds protected under the Equal Status Acts, can be taken to the Workplace Relations

120

In the report on capping of damages in personal injuries cases, the LRC considered that a threshold rule in New

South Wales legislation (i.e. general damages can be awarded only where the severity of the non-economic loss

is at least 15% of the most extreme case) could not survive a constitutional challenge as it would fail to meet any

test of what would be “fair and reasonable”. Similar concerns may arise in the case of a serious harm test.

121

Fowler v Marks and Spencer (Irl) Ltd (Circuit Court No. 2018/02998) and McCarthy and Walsh v

Harbourmaster Bar and Restaurant Trading Limited & ors (Circuit Court No. 2018/06901) respectively. See also

Diop v Transdev Dublin Light Rail and STT Risk Management [2019] IEHC 849 (High Court: a request to produce

a valid Luas ticket was held not to be defamatory but the plaintiff was defamed arising from other statements) and

Sunner v Dealz Retailing Ireland Ltd and ors (Circuit Court No. 2017/04762) (not defamatory to ask a customer

if she had paid for a toy rattle that she had given to her child; the toy was subsequently found on another shelf in

the shop).

Commission where both plaintiff and defendant benefit from low-cost, accessible procedures,

including free mediation services, and an emphasis on practical redress which will prevent

recurrence of the problem, such as adoption of codes of practice developed in consultation with

relevant groups. Such a forum appears, in general, much better suited than litigation to resolve

grievances effectively, and address any systemic issues.

The “retail defamation” cases instanced by ISME typically revolve around spoken

communication between a staff member of a provider of goods and services, and a customer

or other member of the public, and involve only a short spoken exchange, in the presence of a

relatively small number of people, during a limited time period. Typically the person has been

asked to confirm whether they have paid for an item before leaving the premises, has been told

that cash they have proffered for payment may be counterfeit, or there is a refusal of admission

to the premises. Any of these may arise entirely innocently, or from an honest oversight, by the

customer, and good staff training and codes of practice on the retailers’ side should assist in

minimising the number of complaints.

At the same time, consideration could be given to introducing proportionate and specific

measures for the “retail defamation” context, which would be targeted to reducing claims that

constitute an abuse of process. Such cases are already normally taken in the Circuit Court and

are therefore identified as falling in a more modest bracket as regards any damages.

Arguments in favour

 Defamation resulting from a short verbal exchange, published to a relatively small

number of people, should generally have significantly less defamatory effect than

publication of the same comments in written, broadcast, online or digital form.

 This should facilitate the achievement of a fair balancing of the constitutional right to a

good name and to an individual’s property rights.

 Imposition of a serious harm test, for cases which cannot be resolved by agreement,

should act as a disincentive to the taking of trivial cases – saving time and costs for

retailers, courts, and plaintiffs.

Arguments against

 There may be Constitutional issues, as introduction of such a serious harm test could

restrict the right of access to the courts and a person’s ability to defend his/her good

name; such measures will need to be carefully thought out and proportionate.

Recommendations

Provided that there are no constitutional constraints, the following option is recommended:

 Option 2: Consider introducing a serious harm test, limited to cases where the alleged

defamation consists of limited publication in a non-permanent form during the provision

of goods and services).

The following option is not recommended:

 Option 1: Introduce a serious harm test generally.

2.4 Defamation of a Class of Persons

2.4.1 Current Legal Position

Section 10 of the Act provides that where a person publishes a defamatory statement

concerning a class of persons, a member of that class shall have a cause of action against that

person if by reason of the number of persons who are members of that class, or by virtue of the

circumstances in which the statement is published, the statement could reasonably be

understood to refer, in particular, to the member concerned.

2.4.2 Main issues raised in course of review

One submission121F

122

to the review suggested that section 10 needs clarification and a limit set on

the “number of persons”. It also suggested that awards offered to the members of a class should

be divided between them.

Another submission122F

123

noted that section 10 means that a defamatory statement regarding a

group must contain some element that is targeted at an individual member of that group and

that the number of individuals in the class must be so confined that they are identifiable. It

concludes that this would appear to exclude members of a social class or group from the

protection of the Act e.g. statements that are racist in nature against a large group may injure

the reputation of the group in general within society, but they would have no effective remedy.

It goes on to set out details of a number of international instruments under which the State is

under an obligation to combat hate speech, racism, xenophobia and intolerance.123F

124

2.4.3 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 limit the number of persons that can be in a class or group in order for an individual

member to be able to take a defamation action;

 allow a class or group of persons to take an action.

Option 1: Limit the number of persons that can be in a class or group in order for an

individual member to be able to take a defamation action

Arguments in favour

 There are no obvious arguments in favour of this proposal.

122

David Reynolds.

123

FLAC.

124

International Convention on the Elimination of All Forms of Racial Discrimination, Council Framework

Decision 2008/913/JHA of 28 November 2008; and European Commission against Racism and Intolerance

(ECRI) General Policy Recommendation No. 15 on Combating Hate Speech, adopted on 8 December 2015.

Arguments against

 Section 10 gives effect to a recommendation in the Law Reform Commission Report on

the Civil Law of Defamation.

 If it is possible to identify an individual from a defamatory statement in relation to a class

of persons, the individual should be able to take an action to vindicate his/her reputation.

 While the size of a group is an important factor, it is only one.

 Any size threshold would be arbitrary; the facts of the case rather than the size of the

group should determine whether or not a member of a class can take a case in respect of

a defamatory statement.

Option 2: Allow a class or group of persons to take an action

Arguments in favour

 This proposal would allow for the taking of a defamation action in respect of a statement

that injures the reputation of a group in general, even where it does not affect the

reputation of specific individuals.

Arguments against

 Section 10 is in line with the common law position (including the position in England

and Wales).

 The issue of hate speech, racism, etc. is more appropriately dealt with in hate speech

legislation.

 Any issue of discrimination is more appropriately dealt with under equality legislation.

 In so far as this proposal would allow for class actions, the issue of multi-party litigation

was considered by the Review Group on the ‘Review of the Administration of Civil

Justice’ which recommended as follows.

6.2.1

It would seem clear that there is an objective need to legislate for a comprehensive multi-

party action (“MPA”) procedure in Ireland, while acknowledging the importance of

public law redress mechanisms such as regulatory oversight and intervention in

resolving certain multiple claim categories.

6.2.2

The Review Group shares the preference of the Law Reform Commission for a model

along the lines of the Group Litigation Order (“GLO”) procedure in England and Wales

which would require claimants individually to institute proceedings in pursuit of their

claims and join an MPA register. While noting the perceived benefits of the US style class

action model, the Review Group does not consider it either realistic or legally safe to

adopt such a model in this jurisdiction given lack of familiarity with it here and possible

constitutional difficulties presented by the “opt out” approach in binding passive

claimants to proceedings they have not instituted.124F

125

Option 3: Do nothing

Arguments in favour

 The arguments against options 1 and 2 would apply.

Arguments against

 The arguments in favour of options 1 and 2 would apply.

Recommendations

It is recommended:

 that section 10 of the Defamation Act 2009 should not be amended; and

 that any question in relation to multi-party or class actions should be considered in the

context of implementation of the Report on the Review of the Administration of Civil

Justice.

2.5 Position of bodies corporate

2.5.1 Current Legal Position

Section 12 of the Defamation Act expressly provides that a body corporate (such as a company)

is entitled to sue (and to be sued) for defamation in the same way as a human person:

“The provisions of this Act apply to a body corporate as they apply to a natural person,

and a body corporate may bring a defamation action under this Act in respect of a

statement concerning it that it claims is defamatory, whether or not it has incurred or is

likely to incur financial loss as a result of publication of that statement.”

Before the 2009 Act, a company (as distinct from its members or board members) could not

sue in Irish law for defamation.

Section 12 also expressly provides that a body corporate may bring proceedings over a

defamatory statement, without having to show that it has incurred financial loss, or is likely to

do so, due to the publication of the statement.

Maher considers that the provision:

“reflects the finding in the House of Lords in Jameel v Wall St Journal125F

126

that a trading

company, which itself conducted no business but had a trading reputation within the

jurisdiction, was entitled to recover general damages for libel without pleading or

125

Review of the Administration of Civil Justice: Review Group Report (Chapter 8);

http://www.justice.ie/en/JELR/Review_of_the_Administration_of_Civil_Justice_-

_Review_Group_Report.pdf/Files/Review_of_the_Administration_of_Civil_Justice_-

_Review_Group_Report.pdf

126

Jameel v Wall St Journal [2006] UKHL 44, [2007] 1 AC 359.

proving special damage, if the publication had a tendency to damage it in its way of

business.”126F

127

2.5.2 Main issues raised in course of review

A number of submissions to the review argued that bodies corporate should be required to

prove special damages/serious financial loss before taking a defamation action.127F

128

One of these

submissions suggested that companies should not be entitled to take actions in defamation (or

at the very least they should be required to prove that the publication caused or was likely to

cause serious, direct financial loss).128F

129

Among the arguments put forward by the submissions

were:

 the application of the Act to bodies corporate in the same way as it applies to natural

persons seems to be at odds with relevant case-law of the European Court of Human

Rights; there is a need for “protection for freedom of expression and public interest

commentary on commercial matters, given that commercial reputations were generally

deemed to lack the moral dimension inherent in personal reputations”;129F

130

 allowing a body corporate to take a defamation case in the same way as an individual

makes little sense - how could a body corporate demonstrate that its reputation was

damaged, if it suffered no financial loss or was not likely to do so;130F

131

 the current provisions facilitate a business which simply objects to negative coverage to

claim that it has been defamed in order to restrict or silence that coverage;131F

132

 companies have no feelings to be offended and cannot suffer embarrassment or

distress;132F

133

 companies already have a wide range of legal means to protect their brands. In terms of

intellectual property, companies can, and do use the law of trademarks, passing off and

other protections against misleading comparative advertising. They can sue for malicious

falsehood, and directors and employees can sue for defamation in their own names;133F

134

 where a customer of a business experiences bad customer service, or has otherwise been

significantly let down by that business, the individual should be able to express his/her

genuine opinions without fear of his/her legitimate criticism being supressed by a

meritless claim or threat of a claim by the business.134F

135

127

Maher, The Law of Defamation, 2

edn., para 1.33.

128

Business Journalists’ Association, Law Society (anonymous solicitor(s)), Professor Tarlach McGonagle,

NewsBrands, H. O’Donnell.

129

NewsBrands.

130

T McGonagle.

131

Business Journalists Association.

132

Business Journalists Association, NewsBrands.

133

NewsBrands.

134

NewsBrands.

135

Google.

On the other hand, it was indicated that a business’s online presence and reputation can be an

important aspect of its commercial potential. A business whose reputation is impacted by the

deliberate publication of defamatory comments should be able to bring a defamation claim to

prevent further damage.135F

136

One submission suggested that whether a body corporate should be entitled to bring a

defamation action without proof of damage should be reconsidered.136 F

137

One submission agreed with the current law arguing that it would be an almost insurmountable

hurdle in many cases for a company to prove causation between a defamatory statement and a

subsequent loss of income, which could arguably be due to other factors, market driven and

economic, as well as to the defamatory statement.137F

138

2.5.3 Comparative perspectives

In England and Wales, the Defamation Act 2013138F

139

provides that a statement is not

defamatory unless its publication has caused or is likely to cause serious harm to the reputation

of the claimant. In the case of a body that trades for profit, the serious harm requirement means

that a statement must have caused or be likely to cause the body serious financial loss.

In Scotland, the Defamation and Malicious Publication (Scotland) Act 2021 includes a similar

provision. 139F

140

In Northern Ireland, the report on Reform of Defamation Law in Northern Ireland,140F

141

recommends the introduction of a similar requirement.

In Australia, the Model Defamation Amendment Provisions 2020, which were approved by

the Council of Attorneys-General on 27 July 2020 and must be incorporated into the laws of

each state and territory, provide for the introduction of a serious harm test which will require a

plaintiff to prove that the publication “has caused, or is likely to cause, serious harm to the

reputation of the person”. Section 9 provides that a corporation has no cause of action for

defamation unless it is an excluded corporation at the time of the publication; subsection (2) of

section 9 provides that:

“A corporation is an excluded corporation if:

(a) the objects for which it is formed do not include obtaining financial gain for its

members or corporators, or

(b) it has fewer than 10 employees and is not an associated entity of another

corporation,

136

Google.

137

Eoin O’Dell.

138

Law Society (anonymous solicitor(s)).

139

Section 1(2).

140

Section 1(3).

141

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, Dr Andrew

Scott, June 2016.

and the corporation is not a public body.”

Section 10A(2) provides that harm to the reputation of an excluded corporation is not serious

harm unless it has caused, or is likely to cause, the corporation serious financial loss. An

individual associated with a corporation can take defamation proceedings in relation to a

defamatory matter about him/her (even if the material also defames the corporation).141F

142

In New Zealand, the Defamation Act 1992 provides that proceedings for defamation shall fail

unless the body corporate alleges and proves that the publication of the matter that is the subject

of the proceedings has caused, or is likely to cause, pecuniary loss to the body corporate.

In Ontario, the report on Defamation Law in the Internet Age142F

143

points out that in Canada, at

common law, a plaintiff who establishes defamation is presumed to have suffered reputational

harm; the plaintiff is not required to prove damage, although the defendant may offer evidence

to rebut the presumption of damage. General damages are awarded to vindicate the plaintiff’s

reputation. It notes that in Ontario, defamation law generally treats corporate plaintiffs in the

same way as individuals and recommends that the current Ontario law should not be changed.

It explains the rationale for this recommendation as follows:

“This recommendation is primarily driven by access to justice considerations. For many

small business owners, the reputation of their business is inextricably intertwined with

their own reputation. Removing or restricting their right to sue in defamation may unduly

hamper their ability to seek a remedy for reputational harm”.143F

144

It also notes that the issue of a corporation’s standing to sue in defamation law has become

more important in the era of online reviews.144F

145

2.5.4 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 provide that a body corporate that operates for profit can only recover damages for

defamation where it proves that the statement has caused or is likely to cause financial

loss;

 provide that a body corporate may not sue for defamation unless it first shows that the

statement has caused or is likely to cause serious harm; in the case of a body that trades

for profit, this means serious financial loss;

 do nothing.

142

Section 9(5).

143

Defamation Law in the Internet Age, Final Report, Law Commission of Ontario, March 2020.

144

ibid at p. 66.

145

ibid at p. 68.

Option 1: Provide that a body corporate that operates for profit can only recover damages

for defamation where it proves that the statement has caused or is likely to cause financial

loss

Arguments in favour

 A body corporate cannot suffer hurt, distress or injury to feelings.

 While a body corporate has a right to defend itself against defamatory allegations, it could

be argued that it is difficult to see how a body corporate could show that its reputation

was damaged if it suffered no financial loss or was unlikely to do so.

 The ECtHR has repeatedly recognised the public interest in commercial practices and the

concomitant interest in being able to scrutinise such actions, inter alia through (critical)

media reporting.145F

146

 It would be very difficult for a body corporate to show that it suffered financial loss as a

result of a defamatory statement (e.g. a financial loss as a result of individuals or bodies

deciding not to trade or associate themselves with it). However, allowing a body

corporate to take an action for defamation where it can show that a defamatory statement

is likely to cause financial loss should help to overcome this difficulty.

 This approach is adopted in a number of other common law countries e.g. England and

Wales and Scotland.

Arguments against

 Corporate reputation is a very important asset of a business and should be protected.

 In the case of small corporate bodies, the reputation of the individual owners is

inextricably linked to the reputation of the business.

 The Act provides for a wide range of defences in sections 16 to 27 to protect freedom of

expression while guarding the reputations of individuals and bodies corporate. It can be

argued that the Act strikes the correct balance between the right to freedom of expression

and the right to reputation and good name.

 The present legal position sought to recognise the full importance – commercial and non-

commercial – of a body corporate’s reputation, and to protect that reputation against

defamatory statements, even in situations where it might be difficult to prove or measure

resulting financial loss.146F

147

 It might be very difficult to prove a causal link between a defamatory statement and loss

of earnings/value of a business or the extent of the damage caused to the reputation of a

business. This might be particularly the case where a body corporate had only recently

started up, or had just entered a new market.

146

Tarlach McGonagle.

147

Defamation (Amendment) Bill 2014: Seanad, Second Stage:

https://www.oireachtas.ie/en/debates/debate/seanad/2014-12-03/9/.

In the case of a small entities (such as SMEs), a financial loss may result in it going out

of business before it is in a position to prove such loss in order to take a defamation

action.

 A defamatory publication could make it very difficult to recruit or retain staff, or cause

distrust in relations with core partners such as the body corporate’s banks, customers, or

trade unions – it could be very difficult to show the financial implications of such adverse

consequences for a body corporate.

 The fact that a business cannot suffer hurt, distress or injury to feelings is an issue that

can be taken into account in determining the level of general damages.

 Both the Law Reform Commission Report on the Civil Law of Defamation147F

148

and the

Report of the Legal Advisory Group on Defamation148F

149

recommended that there should

be a statutory provision that corporate bodies have a cause of action in defamation

irrespective of whether financial loss is consequent, or likely to be consequent, upon the

publication.

 Not all corporate bodies operate for profit, so this proposal would result in different

treatment for different types of bodies corporate which may not be justified.

 The legal implications of confining any such provision to bodies corporate that operate

for profit would need to be considered.

 The ECtHR has held that “in addition to the public interest in open debate about business

practices, there is a competing interest in protecting the commercial success and viability

of companies, for the benefit of shareholders and employees, but also for the wider

economic good”.149F

150

Option 2: Provide that a body corporate may not sue for defamation unless it first shows that

the statement has caused or is likely to cause serious harm; in the case of a body that trades

for profit, this means serious financial loss

Arguments in favour

 A serious harm test could involve financial or reputational harm so it would mean that

all bodies corporate are treated equally.

 It would be logical to apply higher standards to bodies corporate than to individuals.

 Bodies corporate already have a number of legal means to protect their brand/reputation.

 The constitutional issues in relation to the application of a serious harm test in the case

of individuals may not apply.

Arguments against

148

Report on Civil Law of Defamation, Law Reform Commission, 1991.

149

Report of the Legal Advisory Group on Defamation, March 2003.

150

Tarlach McGonagle quoting from, Steel and Morris v UK [2005] ECHR (App no. 68416/01) 19 July 2011

 The concept of serious harm to a plaintiff’s reputation is difficult to define and may give

rise to mini-trials at a preliminary stage, thus increasing the complexity and costs of

proceedings.

 Given the diffuse and often intangible nature of harm to reputation, it could be difficult

in practice for plaintiffs to prove serious harm.

 The serious harm test would remove a core question relating to the alleged defamatory

statement from the consideration of the jury which has long been embedded in the Irish

legal system in defamation case.

 A serious harm test may not have the intended impact of significantly reducing the

volume of claims being taken.

 In the case of bodies corporate trading for profit, the arguments against a financial loss

requirement set out at option 1 would apply.

Option 3: Do nothing

Arguments in favour

 The arguments against options 1 and 2 set out above would apply.

Arguments against

 The arguments in favour of options 1 and 2 set out above would apply.

Recommendations

The following option is recommended:

 Consider Option 2: Provide that a body corporate may not sue for defamation unless it

first shows that the statement has caused or is likely to cause serious harm; in the case

of a body that trades for profit, this means serious financial loss; consider whether

smaller entities such as SMEs should be exempted from this requirement;

The following options are not recommended:

 Option 1: Provide that a body corporate that operates for profit can only recover damages

for defamation where it proves that the statement has caused or is likely to cause financial

loss; and

 Option 3: Do nothing.

2.6 Position of Public Bodies

2.6.1 Current Legal Position

The Act does not include specific provisions in relation to public bodies. The application of the

Act to bodies corporate is set out above. As many public bodies are also corporate bodies, they

are therefore entitled under section 12 to issue defamation proceedings based on reputational

damage, even if that body would not suffer financial loss.

2.6.2 Main issues raised in course of review

A number of submissions by private individuals recommended that entities performing

government or regulatory functions should not be allowed to sue in defamation.150F

151

One

submission indicated that the law needs to clarify whether State bodies should be able to take

defamation actions.151F

152

Private Members’ Bill – Defamation (Amendment) Bill 2014

In 2014 a Private Members’ Bill, the Defamation (Amendment) Bill 2014, was brought forward

by Senator Crown. It proposed to amend the Defamation Act 2009, to restrain a public body

from bringing an action for defamation in respect of statements which may injure its reputation,

by providing that only nominal damages of €1 may be awarded in such proceedings.152F

153

The

stated intention of the Bill was to prevent public bodies from using the resources of the State

to influence comment by the press and public.

The Government did not oppose the Bill at the time but expressed reservations about its

content. It also stated that there may be a case in principle for reviewing the extent to which a

public body, which is a corporate body, should be entitled to bring a defamation action under

section 12 of the Act, and for assessing to what extent such an action remains relevant and

appropriate. Moreover, it stated that any such review should take careful account of the many

different types of public bodies which are corporate bodies.

2.6.3 Comparative perspectives

In England and Wales, the capacity of public bodies to sue for defamation is governed by the

1993 decision of the House of Lords in Derbyshire County Council v Times Newspapers153F

154

That decision held that neither a local authority or a Government Department, nor the Crown

itself, has a right to sue for defamation in relation to the exercise of its “governmental and

administrative functions”:

“[It] would be a serious interference with the free expression of opinion hitherto enjoyed

… if the wealth of the State, derived from the State’s subjects, could be used to launch

against those subjects actions for defamation because they have, falsely and unfairly it

may be, criticised or condemned the management of the country.”154F

155

However, this does not prevent an officer, or an individual member, of a government body

suing personally for defamation, if the defamatory statement can be interpreted as damaging

their individual reputation155F

156

. Gatley adds that a public body that does not exercise

151

Anonymous1, Lee Crowley, K. Fitzpatrick, Anonymous2, T. O’Conaill, H. O’Driscoll, D. Reynolds.

152

Law Society (anonymous solicitor(s))

153

Defamation (Amendment) Bill 2014 (Bill 63 of 2014), https://www.oireachtas.ie/en/bills/bill/2014/63/. The Bill

lapsed with the dissolution of the Dáil and Seanad on 28 April 2016.

154

Derbyshire County Council v Times Newspapers [1993] AC 534.

155

Derbyshire, above, at p. 549, citing a South African judgment from 1946. See Gatley, on Libel and Slander,

edn., para 8.20.

156

Derbyshire, above. See Gatley, above, para 8.20, at footnotes 138-139.

governmental or administrative functions (such as a university funded by public money) may

remain entitled to sue for defamation156F

157

In Scotland, section 2(1) of the Defamation and Malicious Publication (Scotland) Act 2021

contains a prohibition on public authorities157F

158

bringing defamation proceedings. It also

specifies that a person is a “public authority” if the person’s functions include functions of a

public nature.158F

159

Section 2(5) clarifies that the section does not prevent an individual from

bringing defamation proceedings in a personal capacity (as distinct from the individual acting

in the capacity of an office-holder or employee).

In Northern Ireland, during the Northern Ireland Law Commission consultation, there was

some consideration of introducing a bar on defamation claims by “emanations of the state, or

corporate bodies delivering services with public money”. However, it was considered that such

situations may also be “adequately addressed through the clause1 requirement that serious

harm be demonstrated if any such claim is to be successful”.159F

160

In Australia, public bodies were precluded under common law from suing for defamation,

with Australian courts following the Derbyshire judgment. The uniform defamation laws now

include statutory provisions to this effect160F

161

Similarly, Canadian law “precludes a government body from suing for defamation”161F

162

In New Zealand, the 1992 Defamation Act does not include express provisions regarding

public sector bodies.

2.6.4 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 provide for a limit on the amount of damages that can be awarded to a public sector/state

body;

 provide for a limit on the amount of damages that can be awarded to a public authority;

 provide that a public authority is not entitled to bring a defamation action;

 do nothing.

157

Gatley, above, para 8.20, at footnote 126, citing Duke v University of Salford 2013 EWHC 196 QB, where the

High Court held that although the university was funded by public money, it was not to be ‘equated with central

or local government’ and therefore was not covered by the Derbyshire ruling.

158

A public authority is defined as: (a) any institution of central government, including in particular the Scottish

Ministers and any non-natural person owned or controlled by them, (b) any institution of local government,

including in particular each local authority and any non-natural person that such an authority owns or controls, (c)

a court or tribunal, (d) any person or office not falling within paragraphs (a) to (c) whose functions include

functions of a public nature (unless excluded by regulations made under section 2(6)).

159

Defamation and Malicious Publication (Scotland) Act 2021,

https://www.legislation.gov.uk/asp/2021/10/enacted

160

Scott, Andrew (2016) Reform of defamation law in Northern Ireland. Department of Finance, Belfast. (4.03-

4.04)

161

Gatley, para 8.20, footnote 137, citing the example of s. 9 Defamation Act 2005 (New South Wales).

162

Gatley, on Libel and Slander, 12

edn., para 8.20, footnote 137.

Option 1: Provide for a limit on the amount of damages that can be awarded to a public

sector/state body

Arguments in favour

 Setting a limit on the amount of damages that can be awarded to a public sector/state

body would facilitate the media in holding such bodies to account without the fear of

being sued for large awards of damages.

 Allowing such bodies to sue for defamation while limiting the amount of damages that

could be awarded would ensure that public sector/state bodies can vindicate their

reputation.

 This option would be in line with the Private Members Defamation (Amendment) Bill

2014.

Arguments against

 Setting a limit on the amount of damages that can be awarded to a public sector/state

body would need careful consideration, in particular, as regards its constitutionality.

 There are a broad range of public sector/state bodies so determining which bodies should

be subject to a limit on the amount of damages that can be awarded would be difficult.

 Setting a limit on the amount of damages that can be awarded to a commercial state body

would result in a difference in treatment between such bodies and private sector

competitors which could create legal difficulties and would give rise to questions of

fairness.

 It could undermine the effect of damages in helping to ensure that a publisher makes sure

to verify the truth and veracity of the content, thoroughly checks the sources, and

generally takes every available precaution prior to publication.

 In practice, defamation proceedings by public sector/state bodies are very rare, and it can

hardly be argued that the press or the public in Ireland are reluctant to enter into robust

criticism and debate regarding the actions and policies of public sector/state bodies.162F

163

Option 2: Provide for a limit on the amount of damages that can be awarded to a public

authority

Arguments in favour

 The arguments in favour of setting a limit on the amount of damages that can be awarded

to a public sector/state body would apply.

 A public authority cannot suffer financial loss.

163

Defamation (Amendment) Bill 2014: Seanad Second Stage,

https://www.oireachtas.ie/en/debates/debate/seanad/2014-12-03/9/

 Limiting the amount of damages that can be awarded could put greater focus on other

remedies, such as a correction order or an order prohibiting publication or further

publication of a defamatory statement, which may be more appropriate in the case of

public sector/state bodies.

Arguments against

 Setting a limit on the amount of damages that can be awarded to a public authority would

need careful consideration, in particular, as regards its constitutionality.

 Setting a limit on the amount of damages could undermine the effect of damages in

helping to ensure that a publisher makes sure to verify the truth and veracity of the

content, thoroughly checks the sources, and generally takes every available precaution

prior to publication.

 In practice, defamation proceedings by public sector/state bodies are very rare, and it can

hardly be argued that the press or the public in Ireland are reluctant to enter into robust

criticism and debate regarding the actions and policies of public sector/state bodies.163F

164

Option 3: Provide that a public authority is not entitled to bring a defamation action

Arguments in favour

 It would facilitate public scrutiny of such bodies without the fear of being sued.

 Public authorities should not use State resources to issue defamation proceedings.

Arguments against

 A defamatory statement can affect the reputation of, and undermine the confidence of the

public in, a public authority, so such a body should be able to take an action under the

Defamation Act.

 Irresponsible or scandalous comments about a public authority could undermine public

trust in such a body which would be contrary to the public interest. It is particularly

important, that the public’s confidence in such bodies is not undermined by defamatory

statements.

 There are already a number of defences available under the Act (e.g. fair and reasonable

publication on a matter of public interest (section 26)) that should provide sufficient

defences for the media in respect of investigative journalism into public authorities. It

can be argued that the Act strikes the correct balance between the right to freedom of

expression and the right to a reputation or a good name.

164

Defamation (Amendment) Bill 2014: Seanad Second Stage,

https://www.oireachtas.ie/en/debates/debate/seanad/2014-12-03/9/

 In practice, defamation proceedings by public bodies are very rare, and it can hardly be

argued that the press or the public in Ireland are reluctant to enter into robust criticism

and debate regarding the actions and policies of public bodies.164F

165

Option 4: Do nothing

Arguments in favour

 There isn’t evidence that the current law creates a barrier to freedom of expression.

 The Act contains a wide range of defences to protect freedom of speech of news media

while guarding the reputations of natural and legal persons.

 In practice, defamation proceedings by public bodies are very rare, and it can hardly be

argued that the press or the public in Ireland are reluctant to enter into robust criticism

and debate regarding the actions and policies of public bodies.165F

166

 The current provisions in the Defamation Act strike the right balance between the right

of freedom of expression and the right to reputation or good name.

Arguments against

 The unique features of public authorities warrant specific regulation.

Recommendations

The following option is recommended:

 Option 3: Consider whether to provide that a public authority is not entitled to bring a

defamation action.

The following options are not recommended:

 Option 1: Provide for a limit on the amount of damages that can be awarded to a public

sector/state body;

 Option 2: Provide for a limit on the amount of damages that can be awarded to a public

authority; and

 Option 4: Do nothing.

2.7 Defamation of the dead

2.7.1 The current legal position

Prior to the introduction of the 2009 Act, a defamation action did not survive the death of the

plaintiff taking the action. Section 39 of the Act provides that “a cause of action for defamation

vested in him immediately before his death shall survive for the benefit of his estate.”166F

167

165

Defamation (Amendment) Bill 2014: Seanad Second Stage,

https://www.oireachtas.ie/en/debates/debate/seanad/2014-12-03/9/

166

Defamation (Amendment) Bill 2014: Seanad Second Stage,

https://www.oireachtas.ie/en/debates/debate/seanad/2014-12-03/9/

167

Section 39(2) provides:

However, the Act also specifies that any awards in such cases shall not include general, punitive

or aggravated damages. The only awards available to the estate of the deceased person are

special damages and legal costs, with any remedies available being those provided in the

legislation i.e. declaratory or correction orders.167F

168

Until recently the section 39 provision had never come before Irish courts. The first example

of a defamation case taken by the estate of a deceased person under the 2009 Act was instigated

in the circuit court in 2019.168F

169

In that case, the plaintiff had initiated proceedings, in 2016, prior

to his death. Proceedings are continuing.

The 1991 Law Reform Commission Report on The Civil Law of Defamation169F

170

considered the

issue and recommended that:

(1) There should be a new cause of action in respect of defamatory statements made

about a person who is dead at the time of publication;

(2) The right to institute such proceedings should be vested solely in the personal

representative of the deceased who should, however, be under a statutory obligation

to consult the immediate family of the deceased, i.e. spouse, children, parents,

brothers and sisters, before the proceedings are instituted;

(3) The period of limitation within which proceedings must be instituted should be 3

years from the date of death of the allegedly defamed person;

(4) The only remedy available should be a declaratory order and, where appropriate,

an injunction.

The 2003 Report of the Legal Advisory Group on Defamation did not however endorse this

recommendation and noted that “its essential aim - to provide some mechanism whereby the

Section 7 of the Civil Liability Act 1961 is amended by –

(a) the insertion of the following subsection:

“(1A) On the death of a person on or after the commencement of section 39(2)(a) of the Act of 2009, a

cause of action for defamation vested in him immediately before his death shall survive for the benefit

of his estate.”,

and

(b) the insertion of the following subsection

“(2A) Where by virtue of subsection (1A) of this section, a cause of action for defamation survives for

the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of

that person shall not include general damages, punitive damages or aggravated damages.”

168

McMahon, B. and Binchy, W., Law of Torts, 4

edn, (2013), [34.380].

169

‘Late Donegal councillor’s estate to continue case against Gemma O’Doherty’:

https://www.irishtimes.com/news/crime-and-law/courts/circuit-court/late-donegal-councillor-s-estate-to-

continue-case-against-gemma-o-doherty-1.3840559;

‘Estate of deceased politician allowed continue defamation claim against journalist O'Doherty’:

https://www.independent.ie/irish-news/courts/estate-of-deceased-politician-allowed-continue-defamation-claim-

against-journalist-odoherty-37959228.html;

‘McEniffs seek recordings from O’Doherty in defamation case’: https://www.businesspost.ie/news-

focus/mceniffs-seek-recordings-from-odoherty-in-defamation-case-99efd69f

170

Report on The Civil Law of Defamation (LRC 38-1991):

https://www.lawreform.ie/_fileupload/Reports/rDefamation.pdf

reputation of a deceased person can be vindicated - can largely be realised by way of an

effective Press Council, subject to the proviso that the role assigned to such a Council has the

appropriate breadth”.170F

171

Relevant ECHR Case-Law

Tolstoy v. United Kingdom171F

172

The case centred on a pamphlet written in the 1980s by the applicant, alleging that a fellow

college staff member had engaged in improper mistreatment of prisoners in Yugoslavia during

the Second World War. The person accused took a libel case and was awarded £1.5m in

damages, the highest award ever given at the time in that jurisdiction. The applicant appealed

to the ECtHR alleging a violation of his right to freedom of expression as contained in Article

10 of the Convention172F

173

, and in particular, Part 2 which provides:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may

be subject to such formalities, conditions, restrictions or penalties as are prescribed by

law and are necessary in a democratic society…"

He argued that the damages awarded against him could not be considered to have been

"prescribed by law", and that the size of the award and the breadth of the injunction had been

disproportionate to the aim of protecting the persons "reputation or rights" and had thus not

been "necessary in a democratic society".

The Court held that the award was "prescribed by law" within the meaning of Article 10 of the

Convention; but also held that the award, in regard to its size taken in conjunction with the state

of national law at the relevant time was not "necessary in a democratic society" and thus

constituted a violation of his right to freedom of expression as guaranteed by Article 10.

In its judgment, it noted that the European Court of Human Rights has recently summarised

the major principles of its case-law on the "necessity" test in Article 10 of the Convention as

follows:

(a) Freedom of expression constitutes one of the essential foundations of a democratic

society; subject to paragraph 2 of Article 10, it is applicable not only to 'information' or

'ideas' that are favourably received or regarded as inoffensive or as a matter of

indifference, but also to those that offend, shock or disturb. Freedom of expression, as

enshrined in Article 10 is subject to a number of exceptions which, however, must be

narrowly interpreted and the necessity for any restrictions must be convincingly

established.

(b) These principles are of particular importance as far as the press is concerned.

171

2003 Report of the Legal Advisory Group on Defamation, 15:

http://www.justice.ie/en/JELR/rptlegaladgpdefamation.pdf/Files/rptlegaladgpdefamation.pdf

172

Tolstoy v United Kingdom [1995] 20 EHRR 442:

http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-45632&filename=001-

45632.pdf&TID=thkbhnilzk

173

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to

receive and impart information and ideas without interference by public authority and regardless of frontiers.

This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema

enterprises”: https://www.echr.coe.int/documents/convention_eng.pdf

The ECtHR ruling is seen as illustrating that that even where there is an underlying cause of

action, a disproportionate award can still be a breach of Article 10's protection of freedom of

expression. The context of the case, involving freedom of expression in relation to a work of

historical enquiry, is also pertinent.

Putistin v. Ukraine 173F

174

The case concerned an article written about the legendary “Death Match” between Ukrainian

footballers and members of the German Luftwaffe in 1942 in Kyiv. The applicant alleged that

the article discredited his father, who had played in the game, as it suggested that he had been

a collaborator. He claimed that, by rejecting his requests for the article to be rectified, the

Ukrainian courts had failed to protect his and his family’s reputation.174F

175

The Court examined the complaint under Article 8 (right to respect for private and family

life).175F

176

It accepted that courts might sometimes be required to protect the reputation of the

deceased and thus came within the scope of Article 8. It also accepted that the reputation of a

deceased member of a person’s family might affect one’s private life and identity, provided

that there was a sufficiently close link between them.

Though a quotation in the article had suggested that some members of the Ukrainian team had

collaborated with the Gestapo, none of the pictures or words referred to the applicant’s father.

The level of impact on the applicant had thus been quite remote, and as a result, the Court found

that the applicant had not been directly affected by the publication. Moreover, the domestic

courts had been obliged to have regard to the right of the newspaper and journalistic freedom

of expression, and to balance those against the rights of the applicant. The article had informed

the public of a proposed film on an historical subject. It had been neither provocative nor

sensationalist. As the applicant’s Article 8 rights had been affected only marginally and in an

indirect manner, it found that the domestic courts had struck an appropriate balance between

the competing rights.176F

177

Zhugashvili v. Russia (dec.)177F

178

In this case the applicant, the grandson of the former Soviet leader, Joseph Stalin sued

the Novaya Gazeta newspaper for defamation after it published an article accusing leaders of

the Soviet Politburo, including Stalin, of being “bound by much blood” in the order to

execute Polish prisoners of war at Katyń in 1940. He also sued the newspaper when it

subsequently published a further article giving the background to the defamation proceedings.

The ECtHR reaffirmed the principle that publications concerning the reputation of a deceased

member of a person’s family might, in certain circumstances, affect that person’s private life

174

Putistin v. Ukraine [2013] ECHR (App no. 16882/03).

175

Ukrainian courts were justified in not ordering rectification of article about “Death match” in 1942 between

Ukrainian football team and German Luftwaffe, ECHR 342 (2013) Press Release,

file:///C:/Users/ohagantx/Downloads/003-4575874-5531100%20(2).pdf

176

(Article 8, ECHR) 1. Everyone has the right to respect for his private and family life, his home and his

correspondence. 2. There shall be no interference by a public authority with the exercise of this right except

such as is in accordance with the law and is necessary in a democratic society in the interests of national

security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the rights and freedoms of others;

https://www.echr.coe.int/documents/convention_eng.pdf

177

Information Note on the Court’s case-law No. 168:

https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-9073%22]}

178

Zhugashvili v. Russia (dec.) - 41123/10 Decision 9.12.2014 [Section I]

and identity and thus come within the scope of Article 8 of the ECHR. However, it

distinguished between defamation of a private individual and legitimate criticism of public

figures who, by taking up leadership roles, expose themselves to outside scrutiny. It held that

the Katyń tragedy and the related historical figures’ alleged roles and responsibilities inevitably

remained open to public scrutiny and criticism, as they presented a matter of general interest

for society. Given that such cases required the right to respect for private life to be balanced

against the right to freedom of expression, the Court reiterated that it was an integral part of

freedom of expression, guaranteed under Article 10 of the Convention, to seek historical truth.

Independent historical research in Poland

Earlier this year, a Polish libel case made headlines when a court ordered two prominent

Holocaust scholars to apologise to a woman who claimed her deceased uncle had been

slandered in a two-volume historical work.178F

179

The court ruled that the editors of the book

apologise for saying that her uncle had contributed to the death of Jewish people during the

Nazi occupation. The judge involved expressed the view that the ruling should not have a

cooling effect on academic research, and in the courts opinion, the payment of compensation,

would have constituted such a factor. As a result, it ruled out such a payment.

The case had been followed closely by critics and academics who were concerned that the trial

may undermine freedom of academic research. It came against a backdrop of a 2018 attempt

to pass a law criminalising the act of falsely blaming Poland for Germany’s Holocaust crimes.

The criminal penalties were eventually dropped in favour of civil penalties after the legislation

was heavily criticised internationally.179F

180

It has been argued that the case covered similar ground to the proposed law by attempting to

establish offence to national dignity as grounds for suing over any such claims in the future.

The case is not final, as one of the authors is planning to appeal. But many scholars believe it

will set an important precedent for freedom of Holocaust research in Poland.

2.7.2 Main issues raised in course of review

Only two submissions raised the issue of section 39. Both advocated its removal. Among the

reasons cited were: the lack of general, punitive or aggravated damages, and the difficulties in

establishing special damages in the absence of the deceased and inability to cross examine; a

lack of balance between the right to freedom of expression and that to a good name; a chilling

effect on free expression after death; and the lack of an equivalent provision in UK

legislation.180F

181

2.7.3 Comparative perspectives

In England and Wales, the Defamation Act 2013 does not contain any provision regarding

defamation of the dead.

179

‘Holocaust scholars ordered to apologize in Polish libel case’: https://apnews.com/article/poland-europe-

warsaw-13f643d34b511cce0f2bcf2f933d4698 ; ‘Polish court orders historians to apologise over Holocaust

book’: https://www.reuters.com/article/us-poland-holocaust-idUSKBN2A91M7

180

‘Future of Holocaust research in Poland hinges on libel case’: https://apnews.com/article/world-news-world-

war-ii-trials-poland-germany-f49788cd4ec3e3d161beaa75ba0df7da

181

Newsbrands, C. Morris.

In Scotland, the Defamation and Malicious Publication (Scotland) Act 2021 does not contain

any provision in relation to defamation of the dead.

In Northern Ireland, the 2016 Recommendations to the Department of Finance for Reform of

Defamation Law in Northern Ireland makes no reference to defamation of the dead.181F

182

In 2014, following the introduction of the 2013 Act in England and Wales, the Northern Ireland

Assembly Committee for Finance and Personnel produced a briefing paper in consideration of

a proposed Private Member’s Bill in relation to defamation.182F

183

It noted that no provision was

made in legislation in England and Wales, or the Republic of Ireland, regarding defamation of

deceased persons. The main arguments against such legislation were: that reputation is

personal; that harm cannot be shown after death; that the deceased cannot give evidence in

court; and that such legislation may inhibit commentary on historical figures. It also noted that

although there had been no change to the law in any of the neighbouring jurisdictions, if the

family of a deceased person feels aggrieved it was suggested these issues could be dealt with

through codes of practice in relation to the media – a view similar to that of the 2003 Report of

the Legal Advisory Group on Defamation.

In Australia, section 10 of the Model Defamation Provisions provides that a person (including

a personal representative of a deceased person) cannot assert, continue or enforce a cause of

action for defamation in relation to the publication of defamatory matter about a deceased

person (whether published before or after his/her death). The Model Defamation Amendment

Provisions 2020 insert a new subsection in section 10 to allow a court to determine the question

of costs in respect of defamation proceedings that end because of the death of a party if it is in

the interests of justice to do so.183F

184

In Canada, the Ontario report on Defamation Law in the Internet Age does not make any

recommendations in relation to defamation of the dead.

In New Zealand, the 1992 Defamation Act does not expressly provide for defamation of the

dead.

2.7.4 Option for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following option was identified:

 repeal section 39 of the Act (which provides for survival of a defamation on the death of

the plaintiff).

Arguments in favour

 Traditional view that the dead cannot be defamed and that an action ends with the death

of a person.

182

Scott, Andrew (2016) Reform of defamation law in Northern Ireland. Department of Finance, Belfast.

183

‘Defamation and the Dead’, Research and Information Service, Briefing Paper 62/14 30 May 2014 NIAR 254-

14, available at:

http://www.niassembly.gov.uk/globalassets/documents/raise/publications/2014/finance_personnel/6214.pdf

184

Model Defamation Amendment Provisions 2020 prepared by the Parliamentary Counsel’s Committee and

approved by the Council of Attorneys-General on 27 July 2020.

 A lack of general, punitive or aggravated damages, and difficulties in establishing special

damages in the absence of the deceased.

 Inability to cross examine the deceased.

Arguments against

 Section 39 does not involve defamation of the dead, either recently or historical, but

rather the continuation of an existing cause of action after the death of a plaintiff for the

benefit of their estate.184F

185

 Awards available to the estate of the deceased person are limited to special damages and

legal costs. Section 39 means that defamation is treated in the same way as other torts

e.g. personal injuries.

 ECHR case-law has accepted the possibility that courts may sometimes be required to

protect the reputation of the deceased, within the scope of Article 8 of the ECHR.

 ECHR case-law has accepted that the reputation of a deceased member of a person’s

family might affect one’s private life and identity, provided that there was a sufficiently

close link between them.

 To date, there has been only one instance of a case taken by the estate of a deceased

person under section 39 of the 2009 Act, which implies that it will remain an uncommon

avenue in the future.

 The subject of defamation of the dead did not attract much attention in submissions and

does not appear to be a priority issue.

Recommendation

The following option is not recommended:

 Repeal section 39 of the Act (which provides for survival of a defamation on the death

of the plaintiff).

185

A personal representative of a deceased person may continue proceedings commenced by the deceased, or

may initiate proceedings within the limitation period set out in the 2009 Act (i.e. one year extendable to not

more than two years), provided the defamatory statement concerning the person was published before his/her

death. (Maher, John, The Law of Defamation, 2

edn. at p. 376). In Joseph Hewitt as Legal Personal

Representative of the Estate of Dolores Hewitt (Deceased) v The Health Service Executive ([2014] IEHC 300), a

personal injuries case, the High Court stated that section 7(1) of the Civil Liability Act 1961 (on which section

(1A) of that Act as inserted by section 39(2) of the 2009 Act is based) “enables the personal representative of a

deceased to continue an action already commenced by a deceased prior to his or her death. In that case, the

personal representative will apply for an order substituting the personal representative as plaintiff in place of

the deceased in the action already commenced. Section 7 also allows for the commencement by the personal

representative of an action vested in the deceased at the date of death.” While this aspect of the High Court

decision was not appealed, the Court of Appeal (in an appeal against the issue of the time limit for the initiation

of an action by the personal representative of the deceased) confirmed the High Court’ interpretation of section

7 ( Joseph Hewitt as Legal Personal Representative of the Estate of Dolores Hewitt (Deceased) v The Health

Service Executive ([2016] IECA 194).

Chapter 3: Defences

3.1 Truth

As the relevance of this defence depends on the maintenance of the “presumption of falsity”,

the following text in relation to the defence of truth should be read in conjunction with the text

on the presumption of falsity in chapter 2.

3.1.1 Current legal position

Section 16 of the Act provides that it is a defence (the defence of truth) to a defamation action

for the defendant to prove that the statement in respect of which the action was brought “is true

in all material respects”. Subsection (2) of that section provides that where the statement

contains 2 or more allegations, the defence of truth “shall not fail by reason only of the truth of

every allegation not being proved, if the words not proved to be true do not materially injure

the plaintiff’s reputation having regard to the truth of the remaining allegations”.

3.1.2 Main issues raised in course of review

See text in relation to presumption of falsity, Chapter 2.

3.1.3 Symposium on Reform of Defamation Law

In his presentation to the Symposium on Reform of Defamation Law, Professor Neville Cox

pointed to the difference in the wording of the 2009 Act and the England and Wales legislation.

Specifically, he pointed out:185F

186

“… it is worth noting that there is a difference between the approach in the 2009 Act

and in the UK 2013 Act to the defence of truth generally. Under s. 16 of the 2009 Act,

in order to avail of the defence of truth the defendant must prove that the statement is

true ‘in all material respects’. Under s 2 of the 2013 Act, the defence will apply if the

defendant can prove that the statement is substantially true. Whether this difference in

wording will have much impact in practice is uncertain. Nevertheless it does suggest a

different focus in so far as the defence is concerned, and thus might warrant legislative

attention.”186F

187

186

Professor Neville Cox, Defamation Law and the 2009 Act, Presentation to Symposium on Reform of

Defamation Law, 14 November 2019

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf .

187

Professor Neville Cox, Defamation Law and the 2009 Act, Presentation to Symposium on Reform of

Defamation Law, 14 November 2019

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf .

3.1.4 Comparative Perspectives

In England and Wales, section 2 the Defamation Act 2013187F

188

abolished the pre-existing

common law defence of justification and replaced it with the statutory defence of truth i.e.

where the defendant shows that the imputation conveyed by the statement complained of is

substantially true. Where the statement conveys two or more imputations, the defence does not

fail if one or more of the imputations is not shown to be substantially true if, having regard to

the imputations which are show to be substantially true, the imputations which are not shown

to be substantially true do not seriously harm the claimant’s reputation.

In Scotland, section 5 of the Defamation and Malicious Publication (Scotland) Act 2021

replaces the current common law and statutory defence of veritas (truth) with a statutory

defence of truth: it provides that it is a defence to a defamation proceedings for the defendant

to show that the imputation conveyed by the statement complained of is true or substantially

true.188F

189

In Northern Ireland, the common law recognises the defence of justification (truth) which

has been refined by statutory amendments189F

190

e.g. section 5 of the Defamation (Northern

Ireland) Act 1955 provides that where a statement contains two or more charges against a

plaintiff, a defence of justification will not fail by reason only that the truth of every charge is

not proved if the words not proved to be true do not materially injure the plaintiff’s reputation

having regard to the truth of the remaining charges. The report on Reform of Defamation Law

in Northern Ireland190F

191

recommends that a provision similar to section 2 of the England and

Wales Act should be introduced in Northern Ireland.191F

192

188

Defamation Act 2013, section 2 (Truth)

(1) It is a defence to an action for defamation to show that the imputation conveyed by the statement

complained of is substantially true.

(2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more

distinct imputations.

(3) If one or more of the imputations is not shown to be substantially true, the defence under this section

does not fail if, having regard to the imputations which are shown to be substantially true, the

imputations which are not shown to be substantially true do not seriously harm the claimant’s

reputation.

The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act

1952 (justification) is repealed.

189

Defence of truth

(1) It is a defence to defamation proceedings for the defender to show that the imputation conveyed by the

statement complained of is true or substantially true.

(2) Where defamation proceedings are brought in respect of a statement conveying two or more distinct

imputations, the defence under subsection (1) does not fail if –

(a) not all of the imputations have been shown to be true or substantially true, and

(b) having regard to the imputations that have been shown to be true or substantially true, publication

of the remaining imputations has not caused serious harm to the reputation of the pursuer.

190

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, Dr Andrew

Scott, June 2016 at para. 2.09.

191

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, Dr Andrew

Scott, June 2016.

192

The report also recommends the withdrawal of the “single meaning rule” coupled with the introduction of a

bar to the bringing of claims where a publisher has made a correction or retraction promptly and prominently

which would, according to the report, have a significant bearing on future litigation involving the defence of

justification.

In Australia, section 25 of the Model Defamation Provisions provides that it is a defence to

the publication of defamatory matter if the defendant proves that the defamatory imputations

carried by the matter are substantially true. Section 26 (as amended) provides for a defence of

contextual truth, which deals with a situation where there are a number of defamatory

imputations in a statement but the plaintiff choses to proceed with one or more but not all of

them. In that case a defendant may have a defence of contextual truth if he/she proves that (a)

the statement carried one or more imputations that are substantially true (contextual

imputations); and (b) any defamatory imputations of which the plaintiff complains that are not

contextual imputations do not further harm the reputation of the plaintiff because of the

substantial truth of the contextual imputations.

In Ontario, the common law includes a defence of justification in accordance with which the

burden of rebutting the presumption of falsity and proving the substantial truth of the “sting”

of the statement as a matter of fact falls on the defendant. This defence is supplemented by

section 22 of the Libel and Slander Act which provides that the defence of justification may

succeed against a defamatory allegation even if it does not succeed against other defamatory

allegations, where the remaining allegations do not, on their own, materially injure the

reputation of the plaintiff. The Law Commission of Ontario’s report on Defamation Law in the

Internet Age recommends that a provision similar to section 22 be included in Ontario’s

proposed new Defamation Act.192F

193

In New Zealand, section 8 of the Defamation Act 1992 provides for the defence of truth. The

defence will be successful if the defendant proves that imputations contained in the allegedly

defamatory material were true or materially true, or where the defendant proves that the

publication taken as a whole was in substance true or was in substance materially true.

3.1.5 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 require the plaintiff to prove that the words complained of are untrue;

 amend section 16 to allow for the defence of truth where the defendant proves that the

statement is true or substantially true;

 provide that pleading the defence of truth should not give rise to the award of aggravated

damages;

 do nothing.

Option 1: Require the plaintiff to prove that the words complained of are untrue

See Chapter 2 – Presumption of Falsity

Option 2: Amend section 16 to allow for the defence of truth where the defendant proves that

the statement is true or substantially true

Arguments in favour

 This would appear to make it easier for the defendant to prove the defence of truth.

193

Defamation Law in the Internet Age, Law Commission of Ontario, Final Report, March 2020.

 This is the approach adopted in other common law jurisdictions.

Arguments against

 The precise implications in practice of this proposal are not clear.

Option 3: Provide that pleading the defence of truth should not give rise to the award of

aggravated damages

Arguments in favour

 A defendant should be able to vigorously defend his/her position without risking having

aggravated damages awarded against him/her.

Arguments against

 The conduct of the defence may result in aggravation of the original defamation.

 Whether or not the conduct of the defence has resulted in aggravation of the damage

caused to the plaintiff’s reputation should be left to the court to determine.

Option 4: Do nothing

Arguments in favour

 The arguments set out in Chapter 2 against the abolition of the presumption of falsity and

against option 2 above support the retention of the existing section 16.

 Section 8 of the Act provides that where a party in a defamation action (other than an

application for a declaratory order) serves pleadings containing assertions or allegations

of fact he/she shall swear an affidavit verifying those assertions or allegations. The other

party, unless the court otherwise directs, is entitled to cross-examine the party who swore

the affidavit in relation to any statement in the affidavit. It is an offence for a person to

make a statement in an affidavit that is false or misleading in any material respect which

he/she knows to be false or misleading. This provision was introduced as a result of a

recommendation of the Legal Advisory Group on Defamation193F

194

which pointed out that

the consequences of such a provision would be that a plaintiff could be examined in court

in relation to the contents of the affidavit. This proposal was suggested as an alternative

to removing the presumption of falsity.

Arguments against

 The arguments in favour of the abolition of the presumption of falsity set out in Chapter

2 and in favour of option 2 above apply.

194

Report of the Legal Advisory Group on Defamation (March 2003), p.11.

Recommendation

It is recommended that the defence of truth as set out in section 16 of the Act should not be

amended.

3.2 Absolute Privilege

3.2.1 Current legal position

Section 17 of the Act provides for the defence of absolute privilege. Subsection (1) provides

that it is a defence to a defamation action for the defendant to prove that the statement in respect

of which the action is brought would, if it had been made immediately before the

commencement of section 17, have been considered under the law as having been made on an

occasion of absolute privilege. Subsection (2) sets out an extensive, but non-exhaustive, list of

statements which attract absolute privilege under the Act. Broadly, subsection (2) provides for

absolute privilege in (i) the executive and government context; (ii) the legislative and

parliamentary context (including the European Parliament); and (iii) the judicial and quasi-

judicial context.

Absolute privilege is a complete defence and is not defeated by malice.

In Michael Reilly v Iconic Newspaper Limited,194F

195

citing Cox and McCullough, Reynolds J.

reaffirms that the question of whether the occasion upon which the publication was made was

one of privilege is a question of law to be determined by the judge. However, if there are

questions of fact upon which the question of law depended, then they are, prima facie, matters

for the jury to determine.

3.2.2 Issue raised in course of review

In accordance with section 17(2) absolute privilege applies to fair and accurate reports of public

proceedings (including decisions) of courts in the State, in Northern Ireland and in certain

international courts e.g. the Court of Justice of the European Union. Absolute privilege also

applies to fair and accurate reports of proceedings to which a relevant enactment referred to in

section 40 of the Civil Liability and Courts Act 2004 applies. The Parole Act 2019 extends the

scope of absolute privilege to certain statements and decisions made by the Parole Board in the

carrying out of its functions. It was suggested that the defence of absolute privilege should be

extended to reports of international courts.195F

196

(Qualified privilege currently applies to such

reports.)196F

197

3.2.3 Law Reform Commission Report: Privilege for reports of court proceedings197F

198

In its 2019 Report on Privilege for reports of court proceedings under the Defamation Act

2009, the Law Reform Commission (LRC) recommended that the Act should be amended to

195

[2021] IEHC 490

196

RTE

197

Section 18(3) and Part 1 of Schedule 1 of the Act, provide that qualified privilege applies (without explanation

or contradiction) to a fair and accurate report of public proceedings (including decisions) of courts (including a

court-martial) established under the law of any state or place other than the State or Northern Ireland.

198

Law Reform Commission Report: Privilege for Reports of Court Proceedings under the Defamation Act

2009, (LRC 121 – 2019).

provide that, in determining whether a report of court proceedings is “fair and accurate”, all of

the circumstances of the case should be considered, including the following non-exhaustive list

of circumstances:

 an abridged court report will be privileged provided that it gives a correct and just

impression of the proceedings;

 if the report as a whole is accurate, a slight inaccuracy or omission is not material;

 if a report contains a substantial inaccuracy it will not be privileged;

 it is not sufficient to report correctly part of the proceedings if, by leaving out other parts,

a false impression is created;

 a report assuming a verdict, before any verdict has been delivered, is not privileged.198F

199

The Commission explained that this suggested amendment is intended to clarify that a report

of court proceedings would meet the “fair and accurate” test in the 2009 Act even where it

includes a simple oversight, omission or error. It recommended that, in order to avoid any risk

that the proposal could lead to a lack of flexibility, the amendment should provide for a non-

exhaustive list of principles so that a court could consider such principles in the context of all

of the circumstances of the case.

3.2.4 Comparative Perspectives

In England and Wales, section 14 of the Defamation Act 1996 (as amended by section 7 of

the Defamation Act 2013) provides that a fair and accurate report of proceedings in public

before a court, if published contemporaneously with the proceedings, is absolutely privileged.

Section 14 originally extended to courts in the UK and specified international courts e.g. the

European Court of Human Rights. Section 7(1) of the Defamation Act 2013 extends the scope

of the defence to cover proceedings in any court established under the law of a county or

territory outside the UK and to any international court or tribunal established by the Security

Council of the United Nations or by international agreement. A court includes any tribunal or

body exercising the judicial power of the State. The 2013 amendments resulted in a greater

overlap with the defence of qualified privilege in section 15 and Part 1 of Schedule 1 of the

1996 Act199F

200

and common law qualified privilege. However, absolute privilege includes

requirements of contemporaneous publication and fairness and accuracy.200F

201

In Scotland, section 9 of the Defamation and Malicious (Publications) Act 2021 provides for

absolute privilege for the contemporaneous publication of a statement which is a fair and

accurate report of proceedings in public before a court; this section applies inter alia to courts

established under the law of a country or territory outside the UK.

In Northern Ireland, the report on Reform of Defamation Law in Northern Ireland

recommends adoption of the approach set out in section 7 of the 2013 England and Wales.

199

ibid at p. 28.

200

Section 15 and Part 1 of the Schedule to the Defamation Act 1996 provides for qualified privilege for fair and

accurate reports of proceedings of courts anywhere in the world, unless publication is shown to be made with

malice.

201

Gatley on Libel and Slander, Sweet and Maxwell, 12

edn. 2013 at para. 13.36.

3.2.5 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 extend the territorial scope of absolute privilege under section 17 to cover fair and

accurate reports of public proceedings in certain international courts and in the courts of

certain specified other States;

 amend the Act as suggested in the Law Reform Commission Report to clarify what is

protected under section 17 as a “fair and accurate” report of court proceedings in Ireland.

Option 1: Extend the territorial scope of section 17

Arguments in favour

 The defence of absolute privilege is based on public policy considerations, as opposed to

other defences which tend to focus more on freedom of expression as an important

factor.201F

202

It is an important aspect of public policy that those involved in the

administration of justice should be able to speak their minds without fear of legal

challenge. For this reason the defence of absolute privilege also applies to “fair and

accurate” reporting of such statements. These arguments would apply equally to fair and

accurate reports of public court proceedings in states other than the State or Northern

Ireland.

 This would bring Irish law broadly into line with the law in England and Wales and

Scotland and the proposed changes to Northern Ireland legislation.202F

203

Arguments against

 As noted by the Supreme Court in Irish Times Ltd v. Ireland,203F

204

it is not possible for all

members of the public to be present in court, so that in order to comply with Article 34.1

of the Constitution, the public “are entitled to be informed of the proceedings in the court

and to be given a fair and accurate account of such proceedings and the media are

entitled to give such an account to the wider public”. No similar argument exists in

respect of court proceedings in other countries.

 The defence of qualified privilege as set out in section 18(3) and Part 1 of Schedule 1 is

sufficient.

 The corresponding provision in the England and Wales legislation applies to the

contemporaneous publication, whereas there is no such limitation in section 17(2) of

2009 Act; it is therefore not possible to draw a direct comparison with the situation in

England and Wales.

202

Cox, N. and McCullough, E., Defamation Law and Practice at para. 7-01.

203

UK law applies to contemporaneous reporting while there is no such limitation in the 2009 Act.

204

[1998] 1 IR 359, at 383.

Option 2: Amend the Act as suggested in the Law Reform Commission Report

Arguments in favour

 The LRC made a number of convincing arguments in relation to this proposal as follows:

o The suggested principles or criteria clearly indicate that a report of court

proceedings would meet the “fair and accurate” test in the Act even where it

includes a simple oversight, omission or error.

o Inserting the principles into the Act would support the view that a person making

such a report would not be exposed to the risk of being sued in a defamation action.

o It would assist in underpinning high quality court reporting and therefore continue

to serve the important public interest of informing the public of the work of the

courts in the administration of justice under Article 34.1 of the Constitution.

Arguments against

 There are no obvious arguments against this proposal.

Recommendations

The following options are recommended:

 Option 1: Extend the territorial scope of absolute privilege under section 17 to cover fair

and accurate reports of public proceedings in certain international courts and in the courts

of certain specified other States; and

 Option 2: Amend the Act as suggested in the Law Reform Commission Report to clarify

what is protected under section 17 as a “fair and accurate” report of court proceedings in

Ireland.

3.3 Qualified Privilege

3.3.1 Current Legal Position

Section 18 (and the associated Schedule 1) of the Act provides for the defence of qualified

privilege.

Subsection (1) provides for the continuation of the common law defence of qualified privilege.

In most cases, a statement that would benefit from the common law defence will also benefit

from the statutory defence.204F

205

Subsection (2) provides that, without prejudice to the generality of subsection (1), it is a defence

for the defendant to prove (i) that the statement was published to a person or persons who had

a duty to receive, or interest in receiving, the information contained in the statement, or the

defendant believed upon reasonable grounds that the said person or persons had such a duty or

interest; and (ii) the defendant had a corresponding duty to communicate, or interest in

205

Cox N. and McCullough E., Defamation Law and Practice at para. 8-04.

communicating, the information to such person or persons. In accordance, with subsection (7)

the duty or interest can be a legal, moral or social duty or interest.

Subsection (3) and Part 1 of Schedule 1 set out a list of statements, reports and determinations

that benefit from qualified privilege. Subsection (5) provides that nothing in subsection (3)

shall be construed as protecting the publication of a statement that is prohibited by law, or of

any statement that is not of public concern and the publication of which is not for the public

benefit or limiting or abridging any privilege subsisting apart from subsection (3).

Subsection (4) and Part 2 of Schedule 1 set out a list of statements and reports that benefit from

qualified privilege subject to explanation or contradiction i.e. the publisher will have no

defence if it is proved that he/she was requested by the plaintiff to publish, in the same medium

of communication in which he/she published the statement concerned, a reasonable statement

by way of explanation or contradiction and has refused or failed to do so or has done so in a

manner that is not adequate or reasonable having regard to all the circumstances.

Section 19 provides that the defence of qualified privilege is destroyed if the plaintiff proves

that the defendant acted with malice. It also provides that the defence will not fail where the

defendant erroneously believed that the recipient of the statement was a person with a duty or

interest in receiving the information concerned.

3.3.2 Main issues raised in course of review

Schedule 1, as enacted, confers qualified privilege on specified documents emanating from

Member States of the European Union. A number of submissions to the review proposed that

the Act should be amended to ensure that the above provisions apply to the UK and Northern

Ireland post-Brexit.205F

206

These recommendations were given effect in the Withdrawal of the

United Kingdom from the European Union (Consequential Provisions) Act 2020 (Part 20).

These amendments ensure the continuation in Ireland of the defence of “qualified privilege” in

respect of fair and accurate public interest reporting by Irish-based newspapers and

broadcasters of certain statements, meetings and press conferences held in the UK, after the

end of the Brexit transition period on 31st December 2020.

A number of submissions to the review suggested that there should be no geographical

restrictions on the scope of qualified privilege or that there should be no geographical

restrictions on qualified privilege in so far as it relates to press releases and press

conferences.206F

207

A number of submissions recommended that qualified privilege should be extended to cover

court reports containing a factual error genuinely and honestly made; unless there is proof of

malice.207F

208

The former Attorney General’s request to the Law Reform Commission in relation

to this issue208F

209

was referred to in a number of those submissions.

206

Law Society (anonymous solicitor(s)), Local Ireland, NewsBrands.

207

Irish Times, NewsBrands, RTE.

208

Independent News and Media, Irish Times, Local Ireland, NewsBrands , NUJ, Eoin O’Dell.

209

Request by the then Attorney General on 18 December 2015 to the Law Reform Commission “to examine

the appropriateness of enshrining in our laws a provision that no report of court proceedings should be

actionable in defamation in the absence of proof of malice, and further to institute such proceedings the

One submission recommended that a qualified privilege for peer-reviewed statements in

scientific and academic journals, along the lines set out in section 6 of the England and Wales

Defamation Act 2013, should be introduced.209F

210

One submission suggested that qualified privilege should apply to responses to public

consolations undertaken by State agencies and departments.210F

211

One submission suggested that a plaintiff seeking to defeat qualified privilege should swear an

affidavit verifying alleged malice.211F

212

In the course of the drafting of the amendments to Schedule 1 of the Act for inclusion in the

Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act

2020, an issue with the drafting of paragraph (1) of Part 2 of Schedule 1 was identified. Section

18 of the Act provides for the defence of qualified privilege. Subsection (4) of section 18

provides that qualified privilege, subject to explanation or contradiction, applies to statements

listed in Part 2 of Schedule 1. Paragraph (1) of Part 2 of Schedule 1 (as enacted) states as

follows:

A fair and accurate report of the proceedings, findings or decisions of an association, or

a committee or governing body of an association, whether incorporated or not in the

State or in a Member State of the European Union, relating to a member of the

association or to a person subject, by contract or otherwise, to control by the association.

This provision was amended by Part 20 of the 2020 Act by the substitution of “in the State, in

a Member State or in the United Kingdom” for “in the State or in a Member State of the

European Union”.

It is not clear whether the reference to “in the State or in a Member State of the European

Union” (now “in the State, in a Member State or in the United Kingdom”) refers to (i) an

association whether or not it is incorporated or (ii) an association whether it is or is not

incorporated in the State or in a Member State [or the UK].

This provision replaces paragraph 1 of Part 2 of Schedule 1 of the Defamation Act 1961 which

provides:

A fair and accurate report of the findings or decisions of any of the following

associations, whether formed in the State or Northern Ireland, …..

It is clear therefore that the paragraph 1 of Part 2 of Schedule 1 of the 2009 Act is intended to

apply to associations (whether incorporated or not) established in the State, a Member State or

the UK.

3.3.3 Comparative Perspectives

proposed plaintiff should first have to seek leave of the court and demonstrate on affidavit the mala fides

alleged.

210

Eoin O’Dell

211

H. O’Driscoll.

212

Eoin O’Dell

In the UK,212F

213

section 15 of the Defamation Act 1996 confers qualified privilege on the

publication of any statement set out in Schedule 1 of the Act unless publication is shown to be

made with malice. Part I of Schedule 1 lists statements which attract qualified privilege without

explanation or contradiction, e.g. a fair and accurate report of proceedings in public of a

legislature or a court213F

214

anywhere in the world. Part II (as amended by section 7 of the 2013

Act) lists statements that attract qualified privilege subject to explanation or contradiction, e.g.

a fair and accurate copy of, extract from or summary of a notice published by a legislature or

government anywhere in the world or an authority anywhere in the world performing

governmental (including police) functions; a fair and accurate copy of, extract from or

summary of a document made available by a court anywhere in the world, etc.

In England and Wales, the Defamation Act 2013 provides for the expansion of the defence of

qualified privilege by introducing a new defence of peer-reviewed statements in scientific or

academic journals (section 6). In order for such a defence to apply the statement must (i) relate

to a scientific or academic matter; and (ii) have been subject to an independent review in

relation to its scientific or academic merit before it was published. (This review must have

been carried out by the editor of the journal and at least one person with expertise in the

scientific or academic matter concerned.) Any assessments made by the reviewers are also

privileged provided that such assessments are published in the same journal and were written

in the course of the review, as are fair and accurate copies, extracts from or summaries of such

statements. A publication is not privileged if it is shown that it was made with malice. The

2013 Act also inserts a new paragraph 14A into schedule 1 of the 1996 Act to extend qualified

privilege to a fair and accurate (i) report of proceedings of a scientific or academic conference

held anywhere in the world, or (ii) copy or, extract from or summary of matter published by

such a conference.

In Scotland, the Defamation and Malicious Publications (Scotland) Act 2021 (section 11 and

the Schedule) re-enact section 15 and schedule 1 of the Defamation Act 1996 (as amended); it

extends the territorial scope of the defence of qualified privilege to bring Scottish law into line

with the law in England and Wales. It also provides for a defence, similar to section 6 of the

2013 Act, in respect of publication in a scientific or academic journal of a statement relating to

a scientific or academic matter (section 10).

In Northern Ireland, the Report on Reform of Defamation Law in Northern Ireland214F

215

recommends the introduction of provisions equivalent to sections 6 and 7 of the 2013 Act.

However, while recommending the introduction of a defence similar to section 6, the Report

notes that the Northern Ireland Law Commission Consultation Paper on Defamation Law in

Northern Ireland215F

216

pointed to a number of difficulties with this provision. In particular, the

Consultation Paper points out that there is a measure of uncertainty created by the language

used in section 6 as “scientific or academic matter” or “expertise” are not defined. It also

indicated that the defence “may not allow for an appropriate balance to be struck between the

rights and interests protected under Article 8 ECHR and Article 10 ECHR” as only proof of

malice can defeat the privilege. Moreover, it suggests that section 6 can be criticised as “having

done both too little and too much”. It points out that it can be argued that it does too little as

the privilege applies only to peer reviewed publications that meet specified conditions; it is not

213

This provision extends to Scotland and Northern Ireland (as well as England and Wales.)

214

Where the report of proceedings in public is contemporaneous, absolute privilege applies (section 14 of the

Defamation Act 1996 (as amended by section 7 of the Defamation Act 2013)).

215

Report on Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance.

216

NILC 19 (2014)

a general protection for academic speech such as statements made at conferences, in

newspapers or in broadcasts. On the other hand it points out that it can be argued that it goes

too far in that it is “by no means obvious why scientific speech should be considered worthy

of greater protection than is accorded to other forms of important speech on matters of public

interest”. It suggests that the defence may be little more than a “sticking plaster approach” to

overcome the difficulties of availing of the primary defamation defences namely honest

comment/honest opinion or justification. Despite these concerns it recommended the

introduction of a defence similar to section 6.

In Australia, the Model Defamation Provisions (section 30) provides for the defence of

qualified privilege where the defendant proves that (i) the recipient had an interest or an

apparent interest in having the information; (ii) the matter was published to the recipient in the

course of giving the recipient information on that subject matter; and (iii) the conduct of the

defendant is reasonable in publishing the information. The provision lists a number of factors,

based on the Reynolds decision (see below), that the court may take into account in determining

whether the conduct of the defendant was reasonable. The defence can be defeated, for

example, if the plaintiff proves that publication was motivated by malice. The Background

Paper on the Model Defamation Amendment Provisions 2020216F

217

notes that this defence has not

been successfully pleaded by a media defendant since the introduction of the Model

Defamation Provisions. The Model Defamation Amendment Provisions 2020 provide for the

introduction of a new public interest defence (see below under Fair and Reasonable Publication

on Matter of Public Interest); some technical amendments have also been made to the original

section 30.

The Model Defamation Provisions also provide that it is a defence to the publication of

defamatory matter if the defendant proves that the matter was contained in a public document

(including a fair copy, summary or extract of/from such a document) (section28). This defence

applies to public documents of any country. Section 29 provides that it is a defence to the

publication of defamatory matter if the defendant proves that the matter was, or was contained

in, a fair report of proceedings of public concern. Proceedings of public concern include, for

example, any proceedings in public of a parliamentary body, any proceedings in public of a

court or arbitral tribunal of any country, any proceedings in public of any inquiry held under

the law of any country or under the authority of the government of any country, etc.

The Model Defamation Amendment Provisions 2020 provide for a new defence in respect of

scientific and academic peer reviews similar to section 6 of the England and Wales Defamation

Act 2013.

In New Zealand, the defence of qualified privilege, subject to explanation or contradiction,

applies to inter alia a fair and accurate report of proceedings of a court outside New Zealand

or of the results of those proceedings.217F

218

3.3.4 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

217

Background paper, Model Defamation Amendment Provisions 2020 (Consultation Draft), December 2019, at

p.20, https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-

provisions/defamation-final-background-paper.pdf

218

Defamation Act 1992, section 18 and Part 2 of Schedule 1.

 extend the territorial scope of qualified privilege under paragraphs 11 and 12 of Part 1 of

Schedule 1 and paragraphs 1, 2, 3 and 4 of Part 2 of Schedule 1, to protect fair and

accurate reports of press releases and other documents published by courts, Government

Departments, local authorities, and police commissioners, of certain countries other than

Ireland, other EU Member States and the United Kingdom; and of proceedings of an

association, a public meeting, a company general meeting or a meeting of a local

authority or an equivalent body to the Health Service Executive, in certain countries other

than Ireland, other EU Member States and the United Kingdom;

 extend qualified privilege to cover court reports that fall below the “fair and accurate”

standard;

 provide for a defence of peer-reviewed statement in scientific or academic journals;

 specify that qualified privilege applies to responses to public consultations;

 amend paragraph 1 of Part 2 of Schedule 1 to clarify that it applies to associations

(whether incorporated or not) established in the State, a Member State or the UK (or in

certain countries to which the territorial scope is extended under the recommendation

made above).

Option 1: Remove the territorial restrictions on the scope of the defence

Arguments in favour

 Limiting the territorial scope of qualified privilege as set out in paragraphs 11 and 12 of

Part 1 of Schedule 1 and paragraphs 1, 2, 3 and 4 of Part 2 of Schedule 1218F

219

seems to

make little sense in the internet age.

 Removing the territorial scope of the provision would bring the law into line with other

common law jurisdictions.

Arguments against

 Extension of the territorial scope of qualified privilege in this way may add to the

complexity of the law.

Option 2: Extend qualified privilege to cover court reports that fall below the “fair and

accurate” standard

The Law Reform Commission, in its Report on Privilege for Reports of Court Proceedings

under the Defamation Act 2009,219F

220

considered whether a new qualified privilege defence

should be introduced.

It listed arguments in favour and against such a proposal as follows:

Arguments in favour

 The potential chilling effect on the media under the current system in accordance with

which inaccuracies can expose the publisher of a report of court proceedings to liability

for defamation.

 Other challenges facing the media e.g. for many media organisations, particularly local

media, court reporting is becoming increasingly unviable. The risk of being sued for

219

See footnote 27 which sets out these provisions.

220

LRC 121-2009.

defamation in the event of an honest mistake occurring are very high from a financial

perspective, even if the defendant would be likely to succeed at trial.

Arguments against

 The risk of decline in the quality and standards of court reports as such a defence could

(i) lead to a decline in standards of court reporting; (ii) significantly increase the risk of

increased dissemination of incorrect information to the public about the administration

of justice; (iii) leave individuals who are the subject of inaccurate and unfair reporting

without an effective remedy to protect their reputations; (iv) reduce the incentive for

publishers to rectify mistakes (the current system under section 17 of the Act acts as an

incentive to promptly correct mistakes); (v) reduce the burden to ensure that reports are

fair and accurate.

 Such a defence would result in a failure to provide for an appropriate balance between

competing constitutional rights i.e. the right to a good name and the right to freedom of

expression. It would constitute a disproportionate restriction on the right to a good name

under Article 40.3.2° of the Constitution. The current law, which requires accuracy in

court reporting, constitutes an appropriate balance between the competing rights

engaged.

 The offer of amends procedure facilitates a cost-limiting process for the resolution of

cases where a mistake is made.

The Law Reform Commission concluded that the arguments against the introduction of a new

qualified privilege defence for court reports that fall below the “fair and accurate” standard are

compelling. It therefore recommended that such a defence should not be introduced.

Option 3: Provide for a new defence of peer-reviewed statement in scientific or academic

journals

Arguments in favour

 Scientific and academic speech is important and merits protection.

 It would bring Irish law in line with the law in the England and Wales, Scotland and

Australia.

Arguments against

 It is not clear why such statements should receive special protection.

 There are already sufficient defences available under the 2009 Act, in particular the

defence of honest opinion.

 The privilege would only apply to publications in academic journals; it would not apply

to publications at conferences,220F

221

in newspapers, etc.

221

There is already some protection for statements made at international conferences under paragraph 9 of Part

1 of Schedule 1 which provides qualified privilege in respect of “[a] fair and accurate report of any proceedings

in public of any international conference to which the Government sends a representative or observer or at

which governments of states (other than the State) are represented.”

Option 4: Specify that qualified privilege applies to responses to public consultations

Arguments in favour

 It would ensure that individuals making submissions to public consultations are protected

by qualified privilege.

Arguments against

 The Act, in particular section 18(2),221F

222

already provides a sufficient defence.

 There is a danger that a person who is defamed in a response to a public consultation

would be left without a means of redress.

 There is a danger that this defence could be abused.

Option 5: Amend paragraph 1 of Part 2 of Schedule 1 to clarify that it applies to associations

(whether incorporated or not) established in the State, a Member State or the UK

Arguments in favour

 The law should be clear.

Arguments against

 There are no obvious arguments against this proposal

Recommendations

The following options are recommended:

 Option 1: Extend the territorial scope of qualified privilege under paragraphs 11 and 12

of Part 1 of Schedule 1 and paragraphs 1, 2, 3 and 4 of Part 2 of Schedule 1, to protect

fair and accurate reports of press releases and other documents published by courts,

Government Departments, local authorities, and police commissioners, of certain

countries other than Ireland, other EU Member States and the United Kingdom; and of

proceedings of an association, a public meeting, a company general meeting or a meeting

of a local authority or an equivalent body to the Health Service Executive, in certain

countries other than Ireland, other EU Member States and the United Kingdom; and

 Option 5: Amend paragraph 1 of Part 2 of Schedule 1 to clarify that it applies to

associations (whether incorporated or not) established in the State, a Member State or the

222

Section 18(2) provides:

Without prejudice to the generality of subsection (1), it shall, subject to section 19, be a defence to defamation

action for the defendant to prove that –

(a) the statement was published to a person or persons who –

(i) had a duty to receive, or interest in receiving, the information contained in the statement, or

(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or

interest, and

(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information

to such person or persons.

UK (or in certain countries to which the territorial scope is extended under the option

above).

The following options are not recommended:

 Option 2: Extend qualified privilege to cover court reports that fall below the “fair and

accurate” standard;

 Option 3: Provide for a new defence of peer-reviewed statement in scientific or academic

journals; and

 Option 4: Specify that qualified privilege applies to responses to public consultations.

3.4 Honest Opinion

3.4.1 Current legal position

Section 20 of the Act provides for the defence of honest opinion. In broad terms, it is available

where a defendant can show that -

(i) the words were opinion and not fact; and

(ii) the opinion was honestly held.

An opinion is honestly held if:

(i) the defendant, at the time of publication, believed in the truth of the opinion or, if the

defendant was not the author of the opinion, believed that the author believed it to be

true;

(ii) the opinion was based on allegations of fact (a) specified in the statement containing

the opinion; (b) referred to in the statement, that were known or might reasonably be

expected to have been known by the person to whom the statement was published; or

(iii) the opinion was on a matter of public interest.222F

223

Where an opinion is based on allegations of facts (i) specified in the statement, or (ii) referred

to in the statement, that were known or might reasonably be expected to have been known, by

the person to whom the statement was published, the defence of honest opinion will fail unless

either (a) the defendant proves the truth of the allegations, or (b) where the defendant does not

prove the truth of all the allegations, the opinion is honestly held based on the allegations of

fact which have been proved to be true.

223

Section 20(2) provides:

Subject to subsection (3), an opinion is honestly held, for the purposes of this section, if –

(a) at the time of the publication of the statement, 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,

(b) (i) the opinion was based on allegations of fact –

(I) specified in the statement containing the opinion, or

(II) referred to in that statement, that were known, or might reasonably be expected to be known,

by the persons to whom the statement was published,

(ii) the opinion was based on allegations of fact to which –

(I) the defence of absolute privilege, or

(II) the defence of qualified privilege,

would apply if a defamation action were brought in respect of such allegations,

and

Where an opinion is based on allegations of fact to which the defence of absolute or qualified

privilege would apply, the defence will fail unless (i) the defendant proves the truth of the

allegations, or (ii) where the defendant does not prove the truth of the allegations, (a) the

opinion could not reasonably be understood as implying that those allegations were true, and

(b) at the time of the publication of the opinion, the defendant did not know or could not

reasonably have been expected to know that those allegations were untrue.

Section 21 sets out a mandatory, but non-exhaustive, list of factors to which a court must have

regard for the purposes of determining whether a statement was one of opinion or fact as

follows:

(a) the extent to which the statement is capable of being proved;

(b) the extent to which the statement was made in circumstances in which it was likely to

have been reasonably understood as a statement of opinion rather than a statement

consisting of an allegation of fact; and

qualification or disclaimer or was accompanied by cautionary words.

The statutory defence of honest opinion reformed and replaced a similar defence called “fair

comment" that had developed under common law223F

224

(however, much of the case-law developed

in relation to “fair comment” is still relevant to the defence of “honest opinion”.)

This defence essentially seeks to protect the right to freedom of expression, by allowing for

free expression and exchange of honestly held opinions on matters of public interest, subject

to the conditions set out above. It is “relevant to critiques and reviews of matters of public

interest and other matters held out for public scrutiny – for example, reviews of films, plays,

books or restaurants, as well as the discussion of political, social and economic affairs.”224F

225

3.4.2 Main issues raised in course of review

Submissions to the review recommended that the requirement to prove that the opinion was

honestly held should be removed; that the legislation should be amended to revert to the pre-

2009 position where good faith on the part of the publisher is presumed, and it is a matter for

the plaintiff to prove otherwise; that the provision should be amended along the lines of the fair

comment defence in section 23 of the 1961 Act.225F

226

In a submission to the review following the

Symposium, it was indicated that while a belief in the underlying facts relating to the opinion

may need to be proven, the truth of an opinion itself cannot be proven and therefore should not

be required.226F

227

The following arguments were put forward in favour of these recommendations:

 in comparison with fair comment (the common law defence that section 20 replaces), the

burden of proof has shifted and the person relying on the defence must prove that he/she

honestly held the opinion or believed that it was honestly held by the person who

224

The name of ‘fair comment’ for the former common law defence has been criticised as somewhat misleading

- since the defence then, as now, depended on the honesty, rather than the fairness, of the opinion expressed.

225

Martin, Media Law Ireland, 2011, p. 68.

226

Business Journalists Association, Dublin City University Socio-Legal Research Centre, McCann Fitzgerald,

NewsBrands, NUJ, RTE.

227

ICCL.

expressed the opinion; this makes the defence problematic, particularly in the context of

live broadcasts, letters to the editor, reports on opinions of politicians, etc.;

 it requires the proving of a subjective opinion;

 an opinion is not susceptible to factual assertion as “true” or “untrue”;

 the defence is oblique and over complicated, especially for juries;

227F

228

 a reworded provision would give effect to the intent behind the section, to allow latitude

for opinion honestly expressed and enhance freedom of expression.

It was also suggested that section 20(2)(b) should be amended to revert to the common law

position.228F

229

The following arguments were put forward in favour of this recommendation:

 under the common law defence of fair comment, the opinion merely had to be based on

assessable relevant facts to be proven at trial;

 the requirement that facts not referred to in the statement complained of be known, or

might reasonably be expected to be known, by those to whom the statement was

published should have no place in laws affecting modern media e.g. the question was

posed as to whether the defence must fail because the potentially millions of readers of a

publication, including those outside Ireland, might not reasonably be expected to know

the factual basis for otherwise honestly held views.

Moreover, it was suggested that the requirement that the opinion must relate to a matter of

public interest should be removed.

229F

230

Justifications put forward for this suggestion include that

there is no need for this requirement given that there is a public interest defence elsewhere in

the Act; this requirement is moot given the protection afforded by the Constitution and Article

8 of the ECHR to a person’s privacy; the inclusion of the public interest requirement fails to

strike the right balance between private reputations and freedom of expression.

Another contributor to the review suggested that the section should be amended to bring it in

line at least with section 3 of the England and Wales Defamation Act 2013, if not with the

proposals in the Northern Ireland report on reform of defamation law; it should be possible to

rely not only on true underpinning facts or privileged statements as the basis for an opinion but

228

Commentators have raised a question as to whether certain elements of the statutory defence of honest opinion

fall to be decided by the judge or by the jury, if the case is tried in the High Court. Maher notes that section 3(2)

of the Act provides that the Act “shall not affect the operation of the general law in relation to defamation except

to the extent that it provides otherwise (either expressly or by necessity)” and on that basis he states that “the

statute’s silence on who decides the public interest point would suggest that the common law position prevails,

and that in a jury trial, the question of whether a matter is one of public interest or not remains a question for the

judge”. (Maher J., The Law of Defamation, 2

edn, at p.181). Cox and McCullough take a similar view i.e. they

presume that the common law approach will continue to be taken (Cox, N. and McCullough, E., Defamation Law

and Practice (2014) at para. 6-12). However, in the first jury trial involving the honest opinion defence under the

Act, the judge permitted the question to go to the jury on the basis that it was something the defendant was required

to prove and had been a matter at issue in the case. (“O’Brien wins €150,000 in damages in Mail case”, The Irish

Times, 15 February 2013; see Maher at p. 181, footnote 82).

229

NewsBrands.

230

Eoin O’Dell, H. O’Driscoll, NewsBrands, RTE.

also on facts that the publisher reasonably believed to be true at the time the opinion was

published and the defence should extend to cover inferences of fact.230F

231

Finally, in a submission to the review following the Symposium, it was suggested that this

defence does not appear to conform to Article 10 ECHR and should be amended to remove the

requirement that the defendant prove the truth of the opinion.231F

232

3.4.3 Comparative Perspectives

In England and Wales, the Defamation Act 2013 (section 3), provides for the defence of

honest opinion. In broad terms it is available where the statement complained of (i) is a

statement of opinion; (ii) the statement indicated, whether in general or specific terms, the basis

of the opinion; (iii) an honest person could have held the opinion on the basis of any fact which

existed at the time the statement complained of was published, or on the basis of anything

asserted to be a fact in a privileged statement232F

233

published before the statement complained of.

The defence is defeated if the plaintiff shows that (i) the defendant did not hold the opinion or,

(ii) where the statement was published by the defendant but made by another person, the

defendant knew, or ought to have known, that the author did not hold the opinion. The section

made a number of important changes to the common law defence of fair comment, which it

replaced, specifically: (i) it does not limit the defence to opinions on matters of public interest;

(ii) it expands the types of privileged statement on which an honest opinion can be based; and

(iii) it allows a defendant to rely on any fact that existed at the time of publication, whether or

not known to the defendant.233F

234

In Scotland, the Defamation and Malicious Publications (Scotland) Act 2021 (section 7)

provides for the defence of honest opinion. The defence applies where (i) the statement

complained of was a statement of opinion; (ii) the statement indicated, either in general or

specific terms, the evidence on which the opinion was based; (iii) an honest person could have

held the opinion conveyed by the statement on the basis of any part of that evidence. Evidence

means: (a) any fact which existed at the time the statement was published, (b) anything asserted

to be a fact in a privileged statement made available before, or on the same occasion as, the

statement complained of, or (c) anything that the defendant reasonably believed to be a fact at

the time the statement was published. A statement is a privileged statement if the person

responsible for its publication would have one or more of the following defences under the

relevant sections of the Act: (a) the defence of publication on a matter of public interest, (b)

the defence of absolute privilege or (c) the defence of qualified privilege.

A statement of opinion includes a statement which draws an inference of fact. There is no

requirement for the opinion to be on a matter of public interest. The defence fails if the plaintiff

shows that (i) the defendant did not genuinely hold the opinion conveyed by the statement, or

(ii) where the statement was published by the defendant but made by another person the

defendant knew, or ought to have known, that the author of the statement did not genuinely

231

Eoin O’Dell.

232

ICCL.

233

A statement is a “privileged statement” if the person responsible for its publication would have one or more

of the following defences if an action for defamation were brought in respect of it: publication on matter of

public interest (section 4 of 2013 Act), peer-reviewed statement in scientific or academic journal (section 6 of

2013 Act), reports of court proceedings protected by absolute privilege (section 14 of the 1996 Act), reports

protected by qualified privilege (section 6 of 2013 Act).

234

Northern Ireland Law Commission, Consultation Paper, Defamation Law in Northern Ireland (NILC 19

(2014)) at pp. 39-48.

hold the opinion. The Policy Memorandum on the Bill (as initiated) explains that the technical

complexity of applying the common law defence of fair comment (which section 7 replaces)

means that it is less effective and less frequently invoked than it might otherwise be in

protecting freedom of expression. The Bill therefore provides for the reform of the common

law.

In Northern Ireland, the report on the Reform of Defamation Law in Northern Ireland,

proposes the introduction of an “augmented version of section 3” of the England and Wales

Defamation Act. The proposed honest opinion defence would apply where a statement is (i) a

statement of opinion; (ii) indicates, in general or specific terms, the basis of the opinion; (iii)

an honest person could have held the opinion based on (a) any fact which existed at the time

the statement was published, (b) anything asserted to be a fact in a privileged statement

published before or at the same time as the statement complained of, (c) any fact that the

defendant reasonably believed to be true at the time the statement complained of was published.

A statement of opinion can include an inference of fact. The defence would be defeated if the

claimant shows that the defendant did not hold the opinion, or where the statement was made

by another person, the defendant knew or ought to have known, that the author did not hold the

opinion.234F

235

The proposed defence is not limited to opinions on matters of public interest.

In Australia, the Model Defamation Provisions (section 31) provide for a defence of honest

opinion where (i) the matter is an expression of opinion; (ii) the opinion relates to a matter of

public interest; and (iii) the opinion is based on “proper material” i.e. material that is

substantially true, was published on an occasion of absolute or qualified privilege, or was

published on an occasion that attracted the defence of publication of public documents or fair

report of proceedings of public concern. While it is not specifically set out in the Model

Provisions, it is a requirement that the opinion sets out the material on which it is based. The

defence is defeated if the plaintiff proves that the opinion was not honestly held by the

defendant, or the defendant did not believe that it was honestly held by the author (where the

author was an employee or agent), or the defendant had reasonable grounds to believe that it

was not honestly held by the author (where the author was not an employee or agent) at the

time the matter was published.

The Model Defamation Amendment Provisions 2020 amends section 31 to provide that an

opinion is based on “proper material” if (a) the material on which it is based is (i) set out in

the publication in specific or general terms, (ii) notorious, (iii) accessible from a reference, link

or other access point included in the matter (for example, a hyperlink on a webpage), or (iv)

otherwise apparent from the context in which the matter is published; and (b) the material is (i)

substantially true, (ii) published on an occasion of absolute or qualified privilege, or (iii) was

published on an occasion that attracted the protection of the defence of publication of public

documents or fair report of proceedings of public concern.

In New Zealand, the Defamation Act 1992 (sections 9 – 12) provides for the defence of honest

opinion. The defendant must prove that the opinion was (i) his/her genuine opinion; (ii) in the

case of an employee or agent of the defendant, the defendant believed that it was the genuine

opinion of the author; or (iii) in other cases, the defendant had no reasonable cause to believe

that the opinion was not the genuine opinion of the author. The defence is not defeated by

malice. Where a matter consists partly of statements of fact and partly of opinion, the defence

235

Section 3 of the Draft Defamation (Northern Ireland) Bill at Appendix 1 of the report on Reform of

Defamation Law in Northern Ireland.

will not fail merely because the defendant does not prove the truth of every statement of fact if

the opinion is shown to be genuine opinion having regard to (a) the facts (being facts that are

alleged or referred to in the publication containing the matter that is the subject of the

proceedings) that are proved to be true, or not materially different from the truth; or (b) any

other facts that were generally known at the time of the publication and are proved to be true.

In Ontario, the common law defence of fair comment is supplemented by statute (sections 23

and 24 of the Libel and Slander Act). In order for the defence to succeed the defendant must

prove that the comment (i) is on a matter of public interest; (ii) is based on fact; (iii) is

recognisable as comment; and (iv) meets the objective test – could any person honestly express

the opinion on the proven facts. There must be some nexus between proven facts and the

opinion. The defence does not require substantial proof of the facts. The defence is defeated by

malice. The Libel and Slander Act (section 23) provides that a statement of mixed fact and

opinion may be fair comment even where not every fact is proven to be true as long as the

opinion is fair comment having regard to the facts that have been proved. The Act (section 24)

also provides that a defendant may rely on the defence of fair comment in relation to an opinion

held by another person even where neither of them held the opinion as long as a person could

honestly hold the opinion. In a 2008 case (WIC Radio v Simpson235F

236

), the Canadian Supreme

Court held that the honest belief criteria need not refer to the subjective belief of the speaker.

The Law Commission of Ontario, in its report on Defamation Law in the Internet Age,

recommends the replacement of the current law with a new defence of opinion where the

defendant proves that the defamatory publication is on a matter of public interest, is based on

fact and is recognisable as opinion. This recommendation has the effect of removing the

objective requirement of honest belief. The Commission’s rationale for this proposal is that the

requirement is superfluous and that its removal would provide better protection for online

reviews and other forms of commentary which are in the public interest, based on fact, and

made without malice. Moreover, the Commission states that removal of this requirement would

not substantially broaden the defence.236F

237

3.4.4 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 remove the requirement on the defendant to prove that the opinion was believed to be

true;

 remove the requirement that facts referred to in the statement be known, or might

reasonably be expected to be known, by the persons to whom the statement was

published;

 remove the requirement that the statement must relate to a matter of public interest;

 provide for an honest opinion defence along the lines of section 3 of the England and

Wales Defamation Act 2013;

 provide for an honest opinion defence along the lines proposed in the report on the

Reform of Defamation Law in Northern Ireland.

236

[2008] 2 SCR 420.

237

Defamation Law in the Internet Age, Law Commission of Ontario, Final Report, March 2020, at pp.. 29-31.

Option 1: Remove the requirement on the defendant to prove that the opinion was believed

to be true

Arguments in favour

 The opinion will still have to be “honestly held”, so it will be open to the plaintiff to

argue that an opinion was not honestly held by the defendant.237F

238

 It is contradictory to require a person to believe an opinion to be “true” – the essence of

an opinion is that it is subjective, and is not susceptible to objective proof. Where the

defendant is not the author of the opinion (e.g. where comments are made by guests on

live radio or television or in “letters to the editor”), it is particularly problematic for the

defendant to prove that the opinion was honestly held. (See defence of innocent

publication).

 While an opinion is not something that can be proven to be true or false, “it was always

the case at common law that there had to be some kind of belief on the part of the

publisher in the truth of the comment or opinion at issue, because, in the absence of such

belief, it was assumed that the publisher acted with malice”.238F

239

At common law it was

for the plaintiff to prove malice (i.e. lack of honest belief in the opinion/comment)

whereas under section 20 it is for the defendant to prove that the opinion was honestly

held.

239F

240

Removing the requirement on the defendant to prove the truth of the opinion and placing

the burden of proving malice on the plaintiff would revert to the common law position.

 Such a requirement risks contravening the ECHR right to freedom of expression: the

ECtHR has explicitly held that it is contrary to the right to freedom of expression to

require a person to prove the truth of their opinion.240F

241

Arguments against

 The current provision is based on a recommendation in the Law Reform Commission

Report on the Civil Law of Defamation which recommended the replacement of the

238

In Cullen v Sheehy and Wicklow County Council [2017] IEHC 459, the High Court held that a press release

was defamatory, and did not meet the requirements of the ‘honest opinion’ defence. The court found that the press

release did not express an ‘honestly held’ opinion, as it inaccurately presented some of the findings of a report of

an independent review of the compulsory purchase of a piece of land by Wicklow County Council and made

claims about a number of county councillors when the report had not made any such findings.

239

Cox N. and McCullough E., Defamation Law and Practice at para. 6-50.

240

Ibid at para. 6-52 (based on Gatley at 12.36 et seq,)

241

“Starting in its seminal Lingens v Austria judgment, the Court has distinguished between facts and opinions,

holding that the requirement that the defendant prove the truth of an allegedly defamatory opinion infringes

his/her right to impart ideas, as well as the public’s right to receive ideas, under Article 10 of the Convention.

The Court held that: ‘ … careful distinction needs to be made between facts and value-judgments. The existence

of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof …. As regards

value-judgments, this requirement to prove truth is impossible of fulfilment and it infringes freedom of opinion

itself.’ (Lingens v Austria, para 46).”; McGonagle and others, Freedom of expression and defamation, Council of

Europe (2016), p.27.

common law defence of fair comment with a defence of comment based on fact241F

242

. The

rationale for the proposal was that there should be some inhibition on the expression of

comments which are both defamatory and malicious and that this would best be achieved

by adopting the criterion of whether the opinion was the genuine opinion of the author.

The Commission concluded that the burden of proving that the opinion was genuinely

held should be on the defendant on the basis that a defendant who pleads comment should

be prepared to testify as to his/her honest belief, and that it is preferable that a statutory

provision should be drafted in a positive rather than a negative form.

Option 2: Remove the requirement that facts referred to in the statement be known, or might

reasonably be expected to be known, by the persons to whom the statement was published

Arguments in favour

 At common law, it was sufficient if the factual information on which the opinion was

based was so obvious and accessible to the recipient of the publication that it did not need

to be stated, usually (but not only) where the opinion clearly pointed to the external facts

on which it claimed to be based or where it referred to events that were so well known

that a recipient of a statement could reasonably be expected to be aware of them.

242F

243

This

common law rule may be retained in section 20(2)(b)(i)(II) of the Act. However, the

statutory rule may (depending on how it is interpreted) be less favourable to publishers

than the common law. In the case of well-known facts the Act requires that they be

referred to in the statement. That requirement did not apply at common law. On the other

hand, in the case of a very prominent news story it may be that any opinion in such

context would of necessity refer by implication to the factual story on which it was based

so it is a matter of interpretation for the courts as to whether this is sufficient to satisfy

section 20(2)(b)(i)(II).243F

244

 Where an opinion reaches a mass audience, it is unrealistic to expect that everyone

hearing the opinion will be aware of the facts on which it is based.244F

245

 The current provision is overly complex.

Arguments against

 It can be argued that in the internet age, the need to provide a reader with some

understanding of the factual basis for a comment is particularly important in light of the

amount of commentary to be found online, often on matters on which the reader knows

very little.245F

246

 An opinion has the potential to damage a person in the estimation of the community.

Where an opinion is based on fact, the person to whom the opinion is published can

separate the opinion from the facts on which it is based and form his/her own view as to

whether or not he/she agrees with the opinion. On the other hand, the expression of an

242

Report on the Civil Law of Defamation (December 1991) at para. 6.12.

243

Cox N. and McCullough E., Defamation Law and Practice at para. 6-35.

244

Cox N. and McCullough E., Defamation Law and Practice at paras. 6-35 and 6-36.

245

McMahon B and Binchy W, Law of Torts, Bloomsbury Professional, 4

edn. at paras. 34.288.

246

Maher, J., The Law of Defamation (2

edn.) at p. 192.

opinion without any factual basis will conjure up in the mind of the person to whom the

opinion is published the possibility that the person about whom the opinion is expressed

has been involved in something which warrants the opinion which may lower him/her in

the eyes of the community.246F

247

 The requirement that the opinion must be based on facts set out in the statement

containing the opinion, or facts referred to in the statement, that were known, or might

reasonably be expected to be known, by the persons to whom the statement was published

means that the possibility of reasonable readers/listeners being misled by the opinion

does not arise to the same extent.

Option 3: Remove the requirement that the statement must relate to a matter of public

interest

Arguments in favour

 The requirement that the opinion must be on a matter of public interest is not necessary

given the protection afforded by the Constitution and Article 8 ECHR to a person’s

privacy.

 Section 26 of the Act already provides a defence of fair and reasonable publication on a

matter of public interest. In order for the honest opinion defence to have added value, the

public interest requirement should be removed.

 The requirement that a statement of opinion must be on a matter of public interest no

longer applies in England and Wales or Scotland. Gatley on Libel and Slander states:

“Fundamentally, the basis of excluding liability in respect of opinions is their

recognisability as individual viewpoints only. Whether those viewpoints relate to matters

of public interest is arguably neither here nor there.”247F

248

Arguments against

 The “public interest” test is fundamental to the defence; it provides protection for the free

expression of honest opinions on matters on which the public has a legitimate interest or

with which it is legitimately concerned. “The foundation of of the defence is a concern to

ensure freedom of expression in relation to what are regarded as important public

issues.”248F

249

 Matters that are deemed to be in the public interest are quite broad, so including this

requirement doesn’t unnecessarily restrict the scope of the defence.

 The maintenance of this requirement protects matters which would normally be deemed

to be part of an individual’s private life.

 This option raises potential legal difficulties: would such a change strike an appropriate

balance between the rights to freedom of expression and to good name/privacy, absent

247

McMahon B and Binchy W, Law of Torts, Bloomsbury Professional, 4

edn., at para. 34.269.

248

Gatley on Libel and Slander, 12

edn, at para. 12.35.

249

Maher, J., The Law of Defamation, (2018), para. 6.01

the justification provided by the “public interest” requirement? In the case-law of the

ECtHR, the defence of honest opinion “ ..will generally relate only to comment on

matters of public interest and not private matters. Comment on matters of private or

family life may fall outside the scope of [the] defence and may even engage the Article 8

right to privacy [under the Convention] … .”249F

250

 It has been argued that the public interest test is no longer necessary because of the

availability of the “fair and reasonable publication” defence. However, the two defences

are different. The defence of honest opinion is available to anyone and while the “fair

and reasonable publication” defence is not limited to journalism, it was developed for,

and is best suited to, that context (the central concept of the defence is that publication

might be protected where it is the product of “responsible journalism”).

 Fair and reasonable publication is oriented to, and best suited to, public interest

investigative journalism; it’s therefore oriented to facts and interpretation rather than to

opinions (it focuses typically on whether a publication may be protected where it

contains errors of fact or interpretation despite responsible journalism, or where the

journalist cannot prove truth because they cannot reveal their sources).

 Fair and reasonable publication is a relatively new defence, which is still developing in

common law jurisdictions: it seems premature, at this early stage, to abolish older

defences in reliance on it.

Option 4: Provide for an honest opinion defence along the lines of section 3 of the England

and Wales Defamation Act 2013

Arguments in favour

 It provides greater protection for honest opinion, in particular it is not restricted to matters

of public interest and the burden of proving that the opinion was not honestly held is on

the plaintiff.

Arguments against

 The 2013 Act does not achieve its stated aim of making the defence more simple and

user-friendly and requires legal interpretation.250F

251

For example, the Explanatory Notes on

the Act state that as “an inference of fact is a form of opinion, this would be encompassed

by the defence”251F

252

whereas Gatley on Libel and Slander are of the view that this is an

arguable point.252F

253

 A high degree of legal technicality has grown around the various components of section

3.253F

254

250

McGonagle & others, Freedom of expression and defamation, Council of Europe (2016), p. 45.

251

Northern Ireland Law Commission Consultation Paper: Defamation Law in Northern Ireland – NILC 19

(2014) at p. 46.

252

Defamation Act 2013, Explanatory Notes at para. 21, https://www.legislation.gov.uk/ukpga/2013/26/notes

253

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, Dr

Andrew Scott, June 2016 based on Gatley on Libel and Slander, 12

edn. at para 12.14.

254

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, Dr

Andrew Scott, June 2016 at para. 2.20.

Option 5: Provide for an honest opinion defence along the lines proposed in the report on

the Reform of Defamation Law in Northern Ireland

Arguments in favour

 The proposed defence addresses a number of perceived weaknesses in the defence of

honest opinion set out in section 3 of the England and Wales Defamation Act 2013 e.g.

it proposes to extend the scope of the defence to opinion based on facts that the defendant

reasonably believed to be true at the time of publication of the opinion;254F

255

this would do

much to alleviate the predicament of social media commentators who commonly rely on

facts published by someone else.

 This is the approach adopted in section 7 of the Defamation and Malicious Publications

(Scotland) Act 2021.

Arguments against

 Extending the defence to opinions based on facts that the defendant reasonably believed

to be true at the time of publication may fail to adequately protect an individual’s

reputation.

Recommendations

The following option is recommended:

 Option 1: Remove the requirement on the defendant to prove that the opinion was

believed to be true.

The following options are not recommended:

 Option 2: Remove the requirement that facts referred to in the statement be known, or

might reasonably be expected to be known, by the persons to whom the statement was

published;

 Option 3: Remove the requirement that the statement must relate to a matter of public

interest;

 Option 4: Provide for an honest opinion defence along the lines of section 3 of the

England and Wales Defamation Act 2013; and

 Option 5: Provide for an honest opinion defence along the lines proposed in the report

on the Reform of Defamation Law in Northern Ireland.

3.5 Offer to make amends

3.5.1 Current Legal Position

Sections 22 and 23 of the 2009 Act introduced a new statutory defence of an “offer to make

amends”255F

256

which is designed to facilitate early expeditious and more economic resolution of

defamation actions. Section 22 provides that a person who has published a statement that is

255

Ibid at para. 2.34

256

Section 21 of the Defamation Act 1961 had contained a defence called offer of amends, but it was limited to

cases of innocent and unintentional publication and did not include the possibility of paying damages to the

plaintiff; any award made by a court was limited to payment of costs and expenses. Section 21 was rarely used.

alleged to be defamatory of another person may make an offer to make amends i.e. an offer to

make a suitable correction or sufficient apology, to publish that correction or apology, and to

pay compensation or damages (if any), and such costs, as may be agreed by the parties or as

may be determined. Section 23(2) of the Act provides that it shall be a defence to a defamation

action for a defendant to prove that he/she made an offer to make amends and that it was not

accepted, unless the plaintiff proves that the defendant knew or ought reasonably to have

known that the statement referred to the plaintiff or was likely to be understood as referring to

the plaintiff, and was false and defamatory of him/her. If the defendant relies in his/her defence

on an offer to make amends, he/she cannot rely on any other defence. However, a defendant

who made an offer to make amends is not required to plead it as a defence in a defamation

action.

In accordance with section 23(1)(c), if the parties do not agree as to the damages or costs that

should be paid by the defendant, the High Court, or other court with jurisdiction, determines

the damages or costs, and in making that determining the Court must take into account the

adequacy of measures already taken to ensure compliance with the terms of the offer. The

approach of the courts is to assess the damages the defamation would normally warrant and

then to discount that sum in percentage terms having regard to the effectiveness of the

defendant’s action in mitigation.256F

257

An offer to make amends has resulted in damages being

reduced by 40% in Christie v. TV3257F

258

(the Court of Appeal stated that the discount would have

been higher if the apology issued by the defendant had been more complete and fulsome), 20%

in Ward & Anor v The Donegal Times Limited258F

259

(the High Court indicated that the late apology

by the defendants and the publication of further articles after making the offers of amends

qualified for a reduced level of mitigation) and 10% in Higgins v. The Irish Aviation

Authority259F

260

(the Court of Appeal indicated that the delay in making the offer of amends (almost

two years) and the high-handed approach to negotiations in refusing to meet the plaintiff for

discussions after he rejected the defendant’s offer of compensation meant that the jury’s

discount of 10% should not be interfered with).

It was believed by many commentators that the assessment of damages by the High Court

meant a judge sitting alone. However, in Higgins v. The Irish Aviation Authority and White v.

Sunday Newspapers Ltd260F

261

(which were heard together), the Supreme Court held that “the

court” as used in section 23(1)(c) means a jury. The Court went on to hold that the plaintiffs

were entitled to have the damages to which they are entitled assessed by a jury, subject, to

appropriate directions as to the discount to be provided to the defendants having regard to the

fact of the making of the offer of amends.

3.5.2 Main issues raised in course of review

Meaning of court in section 23(1)(c)

The vast majority of submissions to the review that commented on the offer of amends

procedure recommended that section 23 of the Act should be amended to provide that “court”

257

Ward & Anor v. The Donegal Times Limited [2016] IEHC 711; Christie v. TV3 Television Networks Limited

[2017] IECA 128.

258

[2017] IECA 128.

259

[2017] IECA 128.

260

[2020] IECA 277.

261

[2018] IESC 29 [2018] 3 IR 374.

100

means a judge sitting alone.261F

262

They indicated that the Higgins and White cases262F

263

essentially

undermine the effectiveness and attractiveness of the offer of amends procedure, particularly

for the defendant, and that it is doubtful whether defendants will as readily consider making an

offer of amends as they would previously have done. They pointed out that the clarification

that a plaintiff retains the right to a jury trial, leaves a defendant open to all the costs of a jury

trial. This point was re-iterated in a submission to the review following the Symposium.263F

264

Other proposals for amendments

A number of submissions264F

265

raised issues in relation to the interaction between the offer of

amends procedure under section 22 and the lodgement of money in settlement of the action

under section 29. Where an offer of amends has been made and accepted, but the parties do not

reach agreement as to the level of damages that should be paid, it appears that the defendant

loses the right to make a lodgement under section 29 of the 2009 Act. Section 29(1) of the Act

explicitly provides that a lodgement is made at the time of the filing of a defence. However, in

accordance with section 22(3) an offer to make amends cannot be made after the delivery of

the defence. The submissions have therefore recommended that section 29 should be amended,

to explicitly provide that a lodgement can be made by a defendant if an offer of amends is

accepted but the parties do not reach agreement as to the level of damages that should be paid

by the defendant.

Section 23(2) provides that it is a defence in a defamation action for a person to prove that

he/she made an offer of amends under section 22 and that it was not accepted, unless the

plaintiff proves that the defendant knew, or ought reasonable to have known, at the time of

publication that the statement at issue referred to the plaintiff, or was likely to be understood

as referring to the plaintiff, and it was false and defamatory of the plaintiff. Some submissions

suggested that the Act should provide that the plaintiff should have to prove that the defendant

acted recklessly to defeat the offer of amends as a defence.265F

266

They acknowledged that the

wording of section 23(2) is unclear, but stated that it could be interpreted as requiring only

proof of negligence and that a test of negligence is a low hurdle for a plaintiff to get over to

defeat the defendant’s defence under section 23. Moreover, they indicated that it seems

contrary to the spirit of the measure that there should be a test of negligence only: if that is the

test, it makes the procedure less attractive. Finally they indicated that a plaintiff is not

prejudiced by accepting an offer to make amends, irrespective of how the defamation arose, in

the absence of malice.

It was also suggested that the Act should provide expressly for a discount procedure.266F

267

In a

submission to the review following the Symposium it was suggested that there should be

express guidance by way of a practice direction as regards the measurement of the appropriate

discount to be applied.267F

268

262

The Bar Council of Ireland, William Fry, Irish Times, Law Society (anonymous solicitor(s)), Local Ireland,

McCann Fitzgerald, MGM Ltd, Oireachtas Committee on Justice and Equality, NUJ, News Brands, Ronan Daly

Jermyn, RTE.

263

Higgins v The Irish Aviation Authority White v Sunday Newspapers Ltd [2018] IESC 29 [2018] 3 IR 374.

264

McCann Fitzgerald.

265

Department of Communications, Climate Action and the Environment, MGM Ltd., RTE.

266

The Bar Council of Ireland, MGM Ltd., NewsBrands,

267

McCann Fitzgerald, MGM Ltd.

268

McCann Fitzgerald.

101

One submission suggested that section 23(1)(c) should be amended to allow for the

determination of damages by an alternative disputes resolution process without reference to the

court, or to provide for a stay pending ADR determination of any proceedings that had been

issued.

268F

269

3.5.3 Symposium on review of defamation law

In his presentation to the Symposium on Reform of Defamation Law, Professor Neville Cox

noted that the English model, on which the Irish offer of amends procedure was based, was

aimed at incentivising use of the procedure as an alternative to full-blown litigation.269F

270

Under

the English provision damages are determined by a judge sitting alone where they cannot be

agreed between the parties. Professor Cox pointed out that “the biggest incentive for a

defendant to make such an offer in many cases, will be so that it can avoid a situation where

the quantum of damages to be awarded is to be determined by a jury”270F

271

. He noted that as a

result of the Higgins judgment, “the defence of offer of amends is very considerably less

attractive than its English counterpart from a defendant’s perspective”271F

272

. On the other hand,

Professor Cox went on to say:

“It is not necessarily a bad thing that defendants should not have a mechanism available

to them that, in effect, coerces plaintiffs away from a full hearing of their cause of action,

but it does beg the question of why the defence was included in the statute if it was not

intended to be useful.”272F

273

3.5.4 Comparative Perspectives

It is widely acknowledged that the offer of amends procedure is based on the procedure in

England and Wales273F

274

which is set out in sections 2 to 4 of the Defamation Act 1996. There

are a number of differences between the Irish and UK provisions. In particular, section 3(10)

specifically provides that proceedings under that section shall be heard and determined without

a jury. Section 4(2) provides that the fact that an offer of amends was made is a defence to

defamation proceedings. Section 4(3) provides however that there is no defence if the

defendant “knew or had reason to believe that the statement” complained of (a) referred to the

plaintiff or was likely to be understood as referring to him/her, and (b) was both false and

defamatory of the plaintiff; but it is presumed until the contrary is shown that the defendant did

not know and had no reason to believe that was the case.

Gatley on Libel and Slander274F

275

notes that “the expression “had reason to believe” in s. 4(3) is

equivalent to the recklessness or conscious indifference which amounts to malice for the

purposes of qualified privilege”. They point out that in England and Wales the current

269

D Daly.

270

Professor Neville Cox, Defamation Law and the 2009 Defamation Act, presentation to Symposium on

Reform of Defamation Law, 14 November 2019 at

http://www.justice.ie/en/JELR/A%20Scott_Presentation_Defmation.ppt/Files/A%20Scott_Presentation_Defmat

ion.ppt .

271

ibid.

272

ibid.

273

ibid.

274

The offer of amends procedure set out in sections 2 to 4 apply to England, Northern Ireland, Scotland and

Wales.

275

Gatley on Libel and Slander at para. 19.6.

102

formulation (knew or was reckless) was brought in to replace an earlier provision (section 4 in

the 1952 Defamation Act), which was widely accepted to be ineffective – indeed it appears to

have been almost unused – both because it didn’t allow for an award of damages, and because

“Under section 4 of the 1952 Act, the defendant was required to show that he had taken all

reasonable care in relation to the publication.” (i.e. had not been negligent). And they say that

taking a contrary view (that the offer is not a defence in cases of negligent defamation) would

make the defence of an offer of amends as ineffective as the 1952 provision. They quote a

passage from Milne v. Express Newspapers275F

276

which says: (Eady J, para 37-41)

“It has to be remembered that if this defence is relied on, no other defence may be

pleaded …. If the jury were persuaded that greater care could or should have been taken,

in any given case, then …. the defence would fail and the defendant would be left naked

on the issue of liability. It would not have been possible to plead, for example,

justification or fair comment. If claimants were able to challenge a section 4 defence

routinely, in the absence of bad faith, the whole offer of amends regime would be

rendered ineffective … The main purpose of the statutory [offer of amends] regime is to

provide an exit route for journalists who have made a mistake and are willing to put their

hands up and make amends.”

In Scotland, the Defamation and Malicious Publication (Scotland) Act 2021 (sections 13 to

18) replaces sections 2 to 4 of the Defamation Act 1996 in so far as they apply to Scotland,

subject to a limited number of amendments.276F

277

In Australia, sections 13 – 19 of the Model Defamation Provisions set out provisions in

relation to offers to make amends. These provisions may be used before, or as an alternative

to, litigation. An offer of amends must be made within specified time limits; it cannot be made

if a defence has been served to an action for defamation. An offer to make amends must include,

inter alia, an offer to publish a correction, and an offer to pay the costs of the plaintiff. An

offer may include inter alia an offer to publish an apology, and an offer to pay compensation.

The amount of compensation may be proposed by the defendant, agreed between the parties,

determined by an arbitration process or determined by a court. An offer of amends may be

withdrawn before it is accepted and a publisher who does so may make a renewed offer. The

making of an offer of amends is a defence to an action for defamation if specified requirements

are met, including that the offer was reasonable (which will be determined by a court on the

basis of criteria set out in the Provisions). In accordance with the Model Defamation

Amendment Provisions 2020, the question of whether such a defence is established is a matter

for the judge (in jurisdictions where jury trials exist). Evidence of any statement of admission

made in connection with the making or acceptance of an offer of amends is not admissible in

any legal proceedings, other than proceedings in connection with the offer of amends.

Section 40 of the Model Defamation Provisions requires a court (unless the interests of justice

require otherwise) to order costs against an unsuccessful party to proceedings for defamation

to be assessed on an indemnity basis if the court is satisfied that the party unreasonably failed

to make or accept a settlement offer made by the other party to the proceedings. A settlement

offer is defined as any offer to settle the proceedings made before the proceedings are

determined, and includes an offer to make amends (whether made before or after the

proceedings commenced), that was a reasonable offer at the time it was made. The section also

276

[2004] EWCA Civ 664, [2005] 1 All ER 1021.

277

Explanatory Notes Defamation and Malicious Publication (Scotland) Bill (as initiated),

https://www.parliament.scot/-/media/files/legislation/bills/current-bills/defamation-and-malicious-publication-

scotland-bill/introduced/explanatory-notes-defamation-and-malicious-publication-scotland-bill.pdf

103

provides that in awarding costs, the court may have regard to (i) the way in which the parties

to the proceedings conducted their cases, and (ii) any other matters that the court considers

relevant.

3.5.5 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 amend section 23 to provide that the reference to the High Court (for the purposes of the

assessment of damages under section 23(1)(c)) means a judge sitting without a jury;

 set out the discount procedure in section 23;

 allow for determination of damages by an alternative disputes resolution process without

reference to the court, or provide for a stay pending ADR determination of any

proceedings that had been issued;

 amend the Act to provide that the plaintiff must prove that the defendant acted recklessly

to defeat the offer of amends as a defence;

 extend the scope of section 29 to cases where the defendant made an offer of amends.

Option 1: Amend section 23 to provide that the reference to the High Court (for the purposes

of the assessment of damages under section 23(1)(c)) means a judge sitting without a jury

Arguments in favour

 This proposal would be in line with the objective of the procedure which is, as observed

by Dunne J. in Higgins277F

278

, “to facilitate early expeditious and more economic speedy

resolution of defamation actions” and, if possible, to avoid the necessity of court

proceedings.

 The current offer of amends scheme in the High Court is, from the viewpoint of many

defendants, “a high risk proposition with little prospect of reward. There is no reason to

suppose a jury will look kindly on a defendant who has already conceded that the plaintiff

has been defamed, but now wants a courtroom dispute over damages.”278F

279

 Amending section 23 to remove the role of juries in High Court actions would make the

offer of amends scheme more attractive for defendants.

 It is doubtful whether any defendant will use the offer of amends provisions following

the decision in Higgins.279F

280

Arguments against

 The issue of damages in a defamation case is a question of fact which is traditionally a

matter for a jury in a High Court action.

Option 2: Set out the discount procedure in section 23

278

Higgins v The Irish Aviation Authority White v Sunday Newspapers Ltd [2018] IESC 29 [2018] 3 IR 374.

279

Maher, J., The Law of Defamation (2

edn.) at p. 360.

280

A& L Goodbody, Time to say goodbye: Why Ireland should remove juries from defamation cases, 10 July

2020, https://www.algoodbody.com/insights-publications/time-to-say-goodbye-why-ireland-should-remove-

juries-from-defamation-cases

104

Arguments in favour

 Express provision for a discount procedure would achieve consistency and clarity as

regards the operation of the procedure.

 It would provide clear guidance to parties who engage in the offer of amends procedure.

Arguments against

 Any amendment to explicitly provide for a discount procedure would merely codify

developing case-law as the current practice is to determine the amount of damages that

should be awarded and to apply a discount to that amount to take account of the offer of

amends made by the defendant.

 Should the law be amended to allow for judge-only decisions, there will be more certainty

in relation to the level of discounts.

 The introduction of procedure and criteria could have the effect of introducing

inflexibilities into the law.

 This issue could be dealt with in a practice direction rather than in legislation.

Option 3: Allow for determination of damages by an alternative disputes resolution process

without reference to the court, or provide for a stay pending ADR determination of any

proceedings that had been issued, where the parties so agree

Arguments in favour

 There are many advantages associated with ADR – it gives the parties an opportunity to

meet face to face; it removes guesswork by giving parties a realistic view of what the

other party wants; it focuses on a solution rather than taking the procedural steps required

to bring a case to court; and it can take place early without the need to incur the costs of

a court action.

 Inclusion of a specific provision in relation to arbitration in the Act would mean that the

amount of damages that should be awarded would be determined by an independent third

party and might encourage the parties to avail of that option rather than going to court.

Arguments against

 The offer of amends procedure is a form of mediation.

 The Mediation Act 2017 already imposes an obligation on solicitors (and barristers,

subject to the making of Regulations by the Minister for Justice) to advise any person

contemplating the taking of legal action to consider mediation as a means of resolving

the dispute before embarking on such proceedings.

105

Option 4: Amend the Act to provide that the plaintiff must prove that the defendant acted

recklessly to defeat the offer of amends as a defence

Arguments in favour

 The use of the offer to make amends procedure should be incentivised as it resolves

disputes more quickly, saves court time and delays.

 If a defendant in a defamation action pleads the defence of an offer of amends, no other

defence may be pleaded, if in the action it was found that greater care could or should

have been taken, in any given case, the defence would fail and the defendant would not

be able to plead, for example, truth or honest opinion. The application of a test of

negligence may make the defence less attractive to defendants.

 If the defendant has accepted responsibility at an early stage, he/she should be entitled to

avail of the defence of an offer to make amends, unless the original publication was

reckless.

Arguments against

 The procedure should be available to defendants who make a genuine mistake; it should

not be available to those who act negligently.

Option 5: Extend the scope of section 29 (Lodgement of money in settlement of action) to

cases where the defendant made an offer of amends

See Chapter 6 – Lodgement of money in settlement of action.

Recommendations

The following options are recommended:

 Option 1: Amend section 23 to provide that the reference to the High Court (for the

purposes of the assessment of damages under section 23(1)(c)) means a judge sitting

without a jury (this recommendation will not be relevant if the recommendation to

abolish juries is accepted); and

 Option 4: Amend the Act to provide that the plaintiff must prove that the defendant acted

recklessly to defeat the offer of amends as a defence.

The following options are not recommended:

 Option 2: Set out the discount procedure in section 23; and

 Option 3: Allow for determination of damages by an alternative disputes resolution

process without reference to the court, or provide for a stay pending ADR determination

of any proceedings that had been issued, where the parties so agree.

3.6 Fair and reasonable publication on a matter of public interest

3.6.1 Current legal position

Section 26 of the Act provides for a defence of fair and reasonable publication on a matter of

public interest. This defence applies where the defendant can prove that the allegedly

106

defamatory statement was published (i) in good faith; (ii) in the course of, or for the purposes

of, discussion of a subject of public interest, the discussion of which was for the public benefit;

(iii) in all the circumstances of the case, the manner and extent of publication of the statement

did not exceed that which was reasonably sufficient; and (iv) in all the circumstances of the

case, it was fair and reasonable to publish the statement.280F

281

Subsection (2) sets out an indicative list of issues that the court must take into account (where

relevant) in determining the fairness and reasonableness of the publication e.g. the extent to

which the statement concerned refers to the performance by the person of his/her public

functions; the seriousness of the allegations made in the statement; the extent to which the

statement drew a distinction between suspicions, allegation and facts; the attempts made, and

the means used, by the defendant to verify the assertions and allegations concerning the

plaintiff, etc.

For the purposes of this section “court” means, in relation to a defamation action brought in

the High Court, the jury, if the High Court is sitting with a jury.281F

282

Subsection (3) provides that the failure or refusal of a plaintiff to respond to attempts by or on

behalf of the defendant to elicit the plaintiff’s version of events, shall not constitute or imply

consent to publication of the statement or entitle the court to draw any inferences.

Subsection (4) provides that for the purposes of section 26 a defamation action does not include

an application for a declaratory order.

The Explanatory Memorandum on the Act states that section 26 introduces a significant new

defamation defence into Irish law. It goes on to state:

The … defence is essentially designed to facilitate public discussion where there is both

a benefit and an interest in such discussion taking place. The defence is subject to the

criterion of fairness and reasonableness and a range of matters - which are non-

exhaustive - are specified which a court shall take into account in determining whether

or not the publication of a statement is fair and reasonable in the circumstances.282F

283

Section 26 “is designed to facilitate public discussion where there is both a benefit and an

interest in such discussion taking place” and “facilitate responsible journalism.”283F

284

In Meegan

v. Times Newspapers Ltd,284F

285

Hogan J described this defence as “a novel provision which, …,

has yet to be successfully invoked in any reported defamation case”. He went on to state:

The section is clearly designed to provide a defence for publishers who show that they

acted bona fide and that the publication was fair and reasonable having regard, in

particular, to the matters set out is s.26(2) of the 2009 Act. Section 26 may be regarded

as an endeavour by the Oireachtas to move away in some respects from the strict liability

nature of the common law tort of libel and to introduce – in, admittedly, some specific

281

Section 26(1)

282

Section 26(4).

283

Explanatory Memorandum to Defamation Act 2009;

https://www.justice.ie/en/JELR/Explanatory%20Memo%20to%20Defamation%20Bill.pdf/Files/Explanatory%2

0Memo%20to%20Defamation%20Bill.pdf.

284

Minister for Justice and Equality, Defamation Bill 2006, Dáil Second Stage, 8 May 2008.

285

[2016] IECA 327. (This case related to discovery.)

107

and limited respects – a negligence based standard in actions for defamation under the

2009 Act. This is reflected, in particular, in s. 26(2)(i) which requires the court to have

regard to the endeavours made by the publisher to verify the contents of the article in

assessing the defence of fair and reasonable publication.285F

286

In its classic form, the defence is oriented to reporting of facts, and does not cover publication

of opinions. Those fall to be protected (or not) under the defence of honest opinion, which is

similarly subject to the condition that the statement must be on a matter of public interest. 286F

287

If a journalist makes allegations (as distinct from neutrally reporting allegations made by

others) he/she should have “complied with the ordinary journalistic obligation to verify a

factual allegation”, and must have:

“relied on a sufficiently accurate and reliable factual basis which could be considered

proportionate to the nature and degree of [the] allegation, given that the more serious the

allegation, the more solid the factual basis has to be.”287F

288

The European Court of Human Rights, in particular, has consistently underlined that journalists

who publish on subjects of genuine public importance play a vital role in safeguarding

democracy, and must be permitted to carry out that task effectively, in a way that respects the

confidentiality of their sources:

“ .. a constant thread running through the Court’s case-law is the insistence on the essential

role of a free press in ensuring the proper functioning of a democratic society. Although the

press must not overstep certain bounds, regarding in particular protection of the reputation

and rights of others and the need to prevent the disclosure of confidential information, its duty

is nevertheless to impart – in a manner consistent with its obligations and responsibilities –

information and ideas on all matters of public interest …. .

Not only does the press have the task of imparting such information and ideas; the public also

has a right to receive them. Were it otherwise, the press would be unable to play its vital role

of “public watchdog” … .”288F

289

However, the ECtHR has equally insisted that this depends on the journalist acting responsibly:

“… protection of the right of journalists to impart information on issues of general interest

requires that they should act in good faith and on an accurate factual basis and provide

“reliable and precise” information in accordance with the ethics of journalism ….. Under the

terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it

“duties and responsibilities”, which also apply to the media, even with respect to matters of

serious public concern.

Moreover, these “duties and responsibilities” are liable to assume significance when there is a question

of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special

286

ibid at para. 10.

287

The House of Lords in Reynolds v Times Newspapers [1999 UKHL 45] expressly stated that for this reason,

the defence of reasonable publication in the public interest did not apply to statements of opinion. The Defamation

Act 2013 (England and Wales), which replaced the Reynolds common-law defence with a new statutory defence,

therefore surprised some legal commentators by providing that the statutory defence would also apply to

statements of opinion. The leading textbook, Gatley on Libel and Slander, is critical of that approach, noting that

it will “produce some overlap with ..‘honest opinion’… As a matter of principle, the position stated in the House

of Lords is preferable … although for some, this distinction is no more than a ‘technicality’. (at para 15.19.)

288

Pedersen v Denmark, ECtHR (Grand|Chamber), Applic’n 49017/99, judgment 17/12/2004, para 78.

289

Pedersen v Denmark, ECtHR, para 71, citing also Thorgeirson v. Iceland, ECtHR, 25 June 1992, § 63, and

Bladet Tromsø v. Norway, ECtHR no. 21980/93, § 62.

108

grounds are required before the media can be dispensed from their ordinary obligation to verify factual

statements that are defamatory of private individuals. Whether such grounds exist, depends in

particular on the nature and degree of the defamation in question, and the extent to which the media

can reasonably regard their sources as reliable with respect to the allegations …”289F

290

3.6.2 Main issues raised in course of review

The consensus among the majority290F

291

of those who commented on section 26 was that this

defence is overly complex, lacks clarity and sets too high a hurdle for the defence to be

successfully pleaded. It was argued that it fails to achieve the objective of the section as

explained in the Explanatory Memorandum to the Act which states that this section is

“essentially designed to facilitate public discussion where there is both a benefit and an interest

in such discussion taking place”. It does not provide an adequate level of protection for freedom

of expression on matters of public interest. The lack of such a defence means that important

and serious journalism on matters of public interest remains open to challenge. The defence

does not protect a defendant from liability for publication of a potentially defamatory statement

where the defendant’s conduct in publishing the material was fair and reasonable and related

to a matter of public interest.

It was stated that this defence has its genesis in Ireland’s obligations under Article 10 ECHR,

as applied under the common law and the Constitution. Article 10 applies not only to the

defences available to a publisher involved in litigation but to the publication itself. A publisher

must be able to know, with a reasonable degree of certainty, at the time of publication whether

the defence will apply and is likely to succeed otherwise the publisher is unlikely to publish

the material. One submission291F

292

to the review following the Symposium suggested that section

26 may not meet the standard required under Article 10 ECHR.

Contributors to the review made the following suggestions for reform:

 Section is overcomplicated

The application of an entirely separate test of fairness and reasonableness (as well as public

interest) makes the section over complicated. Some of the concepts are so vague that it is

impossible to assess them objectively. The defence should be available unless no reasonable

person could have honestly come to the conclusion that publication was fair and reasonable.

Particular concern was expressed in relation to the onerous check-list in subsection (2) of

section 26.

 Reportage privilege and fair and impartial reporting in public interest

Privilege should be accorded to reportage and/or responsible journalism on the basis that it is

in the public interest that the Press should be able to impartially report both sides of a story that

is in the public domain, and it is undesirable that it should take one side or the other. It is very

doubtful whether section 26 provides a defence for reportage. Those reporting about matters of

public interest should not be exposed to legal action if they act responsibly, verifying

potentially defamatory material. However, verifying such material is not always possible; the

290

Pedersen v Denmark, ECtHR, para 78.

291

Bar Council, Business Journalists Association, Anonymous1, Crowley, Department of Communications,

Climate Action and the Environment, DIT, K. Fitzpatrick, Anonymous2, Irish Times, Joint Oireachtas

Committee on Justice and Equality, Local Ireland, McCann Fitzgerald, NewsBrands, NUJ, T. O’Conail, E.

O’Dell, H. O’Driscoll, D. Reynolds, Ronan Daly Jermyn, RTE, ICCL (following Defamation Symposium).

292

Irish Council for Civil Liberties.

109

protection of the right to free speech exceptionally requires a proper functioning defence on

matters of public interest where a publisher or journalist cannot avail of the normal defences

available in defamation proceedings.

The defence should allow fair and impartial reporting of material, whose accuracy the plaintiff

disputes, where the defendant believes that publication is in the public interest.

 Section 4 of England and Wales Defamation Act 2013

Section 4 of the England and Wales Defamation Act 2013 (see below) is a far more flexible

provision; it allows the courts to interpret the defence by reference to existing case-law without

putting on a statutory footing the narrow checklist of relevant factors set out in the Reynolds292F

293

case. The defence is available where the defendant is able to prove that the “statement

complained of was, or formed part of, a statement on a matter of public interest” and that “the

defendant reasonably believed that publishing the statement was in the public interest”. One

submission to the review following the Symposium indicated that adoption of the approach in

England and Wales would mean providing for the defence of publication on a matter of public

interest without having to prove that publication was “fair and reasonable in all of the

circumstances”.293F

294

 Role of judge and jury

It would be more appropriate for a judge to consider whether the defence is made out and direct

the jury accordingly because of the complex nature of this defence.

294F

295

One submission to the

review following the Symposium reiterated its previous recommendation that the weighing of

factors under section 26 should expressly be reserved to the trial judge, given the complexity

of the issues under consideration.295F

296

 Social media and online sites

This section should be amended to provide a legal incentive for social media sites and online

sites of broadcasters which are not currently covered by the Broadcasting Act to sign up to the

Press Council and its code of conduct.296F

297

 Role of Press Council

One submission297F

298

to the review following the Symposium suggested that section 26 should be

amended to include a provision whereby judges would take into account, in their consideration

of defamation actions, whether or not plaintiffs availed of the services of the Press Ombudsman

and Press Council before initiating legal proceedings. It was suggested that if the purpose of

defamation proceedings is to correct an injustice and re-establish reputations this may be,

depending on circumstances, available through the Press Ombudsman and the Press Council.

If plaintiffs have not taken this route this could be a factor in the determination of awards or in

the instruction of juries by judges.

293

Reynolds v. Times Newspapers Ltd [2001] 2 AC 127.

294

ICCL.

295

McCann Fitzgerald, MGM.

296

McCann Fitzgerald.

297

Irish Times.

298

Press Ombudsman.

110

3.6.3 Comparative Perspectives

In England and Wales, section 4 of the Defamation Act 2013298F

299

provides that it is a defence

to an action for defamation for the defendant to show that the statement complained of was, or

formed part of, a statement on a matter of public interest and that he/she reasonably believed

that publishing the statement was in the public interest (subsection (1)). In determining whether

section 4 applies, the court must have regard to all the circumstances of the case (subsection

(2)). In particular, if the statement complained of was, or formed part of, an accurate and

impartial account of a dispute to which the claimant was a party, the court must in determining

whether it was reasonable for the defendant to believe that publishing the statement was in the

public interest, disregard any omission of the defendant to take steps to verify the truth of the

imputation conveyed by it (subsection (3)). The court must also make allowance for editorial

judgment (subsection (4)). The defence may be relied on irrespective of whether the statement

complained of is a statement of fact or a statement of opinion (subsection (5)). The common

law defence known as the Reynolds defence is abolished (subsection (6)).

The Explanatory Notes on this provision state that this is a new defence based on the common

law defence established in Reynolds v. Times Newspapers299F

300

and that it is intended to reflect

the principles established in that case and in subsequent cases. It explains that subsection (1)

contains a subjective element (what the defendant believed was in the public interest at the time

of publication) and an objective element (whether the belief was a reasonable one for the

defendant to hold in all the circumstances). The defence applies if the statement complained of

“was, or formed part of, a statement on a matter of public interest” to ensure that either the

words complained of may be on a matter of public interest, or that a holistic view may be taken

of the statement in the wider context of the document, article, etc. in which it is contained in

order to decide if overall it is on a matter of public interest. Subsection (3) provides for the

common law defence of “reportage” i.e. neutral reporting of attributed allegations rather than

their adoption by the newspaper. In such cases the defendant does not need to have verified the

information reported before publication because the way that the report is presented gives a

balanced picture.

299

Section 4 (publication on matter of public interest) provides:

(1) It is a defence to an action for defamation for the defendant to show that –

(a) the statement complained of was, or formed part of, a statement on a matter of public interest;

and

(b) the defendant reasonably believed that publishing the statement complained of was in the public

interest.

(2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned

in subsection (1), the court must have regard to all the circumstances of the case.

(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to

which the claimant was a party, the court must in determining whether it was reasonable for the defendant

to believe that publishing the statement was in the public interest, disregard any omission of the defendant

to take steps to verify the truth of the imputation conveyed by it.

(4) In determining whether it was reasonable for the defendant to believe that publishing the statement

complained of was in the public interest, the court must make such allowance for editorial judgement as it

considers appropriate.

(5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the

statement complained of is a statement of fact or a statement of opinion.

(6) The common law defence known as the Reynolds defence is abolished.

300

[2001] 2 AC 127.

111

In Scotland, the law recognises the defence of publication in the public interest based on

Reynolds; for example the Reynolds defence was adopted in Adams v. Guardian Newspapers

Ltd300F

301

and Lyons v. Chief Constable of Strathclyde301F

302

. The question of whether a statutory

public interest defence should be introduced was considered by the Scottish Law Commission,

which recommended the introduction of such a statutory defence.302F

303

Section 6 of the Defamation and Malicious Publication (Scotland) Act 2021 replicates section

4 of the Defamation Act 2013 in England and Wales.303F

304

The rationale for this provision is set

out in the Policy Memorandum on the Bill (as initiated) which states that in “the wider public

interest there are occasions when people should be able to speak and write freely to a

particular audience, uninhibited by the prospect of being sued for damages should they be

mistaken or misinformed”.304F

305

In Northern Ireland, the report on Reform of Defamation Law in Northern Ireland305F

306

recommends the introduction of a provision equivalent to section 4 of the England and Wales

Defamation Act 2013.

In Australia, section 30 of the Model Defamation Provisions (2005), which provides for a

defence of qualified privilege, lists a number of factors that the court may take into account in

determining whether the defendant acted reasonably. These factors largely reflect the factors

set out in Reynolds.

It appears that, as of December 2019, this defence has not been successfully argued by a media

defendant.306F

307

This has led to the introduction of a new defence of publication of matter of public

interest, similar to section 4 of the England and Wales Defamation Act.

Section 29A of the Model Defamation Amendment Provisions 2020 provides that it is a

defence to the publication of defamatory matter if the defendant proves that the matter concerns

an issue of public interest, and the defendant reasonably believed that the publication was in

the public interest. In determining whether the defence is established, a court must take into

account all of the circumstances of the case.

It sets out a non-exhaustive list of issues that may be taken into account by the court in

determining if the defence has been established— (a) the seriousness of any defamatory

imputation, (b) the extent to which a distinction was made between suspicions, allegations and

proven facts, (c) the extent to which the statement related to the performance by the plaintiff

of his/her public functions or activities, (d) whether it was in the public interest in the

circumstances for the matter to be published expeditiously, (e) the sources of the information,

including the integrity of the sources, (f) if a source is confidential, whether there is good reason

301

[2003] SC 425.

302

[2013] CSIH 46.

303

Scottish Law Commission, Report on Defamation (SCOT LAW COM No 248), December 2017.

304

The abolition of the Reynolds defence is provided for in section 8.

305

Defamation and Malicious Publication (Scotland) Bill Policy Memorandum, at p.20:

https://www.parliament.scot/-/media/files/legislation/bills/current-bills/defamation-and-malicious-publication-

scotland-bill/introduced/policy-memorandum-defamation-and-malicious-publication-scotland-bill.pdf

306

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, Dr

Andrew Scott, Department of Law, London School of Economics and Political Science, June 2016.

307

Background Paper: Model Defamation Amendment Provisions 2020 (Consultation Draft), December 2019, at

p. 20.

112

for the person’s identity to be kept confidential, (g) whether the matter published contained the

substance of the plaintiff’s side of the story and, if not, whether a reasonable attempt was made

by the defendant to obtain and publish a response from the plaintiff, (h) any other steps taken

to verify the information, and (i) the importance of freedom of expression in the discussion of

issues of public interest. For the purposes of this section, the court means the jury in

jurisdictions where jury trials exist.

In Canada, the Supreme Court in Grant v. Torstar307F

308

adopted a defence allowing publishers

“to escape liability if they can establish that they acted responsibly in attempting to verify the

information on a matter of public interest”. According to the court this was necessary to respect

freedom of expression and support the public exchange of information while retaining

protection of reputation.

This defence is explained in the Law Commission of Ontario’s report on Defamation Law in

the Internet Age308F

309

as follows:

“When truth cannot be proven, the responsible communication defence requires the

defendant to prove that the publication was on a matter of public interest and the

defendant acted responsibly in trying to verify the accuracy of the statement. Responsible

conduct by the defendant is determined by reference to a list of factors. …. the defence is

not limited to media publishers but is generally available to “anyone who publishes

material of public interest in any media”.309F

310

The factors relevant to determining whether or not the conduct of the defendant was responsible

include: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the

urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side

of the story was sought and accurately reported; (f) whether the inclusion of the defamatory

statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact

that it was made rather than its truth (reportage); and (h) any other relevant circumstances.310F

311

The Law Commission of Ontario concludes that the “responsible communication defence

represents a successful balancing between reputation and expression in the context of public

interest communications and is flexible enough that it should be available to all public interest

publishers”.311F

312

They note that the factors applied in Grant were designed for news reporting

and that the “criteria relevant to assessing responsible conduct will necessarily vary depending

on the nature of the publisher, the medium of communication and the circumstances of

publication”. They conclude that these criteria “are best developed by courts on a case-by-case

basis”.312F

313

In New Zealand the common law defence of “responsible communication on a matter of public

interest” was established by the Court of Appeal in Durie v. Gardiner313F

314

. This defence is made

out if the publication is in the public interest and is responsible. The court determines whether

308

2009 SCC 61.

309

Defamation Law in the Internet Age, Final Report, March, 2020.

310

Defamation Law in the Internet Age, Final Report, March, 2020 at p.31.

311

Grant v Torstar, paras 110-126.

312

Defamation Law in the Internet Age, Final Report, March, 2020 at p.32.

313

ibid.

314

[2018] NZCA 278.

113

the communication is responsible having regard to all the relevant circumstances of the

publication.

The “responsible journalism” approach has also been adopted in a number of ECtHR cases in

which it has been emphasised that the exercise of freedom of expression comes with

responsibilities and duties and that journalists benefiting from Article 10 ECHR must act in

good faith in order to provide reliable and accurate information in accordance with the ethics

of journalism.314F

315

3.6.4 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 amend section 26 by adopting an approach along the lines applied in UK jurisdictions

and in Canada;

 amend section 26 to provide that weighing of factors under section 26 should expressly

be reserved to the trial judge;

 require account to be taken of whether or not plaintiffs availed of the services of the Press

Ombudsman and Press Council before initiating legal proceedings

 do nothing.

Option 1: Amend section 26 by adopting an approach along the lines applied in UK

jurisdictions and in Canada

Arguments in favour

 Section 26 appears to be stricter than the common law prior to the enactment of the Act

e.g. prior to the introduction of the 2009 Act, once a matter was considered a matter of

public interest it generally followed that it could be publicly discussed; imposing a

requirement that the matter must also be for the public benefit and in good faith appears

to impose additional requirements. The sixth consideration in Reynolds was “the urgency

of the matter” (the court noted that “news is often a perishable commodity”), this factor

is incorporated in the 2009 Act as “the extent to which there were exceptional

circumstances that necessitated the publication of the statement on the date of

publication” which may be more difficult to prove.

 There are a number of elements in the defence that are unclear e.g. it is not clear how a

court must decide whether the public benefit requirement has been satisfied; the

parameters of the requirement on the defendant to show that the manner and extent of

publication did not exceed that which was reasonably sufficient are not clear.

 Despite the fact that this defence is “capable of protecting a responsible publication,

even where the allegations published are untrue”,315F

316

commentators note that it is

narrowly drawn, cumbersome and very difficult to satisfy316F

317

and it rarely goes to trial.

315

Maher J, The Law of Defamation, (Round Hall, 2

edn., 2018) at p. 283 (Cumpana v Romania (2005) 41

E.H.R.R. 200 at para. 102; Pedersen v Denmark (2006) 42 EHRR 24.)

316

Maher J, The Law of Defamation, 2

edn. at p268

317

Eoin O’Dell, Business Post OpEd,Blog: The critical balance – protecting your name vs freedom of

expression, Andrea Martin, partner, MediaLawyer Solicitors, Dublin, 13 November 2017;

https://www.irishlegal.com/article/blog-the-critical-balance-protecting-your-name-vs-free-expression

114

 The responsible journalism defence has been reflected in a number of ECtHR cases,

which emphasise the extent to which freedom of expression comes with responsibilities

and duties and that those who benefit from Article 10 ECHR are required to act in good

faith in order to provide accurate and reliable information in accordance with the ethics

of journalism.317F

318

 In Kehoe v. RTE,318F

319

the plaintiff claimed to have been defamed during a political

discussion on live radio, in which he was described as interfering with normal democratic

processes. RTE stated in evidence that once allegations had been made by one

contributor during a live debate, it was considered better to allow another contributor to

argue in defence of the plaintiff’s reputation rather than to cut off the discussion

immediately. The jury found in favour of the plaintiff and awarded damages of €10,000,

but found that RTE was only 35% responsible for the defamation and former Labour

T.D. Mr Joe Costello (who made the original statement) was 65% responsible. Maher

notes that “(d)uring the hearing, it became clear that a number of the ‘responsible

journalism’ steps of s.26, such as obtaining and verifying the plaintiff’s version of events,

were simply impracticable during such a live programme”. He went on to express the

view that this case demonstrates that section 26 is designed for a situation where there

is time for preparation before publication (e.g. investigative journalism or news

reporting) but is less suitable for live broadcasts and live online exchanges.319F

320

 The defence seems to lack both the adaptability of the common law defence, and the

flexibility of section 4 of the England and Wales Defamation Act, “a flexibility

particularly required in the context of today’s fast-developing media landscape”.320F

321

Arguments in favour of the England and Wales and Scotland approach

 Section 4 of the England and Wales Defamation Act 2013 provides for a “very broad

defence of publication on a matter of public interest”321F

322

e.g. section 4(3) provides for “a

‘reportage’ privilege which may be available where the views or statements of each side

in a dispute are sought and reported in a balanced fashion, even if steps are not taken to

verify the validity of the versions put forward by each side”.322F

323

 Section 4 specifically requires the court to make allowance for “editorial judgment”

which acknowledges that the courts may “know less than journalists and media

executives about the exigencies of attracting and holding the interest of their

audience”.323F

324

318

Maher J, The Law of Defamation, 2

edn. at p. 283 based on in particular Campana v Romania (2005) 41

EHRR 200 and Pedersen v Denmark (2006) 42 EHRR 24.

319

[2018] IEHC 340.

320

Maher J, The Law of Defamation, 2

edn. at p. 294.

321

Maher J., The Law of Defamation, 2

edn. at p.305.

322

Professor Neville Cox, The Future of the Reynolds Defence in Irish Defamation Law following the

Defamation Act 2009 ,The Irish Jurist 2014. 51(1), 28-58

323

Maher J., The Law of Defamation, 2

edn. at p. 266.

324

Maher J., The Law of Defamation, 2

edn. at p. 290.

115

Arguments in favour of responsible journalism approach based on either the New Zealand or

Canadian approach

 It would be simpler than the England and Wales and Scotland approach.

 It could give more guidance to the court as it could specify factors to be taken into account

in determining whether or not a publication was responsible.

 It could provide a more flexible approach.

Arguments against

 Section 26 has not been the subject of an appellate court decision, so the scope offered

by this defence is not yet clear.

 Under section 26, there is no requirement to prove the truth of what was published or that

the defendant believed it was true; any proposal to expand the scope of this defence would

require careful consideration in view of the constitutional requirement to protect a

person’s good name.

Arguments against the England and Wales and Scotland approach

 On one interpretation of the “reportage” defence (i.e. the accurate and impartial account

of a dispute involving the plaintiff), it could encourage journalists to avoid seeking to

independently verify the allegations they intend to publish, for fear that the additional

knowledge will force them to adopt one position rather than another.324F

325

Option 2: Amend section 26 to provide that weighing of factors under section 26 should

expressly be reserved to the trial judge

This option will depend on whether it is decided to retain juries in High Court actions.

Arguments in favour

 This is a complex defence, involving issues such as public interest and public benefit,

which would best be determined by a judge.

 It may be very difficult for a judge to direct a jury on the criteria listed in section 26 and,

in particular, on the policy arguments that underpin the defence.325F

326

Arguments against

 These are issues of fact which are traditionally matters to be determined by a jury in a

jury action.

 It could be very difficult to separate these issues from other issues of fact.

325

Maher J., The Law of Defamation, 2

edn. at p. 297.

326

Cox N. and McCullough E, Defamation Law and Practice at para. 9-107.

116

Option 3: Require account to be taken of whether or not a plaintiff availed of the services of

the Press Ombudsman and Press Council before initiating legal proceedings

Arguments in favour

 This would encourage individuals to avail of the services of the Press Ombudsman and

Press Council and may reduce recourse to the courts.

Arguments against

 This would merely add an additional step, resulting in additional delay and costs, in cases

where an individual who believes that his/her reputation has been damaged as a result of

a defamatory statement wishes to seek damages.

 This proposal would apply only to publishers of periodicals; it would not apply to

broadcast media.

Option 4: Do nothing

Arguments in favour

 Section 26 has not been the subject of an appellate court decision so the scope offered by

this section is not yet clear.

Arguments against

 Section 26 has been little used; the provision seems “to lack both the adaptability of a

common law defence, and the flexibility of the statutory version enacted in England”.326F

327

Recommendations

The following option is recommended:

 Option 1: Amend section 26 by adopting an approach along the lines applied in UK

jurisdictions and in Canada.

The following options are not recommended:

 Option 2: Amend section 26 to provide that weighing of factors under section 26 should

expressly be reserved to the trial judge (this option will not be relevant if the

recommendation to abolish juries is accepted);

 Option 3: Require account to be taken of whether or not a plaintiff availed of the services

of the Press Ombudsman and Press Council before initiating legal proceedings; and

 Option 4: Do nothing.

3.7 Innocent Publication

3.7.1 Current legal position

Section 27 of the Act provides for the defence of innocent publication where the defendant

proves that he/she was not the author, editor or publisher of the statement complained of, he/she

327

Maher J., The Law of Defamation, 2

edn. at p 305.

117

took reasonable care in relation to its publication and he/she did not know, and had no reason

to believe, that what he/she did caused or contributed to the publication of a statement that

would give rise to a cause of action in defamation.327F

328

The terms “author”, “editor” or

“publisher” are not defined but the section describes a series of functions and activities that are

outside the scope of what is an author, editor or publisher.328F

329

It also sets out factors the court

must have regard to when determining whether a person took reasonable care, or had reason to

believe that what he/she did caused or contributed to the publication of a defamatory

statement.329F

330

(See also chapter 7 on the relevance of this defence in the context of online

publication.)

The defence does not apply to the broadcast of a live television or radio programme where a

contributor makes a defamatory statement. In Nicky Kehoe v. Radio Teilifis Éireann,330F

331

the

plaintiff (a former member of the IRA) sued RTE for remarks made by Mr Joe Costello, on a

current affairs programme , suggesting that Sinn Fein members of Dublin City Council were

controlled by a member of the IRA army council. Another contributor immediately said that

Mr Costello was referring to Mr Kehoe and went on to defend Mr Kehoe.

In the High Court, RTE contended that if the impugned statements were to be found to be

defamatory, they were made by Mr Costello during what he knew to be a live broadcast. It

followed that as the statements were published simultaneously by the defendant to the same

listeners, the Court should find Mr Costello to be a concurrent wrongdoer under the Civil

Liability Act 1961. The plaintiff’s evidence was that although he considered Mr Costello to be

at fault as the author of the impugned statements, he did not institute proceedings against him

because he considered it was the defendant who had published or “had let the statements out”.

The High Court accepted RTE’s argument that the relevant provisions of the Civil Liabilities

Act 1961331F

332

apply to defamation proceedings and that should the jury find that the statement

328

Section 27(1) provides:

It shall be a defence (to be known as the ‘defence of innocent publication’) to a defamation action for the defendant

to prove that –

(a) he or she was not the author, editor or publisher of the statement to which the action relates,

(b) he or she took reasonable care in relation to its publication, and he or she did not know, and had no

reason to believe, that what he or she did caused or contributed to the publication of a statement that

would give rise to a cause of action in defamation.

329

Section 27(2) provides:

A person shall not, for the purposes of this section, be considered to be an author, editor or publisher of a

statement if -

(a) in relation to printed material containing the statement, he or she was responsible for the printing,

production, distribution or selling only of the printed material,

(b) in relation to a film or sound recording containing the statement, he or she was responsible for the

processing, copying, distribution, exhibition or selling only of the film or sound recording,

responsible for the processing, copying, distribution or selling only of the electronic medium or was

responsible for the operation or provision only of any equipment, system or service or means of which

the statement would be capable of being retrieved, copied, distributed or made available.

330

Section 27(3) provides:

The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe

that what he or she did caused or contributed to the publication of a defamatory statement, have regard to –

(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,

(b) the nature or circumstances of the publication, and

331

[2018] IEHC 340.

332

Sections 2, 11, 12, 14, 34 and 35.

118

by Mr Costello was defamatory he would be a concurrent wrongdoer and could have been

joined as a concurrent defendant in the proceedings. It also held that where a plaintiff permits

his claim against any concurrent wrongdoer to become statute barred, the effect of section

35(1)(i) of the Civil Liabilities Act 1961 is to deem the liability of the statute barred defendant

a form of contributory negligence which may be pleaded against the plaintiff in reduction of

the award of damages. It went on to say that the “Plaintiff permitted his claim against Joe

Costello, a concurrent wrongdoer, to become statute barred. It follows that the Defendant is

entitled to rely on the plea pursuant to s. 35 (1) (i) by way of defence to the Plaintiff’s claim”.

The jury was therefore asked, in the event of deciding that the plaintiff should be awarded

damages, to determine what percentage, if any, of the damages RTE should be held liable for.

The jury went on to reject RTE’s defence under section 26 of the Defamation Act 2019 and

awarded the plaintiff €10,000 in damages, but found that Mr Costello was 65% liable for what

had occurred (this is subject to appeal).332F

333

333F

334

3.7.2 Main issues raised in course of review

The majority of submissions in relation to innocent publication relate to online publication

which is dealt with in chapter 7. One submission recommended that a defence of innocent

publication in the context of live broadcast should be available to broadcasters. It noted that

the Legal Advisory Working Group on Defamation recommended that a defence for live

broadcasting be introduced and stated that in the absence of such a defence, broadcasters who

have taken all reasonable measures to avoid defamatory statements being made live on air are

exposed for liability for statements by contributors.334F

335

Another submission stated that

broadcasters should not be held responsible for comments made by interviewees in live

discussions, particularly where the host takes steps to restrain the person from the comments

and/or makes an effort to provide a contra viewpoint. It argued that the current law excessively

limits public debate on matters of public interest and negligence should have to be proven.335F

336

3.7.3 Comparative Perspectives

In England, Wales and Northern Ireland section 1 of the Defamation Act 1996 provides that

in defamation proceedings, a person has a defence if he/she shows: (a) that he/she was not the

author, editor or publisher of the statement complained of, (b) he/she took reasonable care in

relation to the publication, and (c) he/she did not know, and had no reason to believe, that what

he/she did caused or contributed to the publication of a defamatory statement. The section

defines “author”, “editor” and “publisher” and sets out situations where a person is not

considered an author, editor or publisher. With regard to broadcasting, the section provides that

a person shall not be considered the author, editor or publisher of a statement if he/she is only

involved as the broadcaster of a live programme containing the statement in circumstances in

333

Irish Times, 26 February 2018, https://www.irishtimes.com/news/crime-and-law/courts/high-court/ex-ira-

member-nicky-kehoe-wins-3-500-in-rt%C3%A9-defamation-case-1.3406026.

334

Joe Costello is suing RTE, the State and the Attorney General claiming that he was denied fair procedures

and natural and constitutional justice as he had no opportunity to defend himself in this case. He is also claiming

that his political credibility and reputation were damaged. https://www.independent.ie/regionals/herald/news/ex-

minister-costello-suing-rte-and-state-in-wake-of-kehoe-defamation-action-39022770.html.

335

NUJ.

336

H. O’Donnell

119

which he/she has no effective control over the maker of the statement. The section also sets out

factors the court must have regard to when determining whether a person took reasonable care,

or had reason to believe that what he/she did caused or contributed to the publication of a

defamatory statement.

In Scotland, section 3 of the Defamation and Malicious Publication (Scotland) Act 2021336F

337

“provides a simple, and unqualified, removal of the court’s jurisdiction in relation to secondary

publishers, other than in respect of the author, editor or publisher of a statement, or in certain

other circumstances to be specified in regulations”.337F

338

With regard to broadcasters, section 3(4)

provides that a person is not to be considered an author, editor or publisher of a statement or,

in the case of an employee or agent of such a person, responsible for its content or the decision

to publish it, if the person’s involvement with the statement is only broadcasting a live

programme containing the statement in circumstances in which the person has no effective

control over the maker of the statement.338F

339

The Act also provides for the making of regulations

to specify categories of persons to be treated as authors, editors or publishers, who would not

otherwise be classified as such, nor as employees or agents of such persons. The regulations

may also specify a defence available to any person who did not know and could not reasonably

be expected to know that the material contained a defamatory statement.

In Australia, the Model Defamation Provisions339F

340

provide for the defence of innocent

dissemination i.e. if the defendant proves that (a) he/she published the matter merely in the

capacity, or as an employee or agent, of a subordinate distributor, (b) he/she neither knew, nor

ought reasonably to have known, that the matter was defamatory, and (c) his/her lack of

knowledge was not due to any negligence on his/her part. A person is a subordinate distributor

of defamatory matter if he/she (a) was not the first or primary distributer of the matter, (b) was

not the author or originator of the matter, and (c) did not have any capacity to exercise editorial

control over the content of the matter (or over the publication of the matter) before it was first

published. In so far as live broadcasts are concerned, a person is not the first or primary

distributor of matter merely because the person was involved in the publication of the matter

in the capacity of a broadcaster of a live programme (whether on television, radio or otherwise)

containing the matter in circumstances in which the broadcaster has no effective control over

the person who makes the statements that comprise the matter.

3.7.4 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 provide for an exemption for statements made in live broadcasts by persons over whom

the broadcaster has no effective control, provided that the broadcaster takes reasonable

precautions in advance of the live broadcast, and reasonable care during the broadcast;

 do nothing.

337

https://www.legislation.gov.uk/asp/2021/10/enacted

338

Defamation and Malicious Publication (Scotland) Bill, Policy Memorandum, at p. 22.

https://beta.parliament.scot/-/media/files/legislation/bills/current-bills/defamation-and-malicious-publication-

scotland-bill/introduced/policy-memorandum-defamation-and-malicious-publication-scotland-bill.pdf .

339

Unlike the 1996 Defamation Act (which applied to Scotland but is repealed by the Act), there is no

requirement for the defendant to show that he/she took reasonable care, nor that a reasonable lack of knowledge

caused or contributed to the publication of the statement.

340

Section 32.

120

Option 1: Provide for an exemption for statements made in live broadcasts by persons over

whom the broadcaster has no effective control provided that the broadcaster takes

reasonable precautions in advance of the live broadcast and reasonable care during the

broadcast

Arguments in favour

 This option would provide protection for broadcasters in respect of defamatory

statements made during live broadcasts by an individual who is not an employee of the

broadcaster or acting under its effective control, while imposing an obligation on

broadcasters to take reasonable care to ensure that defamatory material is not published

during live broadcasts; it could be argued that it strikes an appropriate balance between

the responsibility of broadcasters and the right to a good name for an individual.

 Provided a broadcaster takes reasonable care, both before and during a live broadcast, to

prevent the making of defamatory statements in live broadcasts and to address any such

statement expeditiously (e.g. by providing guidelines to guests before appearing on the

live broadcast and taking appropriate steps to stop a contributor from making a

potentially defamatory statement or to counter any such statement immediately/as soon

as possible), a broadcaster should not be held liable for statements made by a third party

which are completely outside the control of the broadcaster.

 The Report of the Legal Advisory Group on Defamation recommended the adoption of

the approach set out in the UK Defamation Act 1996,340F

341

subject to the imposition of a

341

Section 1 (Responsibility for publication) of Defamation Act 1996

(1) In defamation proceedings a person has a defence if he shows that—

(a) he was not the author, editor or publisher of the statement complained of,

(b) he took reasonable care in relation to its publication, and

publication of a defamatory statement.

(2) For this purpose “author”, “editor” and “publisher” have the following meanings, which are further

explained in subsection (3)—

“author” means the originator of the statement, but does not include a person who did not intend that his

statement be published at all;

“editor” means a person having editorial or equivalent responsibility for the content of the statement or

the decision to publish it; and

“publisher” means a commercial publisher, that is, a person whose business is issuing material to the

public, or a section of the public, who issues material containing the statement in the course of that

business.

(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved—

…

(d) as the broadcaster of a live programme containing the statement in circumstances in which he has no

effective control over the maker of the statement;

….

In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in

deciding whether a person is to be considered the author, editor or publisher of a statement.

(4) Employees or agents of an author, editor or publisher are in the same position as their employer or

principal to the extent that they are responsible for the content of the statement or the decision to publish it.

121

duty on a broadcaster “when a potentially defamatory statement has been made, to seek,

as soon as practicable to minimise the impact of what has happened”. It expressed the

view that “a provision of this kind is appropriate, given the practical difficulties which

can attach to live broadcasts” and noted that “there is a clear parallel to be drawn

between internet publications on the one hand, and live broadcasts on the other”.341F

342

 It is in the public interest to have live broadcasts.

 Contributors to live programmes should be responsible for what they say.

 This would be broadly in line with the approach adopted in comparative jurisdictions.

 The National Union of Journalists’ submission requested such a change.

Arguments against

 In Kehoe v. RTE,342F

343

it was found that the broadcaster and live contributor were concurrent

wrongdoers; it could be argued that this strikes an appropriate balance between the

responsibilities of the broadcaster and the contributor and at the same time provides

protection for the right to a good name for individuals.

 It could be argued that providing an exemption for publishers of live broadcasts would

fail to provide sufficient protection for individuals.

 It may make it difficult for individuals to obtain redress where they are defamed on live

broadcasts.

 Broadcasters have not requested this amendment.

Option 2: Do nothing

Arguments in favour

 The arguments against option 1 would apply.

Arguments against

 The arguments in favour of option 1 would apply.

Recommendations

The following option is recommended:

(5) In determining for the purposes of this section whether a person took reasonable care, or had reason to

believe that what he did caused or contributed to the publication of a defamatory statement, regard shall be

had to—

(a) the extent of his responsibility for the content of the statement or the decision to publish it,

(b) the nature or circumstances of the publication, and

342

Report of Legal Advisory Group on Defamation, March 2003 at pp..24-25.

343

[2018] IEHC 340.

122

 Option 1: Provide for an exemption for statements made in live broadcasts by persons

over whom the broadcaster has no effective control, provided that the broadcaster takes

reasonable precautions in advance of the live broadcast, and reasonable care during the

broadcast.

The following option is not recommended:

 Option 2: Do nothing.

3.8 Proposed new defence: satiric or comedic utterance

3.8.1 Main issues raised in course of review

One submission to the review suggested that a new defence of satire or comedic utterance

should be introduced.343F

344

It noted that satire deals with real and living persons and argues that

publishers and broadcasters are constrained by defamation law to edit satire. It also argues that

the current law requires a comedian to have journalistically established a fact before they can

write jokes about those facts. It noted that in the UK, in Burchill v. Berkoff, 344F

345

one judge in the

Court of Appeal stated that “chaff and banter are not defamatory, and even serious imputations

are not actionable if no one would take them to be meant seriously”. The submission noted

that it is possible that comedians and satirists would find the Irish courts amenable to a defence

such as this, but argues that the lack of such a defence being codified means it is unpredictable

and that the threat of litigation looms.

3.8.2 Comparative Perspectives

There is no specific statutory defence for satire or comedy under defamation law in England

and Wales, Northern Ireland, Scotland, Australia or New Zealand.

The European Court of Human Rights’ Guide on Article 10 of the European Convention on

Human Rights notes:

The Court has observed on several occasions that satire is a form of artistic expression

and social commentary which, by its inherent features of exaggeration and distortion of

reality, naturally aims to provoke and agitate. Accordingly, any interference with the

right of an artist – or anyone else – to use this means of expression should be examined

with particular care (Welsh and Silva Canha v. Portugal [2013] ECHR 826 (App no.

16812/11); Eon v. France [2013] ECHR (App no. 26118/10); Alves Da Silva v Portugal

[2009] ECHR (App no. 41665/07); Vereinigung Bildender Künstler v. Austria, [2007]

ECHR (App no. 68354/01); Tuşalp v Turkey [2012] ECHR (App no. 41617/08);

Ziembiński v. Poland (no. 2) [2016] ECHR (App no. 1799/07) .345F

346

The Guide also notes:

344

Crowley Millar Solicitors.

345

[1996] 4 All ER 1008, [1997] EMLR 139.

346

European Court of Human Rights, Guide on Article 10 of the European Convention on Human Rights, 1

edn

– 31 March 2020, at para. 179, https://www.echr.coe.int/Documents/Guide_Art_10_ENG.pdf.

123

The Court … distinguishes between statements of fact and value judgments in cases

involving satire. With regard to a satirical article concerning an Austrian skier who

allegedly expressed satisfaction at an injury sustained by one of his rivals, the Court

concluded that the comment in question amounted to a value judgment, expressed in the

form of a joke, and remains within the limits of acceptable satirical comment in a

democratic society (Nikowitz and Verlagsgruppe News GmbH v. Austria).346F

347

Therefore the ECHR provides a high level of protection for satire but protection is not unlimited

e.g. in a dissenting opinion in Ziembiński v. Poland (no. 2),347F

348

it was stated that

“the fact of being satire cannot represent such a privilege that it can, in itself, absolve

the author of any responsibility for the words and phrases employed in the publication.

The fact of being satire is not absolution. There are satire that can be tolerated

and satire that simply cannot be tolerated. This applies equally to a joke, a comedy, a

grotesque, a lampoon, a parody, a caricature, an internet meme... the list can be

extended. True, the limits of admissibility of language (and images) in these genres are

very broad, even exceptionally broad, but they are by no means non-existent.”

Similarly in a partly dissenting opinion in Dickinson v. Turkey,348F

349

it was stated that

“(i)t is clear that the Convention does not protect gratuitous insults (see Palomo Sanchez

and Others v Spain [2011] IRLR 934 (App No 28955/06, 28957/06, 28959/06 and

28964/06); Janowski v Poland ECHR 1999-I (2);Lešník v Slovakia [2003] ECHR 124

(App no 35640/97) ; Vitrenko and Others v. Ukraine [2008] ECHR (App. no. 23510/02)

; Annen v Germany (No 6) [2018] ECHR (App no. 3779/11); Prunea v Romania [2019]

ECHR (App no. 47881/11) . Moreover, as an artist, the applicant does not escape the

possibility that his rights might be restricted, as provided in Article 10 § 2. Anyone who

avails himself of freedom of expression assumes, in the words of that paragraph, “duties

and responsibilities”, the extent of which depends on the situation and the process used”.

3.8.3 Option for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following option was identified:

 provide for a statutory defence of satiric or comedic utterance.

Arguments in favour

 The possibility of a defamation action should not act as a censor on comedians and

satirists.

Arguments against

 If the statement is understood as being a satiric or comedic utterance, it should not injure

a person’s reputation and should therefore not amount to defamation.

347

ibid at para. 196

348

Joint dissenting opinion by Judges WOJTYCZEK AND KŪRIS [2016] ECHR 607 (05 July 2016)

349

2021] ECHR (App no. 25200/11). Partly concurring and partly dissenting opinion of Judge Yuksel.

124

 It would be difficult to define satiric and comedic utterances; too broad a definition could

mean that a person who has been defamed would have no redress, while too narrow a

definition could limit the scope of the defence of satire and comedy.

 There is a danger that such a defence could result in a failure to adequately protect an

individual’s right to a good name as there is a danger that such a defence could be abused.

 None of the other comparative jurisdictions examined for the purposes of this review

have such a statutory defence.

Recommendation

The following option is recommended:

 It is recommended that the 2009 Act should not be amended to provide for a statutory

defence of satiric or comedic utterance.

125

Chapter 4: Court jurisdiction and procedures

4.1 Court jurisdiction

4.1.1 Current Legal Position

In general, defamation actions may be initiated in either the Circuit Court or High Court. The

District Court does not have jurisdiction to deal with defamation cases.349F

350

There are some differences between the jurisdictions of the High Court and Circuit Court:

 the maximum damages that can be awarded by the Circuit Court is €75,000 (whereas

there is no limit on the amount of damages that may be awarded by the High Court);

 Circuit Court actions are heard by a judge sitting alone (whereas High Court actions are

heard by a jury, but the entitlement to a jury may be waived if the parties agree);

 section 28(1) of the Act provides that a person who claims to be the subject of a statement

that he/she alleges is defamatory may apply to the Circuit Court for an order that the

statement is false and defamatory of him/her (declaratory order);

 a number of sections provide for action to be initiated in the High Court unless

proceedings have already been brought i.e. section 23 (offer to make amends) and section

33 (order prohibiting publication of a defamatory statement); and

 the plaintiff may decide whether a Circuit Court case is to be heard by the judge of the

circuit where the tort is alleged to have been committed, or by the judge of the circuit

where the defendant, or one of the defendants, resides or carries on business (section 41).

4.1.2 Court Statistics

Under section 41 of the 2009 Act, the jurisdiction of the Circuit Court in defamation cases was

increased to allow an award of up to €50,000.350F

351

Part 3 of the Courts and Civil Law

(Miscellaneous Provisions) Act 2013 further increased this monetary limit to €75,000. This

measure was intended to reduce legal costs by allowing more defamation actions to be taken

outside of the High Court.

Three trends are noticeable in the Courts Service statistics for defamation cases over the period

2014-2020:

Overall numbers

The overall number of defamation cases initiated in the courts each year is small, relative to

other areas of litigation such as personal injuries (with which defamation is often compared).

This is an important consideration, in that the number of defamation cases does not seem

sufficiently large to merit setting up a specialised court or quasi-judicial body.

350

Section 77 of the Courts of Justice Act 1942 (inserted by section 4(a) of the Courts Act 1991) as amended by

section 7(1) of the 2009 Act.

351

Section 41 inserts a new number 7A in the Third Schedule of the Courts (Supplemental Provisions) Act 1961,

to include a defamation action where the amount of the claim does not exceed €50,000.

126

Court Service statistics indicate that over the seven years 2014-2020, the total number of cases

where either Circuit Court or High Court defamation proceedings were issued, is 1,885 – an

average of 269 cases per year in total.

In comparison, the total number of personal injuries cases initiated in the Courts over the four

years 2017-2020 was 84,257 – a (very consistent) average of 21,064 cases per year.351F

352

Increasing numbers in Circuit Court

Court Service statistics indicate a steady increase in the number of defamation actions initiated

in the Circuit Court since 2014. Over the seven year period 2014-2020, the total number of

cases is 707 (an average of 101 per year). There is a steady overall progression, from 25 cases

in 2014, to 161 in 2020. (It has been suggested that the increased frequency of online

defamation may account for this increase.)

High Court numbers remain fairly stable

Conversely, the number of actions initiated in the High Court has remained more or less at the

same general level as 2014, although the numbers fluctuate from year to year with no clear

trend. The total number of High Court cases initiated in the seven-year period 2014-2020 was

1,178 - an average of 168 cases per year. There were 182 cases initiated in 2014, and 156

initiated in 2020.

Very low resolution rate

The most noticeable feature is the apparently low resolution rate. According to the Courts

Service figures, the number of cases before the courts that are resolved each year (either by the

Court itself, or by negotiations between the parties outside court) remains a very small

proportion of the numbers of new cases where court proceedings are issued. The most striking

example is 2018, where the High Court decided 7 defamation cases, and saw 14 more settle –

but received 186 new defamation cases.

It is also noticeable that High Court cases appear three times as likely to settle, as to be decided

by the court.

352

Personal injuries figures taken from the Courts Service Annual Reports, available at:

https://www.courts.ie/annual-report. The annual figures are as follows: 2017: total 22,417 cases (High Court

8,909: Circuit Court 12,497: District Court – 1,011). 2018: total 22,049 cases (High Court: 8,889; Circuit Court

12,193; District Court 967). 2019: total 21,981 cases (High Court 7,987; Circuit Court 12,878; District Court

1,116). 2020; total 17,810 cases (High Court 6,682; Circuit Court 10,083; District Court 1,045).

127

Defamation - Circuit Court Cases352F

353

Resolved

Year

Incoming

By Court

Out of

Court

2014

2015

2016

2017

135

2018

112

2019

151

2020

161

Totals

707

60 (8% )

40 (6%)

Defamation - High Court Cases353F

354

Resolved

Year

Incoming

By Court

Out of Court

2014

182

2015

212

2016

133

2017

152

2018

186

2019

157

2020

156

Totals

1,178

74 (6%)

196 (17%)

353

Courts Service Annual Report 2014, p.43, available at: https://www.courts.ie/acc/alfresco/a4d65572-956f-

4a95-9ec9-922cd5643220/Courts%20Service%20Annual%20Report%202014.pdf/pdf#view=fitH; Courts

Service Annual Report 2015, p. 40, available at: https://www.courts.ie/acc/alfresco/fad543b7-103e-4efb-aa33-

1840de87ff9d/Courts%20Service%20Annual%20Report%202015.pdf/pdf#view=fitH; Courts Service Annual

Report 2016, p. 45: https://www.courts.ie/acc/alfresco/6ca3d890-65b0-4974-87ff-

271c68ad7c18/Courts%20Service%20Annual%20Report%202016.pdf/pdf#view=fitH; Courts Service Annual

Report 2017, p. 52, available at: https://www.courts.ie/acc/alfresco/4ef7111f-52fe-4ee5-a2c4-

adc7e1d7db7a/Courts%20Service%20Annual%20Report%202017.pdf/pdf#view=fitH; Courts Service Annual

Report 2018, p.54, available at: https://www.courts.ie/acc/alfresco/d3167a7a-2b47-4fc2-b654-

6e657df2a01d/Courts%20Service%20Annual%20Report%202018.pdf/pdf#view=fitH; Courts Service Annual

Report 2019, p. 53, available at: https://www.courts.ie/acc/alfresco/9bd89c8a-3187-44c3-a2e9-

ff0855e69cb5/CourtsServiceAnnualReport2019.pdf/pdf#view=fitH. Percentages in the table here are rounded to

the nearest whole number. Courts Service Annual Report 2020, p. 48, available at:

https://www.courts.ie/acc/alfresco/b47652ff-7a00-4d1f-b36d-

73857505f860/Courts_Service_Annual_Report_2020.pdf/pdf#view=fitH.

354

Courts Service Defamation Statistics - High Court 2014-2020, see note above.

128

4.1.3 Main issues raised in course of review

A number of submissions expressed the view that the extension of the Circuit Court’s

jurisdiction and increase in cases taken in that court, had been positive and useful for addressing

the efficiency and costs of certain types of defamation actions, particularly those seeking

vindication of reputation as opposed to damages.354F

355

There was some caution expressed as to

the risks involved in seeking declaratory orders at the expense of further actions or awards, as

something which might be constraining greater use of this form of redress.355F

356

A lack of

transparency and visibility in the keeping of records of proceedings and the lack of written

Circuit Court judgments were highlighted by some as areas which could be improved.356F

357

terms of possible actions, submissions variously proposed that:

 no action for defamation should lie in the High Court except by way of appeal from a

decision of the Circuit Court;

 consideration should be given to hearing defamation actions in the Circuit Court where

plaintiffs have indicated a limit on the damages they are expecting;

 consideration should be given to hearing defamation actions where large amounts of

damages are being sought in the Commercial Court Division of the High Court;

 it should be possible to make an appeal from a decision of the Circuit Court to the High

Court either on the question of defamation itself, or, on the amount of damages awarded

to any plaintiff in the Circuit Court;

 any variation of a Circuit Court decision on appeal to the High Court in relation to the

quantum of damages awarded in the Circuit Court should be decided by the High Court

judge alone;

 a register of all defamation awards and settlements should be established;

 there should be a statutory ban on any settlement term which inhibits or restricts future

publication of certain matters.

Two submissions to the review following the Symposium suggested that defamation actions

should be initiated in the Circuit Courts rather than the High Court.357F

358

One submission

following the Symposium suggested that it should be possible to legislate for a summary

disposal mechanism for claims in which publication is limited, whereby a financial limit to

jurisdiction would be imposed, such that access to justice would be maintained but there would

be reasonable limits to the costs that may be incurred by defendants defending such claims and

to the damages payable to the plaintiff.358F

359

355

Johnsons Solicitors, Law Society, K. Fitzpatrick, William Fry.

356

Johnsons, K. Fitzpatrick, William Fry.

357

H O’Driscoll, K. Fitzpatrick.

358

Press Ombudsman,Professor J Horgan.

359

McCann Fitzgerald.

129

4.1.4 Options for reform

Based on the submissions received, the following options were identified:

 require all cases to be initiated in Circuit Court;

 provide that defamation actions should be initiated in the Circuit Court where the plaintiff

has indicated a limit on the damages he/she is expecting;

 introduce a summary disposal mechanism for lower-value defamation claims;

 provide for defamation actions where large amounts of damages are being sought to be

dealt with in the Commercial Court Division of the High Court

 provide that it should be possible to make an appeal from the Circuit Court to the High

Court either on the question of defamation itself, or, on the amount of damages and that

the judge should be able to vary the amount of damages awarded;

 provide for the establishment of a register of all defamation awards and settlements;

 introduce a statutory ban on any settlement term which inhibits or restricts future

publication of certain matters.

Option 1: Require all cases to be initiated in Circuit Court

Arguments in favour

 Requiring cases to be initiated in the Circuit Court would reduce the costs associated with

High Court defamation cases.

Arguments against

 This proposal would give rise to constitutional issues that would require careful

consideration. There is currently a limit of €75,000 on the amount of damages that may

be awarded by the Circuit Court in defamation actions. Retaining that limit would impose

a cap on damages; bearing in mind the level of awards in defamation actions, it is unlikely

that the imposition of such a cap would satisfy the constitutional requirement under

Article 40.3.2 i.e. the obligation on the State by its laws to “protect as best it may from

unjust attack and, in the event of injustice done vindicate the …. good name … of every

citizen”.

On the other hand, any proposal to remove the limit on the level of damages that can be

awarded by the Circuit Court could give rise to concerns that the court was being given

powers beyond what is appropriate for a court of local and limited jurisdiction.

 This proposal would be inconsistent with the law in relation to other torts, e.g. personal

injuries cases, which can be initiated in the Circuit Court or High Court depending on the

seriousness of the injury/level of damages being sought.

Option 2: Provide that defamation actions should be initiated in the Circuit Court where the

plaintiff has indicated a limit on the damages he/she is expecting

Arguments in favour

130

 Requiring cases where the plaintiff has indicated a limit on the damages that he/she is

expecting to be initiated in the Circuit Court would reduce the costs associated with High

Court defamation cases.

Arguments against

 A plaintiff already has the option to initiate defamation proceedings in the Circuit Court

where he/she considers that damages not exceeding €75,000 would provide adequately

compensation for the damage caused to his/her reputation should the court find that

he/she had been defamed.

 The arguments against the proposal to provide that all cases should be initiated in the

Circuit Court would apply.

Option 3: Introduce a court-based summary disposal mechanism for lower-value defamation

claims

The scope for such a mechanism would be limited, bearing in mind the constitutional right of

access to the courts and to protection of good name359F

360

. But this might be possible for cases

where damages sought by the plaintiff fall below a specified modest maximum ceiling.

Arguments in favour

 The advantage for both parties and for the courts is that such cases could by agreement

be resolved summarily so that costs are kept at reasonable and proportionate levels.

Arguments against

 Given the constitutional constraints, this would need careful thought and design.

Option 4: Provide for defamation actions where large amounts of damages are being sought

to be dealt with in the Commercial Court Division of the High Court

Arguments in favour

 There are no obvious arguments in favour of this proposal.

Arguments against

 Defamation is a tort and should be treated in the same way as other tort actions e.g.

personal injuries cases.

 The rationale for this proposal is not clear.

Option 5: Provide that it should be possible to make an appeal from Circuit Court to High

Court either on the question of defamation itself, or, on the amount of damages and that the

judge should be able to vary the amount of damages awarded

Arguments in favour

360

Gilchrist & Rogers v Sunday Newspapers, Court of Appeal, Finlay-Geoghegan J, above.

131

 There are no obvious arguments in favour of this proposal.

Arguments against

 This amendment is not necessary. Under Article 34.3.1° of the Constitution, the High

Court has “full original jurisdiction in and power to determine all matters and questions

whether of law or fact, civil or criminal”.

Option 6: Provide for the establishment of a register of all defamation awards and

settlements

Arguments in favour

 This proposal would lead to increased transparency in relation to defamation awards and

settlements.

Arguments against

 Establishing a register of settlements would likely create legal difficulties and would

depart from normal practice in other areas.

 Defamation cases decided in court are reported publicly in the media and written

judgments (where issued) are published on the Court Services website.

 Defendants may be reluctant to agree to settlements as publication of the settlement might

create a precedent for future settlements.

 This proposal would impose a considerable administrative burden on the body designated

to establish and maintain the register.

Option 7: Introduce a statutory ban on any settlement term which inhibits or restricts future

publication of certain matters

Arguments in favour

 This proposal would result in increased transparency.

Arguments against

 This proposal would seem to raise legal difficulties as it would constrain the rights of

private parties when settling proceedings.

Recommendations

Provided that there are no constitutional constraints, the following option is recommended:

 Option 3: Introduce a court-based summary disposal mechanism for lower-value

defamation claims

The following options are not recommended:

132

 Option 1: Require all cases to be initiated in Circuit Court;

 Option 2: Provide that defamation actions should be initiated in the Circuit Court where

the plaintiff has indicated a limit on the damages he/she is expecting;

 Option 4: Provide for defamation actions where large amounts of damages are being

sought to be dealt with in the Commercial Court Division of the High Court;

 Option 5: Provide that it should be possible to make an appeal from Circuit Court to High

Court either on the question of defamation itself, or, on the amount of damages and that

the judge should be able to vary the amount of damages awarded;

 Option 6: Provide for the establishment of a register of all defamation awards and

settlements;

 Option 7: Introduce a statutory ban on any settlement term which inhibits or restricts

future publication of certain matters.

4.2 Jury trial

4.2.1 Current legal position

4.2.1.1 High Court

The right to trial by jury in defamation proceedings was expressly preserved by section 48 of

the Supreme Court of Judicature (Ireland) Act 1877.360F

361

The Courts of Justice Act 1924 (section

94), which established the court structure for the new Irish State, preserved the right to jury

trial in the courts of the Irish Free State, where such right already existed in civil proceedings.

The Courts Act 1988 abolished juries for most civil actions (e.g. personal injuries) but did not

do so for defamation actions. Moreover, the 2009 Act expressly retained juries in High Court

defamation cases.

In accordance with the Superior Court Rules (Order 36 Rule 6), a party serving notice of trial

in a High Court defamation action is entitled to opt for trial without a jury unless the other

party/any of the other parties object(s).361F

362

The role of the jury in such actions is to decide questions of fact (including quantum of

damages); the judge decides questions of law.

4.2.1.2 Circuit Court

The Courts Act 1971 (section 6) abolished jury trials in all civil cases in the Circuit Court. The

2009 Act retained this position, but the Circuit Court was given a new expanded jurisdiction in

damages362F

363

to enable it to deal with a larger range of defamation cases at lower cost to the

parties than the High Court.

361

Higgins v. The Irish Aviation Authority: White v. Sunday Newspapers Limited [2018] IESC 29 [2018] 3 IR

374. Judgment by Dunne J, para. 45

362

The Superior Court Rules, provide as follows, at Order 36:

“5. All causes or matters, which the parties are not entitled as of right to have tried with a jury, shall be

tried by a Judge without a jury, unless the Court shall otherwise order.

6. In all cases not within rule 5, the party serving notice of trial shall state in such notice whether he

requires that the issues of fact shall be tried with or without a jury, and in case he requires the same to be

tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall

within fourteen days from the service of notice of trial, or within such time as the Court may allow, signify

his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.”

363

Up to €50,000 under the 2009 Act. This was increased to €75,000 by the Courts and Civil Law (Miscellaneous

Provisions) Act 2013.

133

4.2.2 Main issues raised in course of review

There was a general consensus amongst the submissions received, that the role of juries in High

Court defamation cases should be reformed. The majority of submissions in relation to the role

of juries recommended that High Court defamation cases should be tried by a judge sitting

alone without a jury.363F

364

A range of other submissions recommended that juries should be

retained on an opt-in basis in a similar manner to that adopted in England and Wales under the

Defamation Act 2013.364F

365

Alternatively, a range of submissions recommended that juries should

be retained for questions of liability, but removed from questions relating to the quantum of

damages.365F

366

One submission following the Symposium suggested that juries should be

abolished in defamation actions or, if juries are to be retained, their role should be restricted to

determining if a defamation has taken place and the determination of the award of damages

should be made by the judge.366F

367

One submission367F

368

to the review following the Symposium recommended that jury trials should

be retained for defamation claims subject to two caveats (i) active case management to reduce

the scope for parties to raise and seek to have determined legal issues regarding the pleadings

at the trial (requiring such issues to be raised and determined at the interlocutory stage would

significantly enhance the efficiency of jury trials);368F

369

and (b) uncertainty regarding damages

would be significantly addressed if parties were permitted to suggest a range of appropriate

damages for consideration by the jury.369F

370

In order to help address problems with delays in

progressing cases, it recommended the introduction of an express statutory jurisdiction to

dismiss claims where there has been no proceeding within 2 years of issuing proceedings unless

special circumstances exist, and a requirement that defamation plaintiffs must proceed with

due expedition to deal with stagnant claims. Any such change would not disadvantage plaintiffs

who proceed with claims within a reasonable timeframe, but would significantly assist

defendants who have no option but to budget for and manage the risks of claims that are not

progressed.370F

371

Professor Neville Cox, in his presentation to the Symposium on Reform of Defamation Law,

noted that arguments can be put forward both in favour and against retention of juries in High

Court defamation cases. The following is a summary of his main points371F

372

“(A) judge will have experience and intuitive understanding of the kinds of quantum of

damages that tend to be awarded in civil actions generally and thus will have a

364

Public Relations Ireland, William Fry, Business Journalist’s Association, Independent News and Media, MGN

Ltd, H O’ Driscoll, NewsBrands Ireland, Local Ireland, Google.

365

Department of Communications, Climate Action and Environment, Law Society of Ireland, Crowley & Millar

Solicitors, Dr. Eoin O’ Dell (Trinity College), MGN Ltd., NewsBrands Ireland.

366

Irish Times, NewsBrands Ireland, Press Council, ICCL (following Symposium).

367

Press Ombudsman

368

McCann Fitzgerald.

369

See under case management.

370

See chapter 6 regarding damages.

371

See under case management.

372

See: Prof. Neville Cox, (Trinity College Dublin), ‘Irish defamation law: the 2009 Act and the need for

reform’. (Download PDF) at

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf.

134

perspective of what a ‘large award’ should mean. A jury simply does not have this

perspective …”

Many legal practitioners point to uncertainty in relation to outcomes generated by jury

trials; this uncertainty “impacts on both sides in a defamation case and is a strong

incentive to settle cases”.

Defamation is an “unusually societal-focused” tort; it seeks to protect and vindicate

people from loss of reputation in society; it requires 12 members of society to make the

key factual judgments in these cases. On the other hand, it can be argued that the same

concerns arise in other civil actions: so if a judge can be trusted to determine facts in

these kinds of cases, why not in defamation cases?

Professor Tarlach McGonagle pointed out that the ECtHR’s message in relation to the use of

juries in defamation cases is clear: “clear and comprehensive judicial guidance to juries is a

very important safeguard against arbitrary and/or disproportionate awards of damages which

could have a chilling effect on freedom of expression”.

Arguments in favour of removing juries

The arguments put forward in favour of removing or restricting the role of juries in High Court

defamation cases can be broadly grouped as follows:

Costs and damages372F

373

The use of juries results in longer trials, and higher damages and legal costs.

The potential of incurring very high legal costs and damages can lead to the settlement of cases

at an early stage, even where there is a good defence. The potential to receive high levels of

damages encourages plaintiffs to seek legal advice in the first instance rather than seek

alternative remedies which reduces the effectiveness of the informal resolution and redress

system offered by the Press Council and Press Ombudsman. High levels of jury awards have

increased the expectation for all complainants as to the level of damages; this makes it more

difficult to negotiate with a plaintiff’s advisers within the defendant’s advisers’ assessment of

the value range of the claim.

A trial by jury lengthens considerably the time taken to run a case which increases costs and is

wasteful of court resources. The wait to have a date set for a hearing (as civil juries are only

empanelled for a portion of each court term) and adjournments due to the availability of courts

with civil juries add many months, often years, to the proceedings. The need to explain legal

arguments to juries can also result in longer trials. McDonagh v. Sunday Newspapers373F

374

was

cited as an example of the extremely long time periods that a defamation case can take. The

article complained of in that case was published in September 1999 and the Supreme Court

decision was issued in July 2017 (the parties settled the case minutes before the Court delivered

its judgments). Such a long time span does not do justice to the plaintiff or the defendant. A

plaintiff who is defamed should be entitled to have his/her good name vindicated as early as

possible, while delays and the treat of sizeable damages and legal costs exert a chilling effect

on the right to free speech.

373

Department of Communications, Climate Action and Environment, Independent News & Media, Irish Times,

Local Ireland, MGM Ltd, NewsBrands Ireland, Ronan Daly Jermyn.

374

[2017] IESC 59.

135

Unpredictability and lack of transparency374F

375

A jury trial is not transparent as the jury doesn’t give reasons for its determination. Trial by a

judge alone allows for more reasoned decisions and awards. An appeal against a verdict is

highly likely where the verdict is not explained and falls outside the expected outcome of the

parties; this results in further delay, costs and uncertainty.

A jury trial is unpredictable; the unpredictability of outcomes means that publishers often

cannot take the risk to publish, resulting in a “chilling effect” on the media’s role as the

watchdog for a democratic society. Moreover, the absence of predictability undermines faith

in the system and the ability to conclude litigation, due to the incidence of appeals against jury

verdicts. Jury unpredictability gives a plaintiff negotiating leverage disproportionate to the

merits of the case.

The unpredictability of decisions on liability and damages and the length of the process make

legal costs unnecessarily punitive and prohibitive.

The lack of transparency and an element of unpredictability could be alleviated if the award of

damages was made by a judge and accompanied with a statement explaining the judicial logic

for the decision.

Complexity of defamation law375F

376

Defamation law has become technical and complex; it is difficult for jurors in certain situations

to understand complex legal and technical arguments (e.g. defences of honest opinion, fair and

reasonable publication, public interest). Making legally nuanced defences in this complex area

of law requires the application of specialised knowledge such as can be more appropriately

provided by judges sitting without a jury. Jury decisions can act as a deterrent to defendants

running important, but complex lines of defence.

Juries are not qualified to balance conflicting constitutional rights: the right to good name vis-

a-vis the right to freedom of expression.

The abolition of jury trials would facilitate the hearing of preliminary issues on meaning; clarity

about the meaning of the statement complained about might assist in the resolution of a case.

The jury system does not allow for reasoned decisions that refine the law and provide greater

clarity on the judicial interpretation of this complex area of law.

Other arguments

Retention of jury trials in High Court defamation cases is inconsistent with the abolition of

juries for all other High Court civil cases, except for civil assaults, and with the abolition of

juries in Circuit Court actions.376F

377

375

Department of Communications, Climate Action and Environment, Independent News and Media, Irish

Times, Local Ireland, MGM Ltd, NewsBrands Ireland.

376

Department of Communications, Climate Action and Environment, Independent News & Media, Local

Ireland, MGM Ltd, H O’Driscoll.

377

MGM Ltd, Eoin O’Dell.

136

Juries are not representative of Irish society generally as High Court defamation actions are

invariably tried in Dublin so that juries are in fact selected from Irish citizens within the Dublin

borough.377F

378

A person’s good name would be no less vindicated by a verdict of a judge than by a verdict of

a jury. 378F

379

The primacy of juries has been removed in England and Wales (Defamation Act 2013).379F

380

opt-in jury system would be compatible with the constitutional protection of one’s good

name.380F

381

Arguments in favour of retaining juries

The following arguments were made in favour of the retention of juries in High Court

defamation actions:

 the role of the jury in the award of damages in defamation cases is embedded in our legal

system,381F

382

and improves access to justice by placing citizens at the heart of the justice

system;382F

383

 juries are best placed to determine what “an ordinary reasonable reader” would have

understood the words to mean;383F

384

to act as arbiters of community standards on what is

defamatory and to assess the impact of a defamatory statement on the plaintiff;384F

385

and to

act as a deterrent to the more extreme excesses of the media;385F

386

 plaintiffs get comfort from a vindication of their good names by their peers;

386F

387

and

 the risk of excessive and disproportionate awards of damages (which may be punitive

rather than compensatory in nature) could be reduced by providing for a mechanism for

the judiciary to issue more detailed guidance to a jury on the range of damages

permissible.387F

388

One submission following the Symposium expressed the view that the key risk in abolishing

juries is that a ‘respectability’ threshold enters the frame, with digital media, tabloid journalism,

‘entertainment’ media and other non-traditional forms of content generation placed at an

unconscious disadvantage. Juries are a leveller.388F

389

378

MGM Ltd.

379

Independent News & Media, MGM Ltd.

380

Crowley Miller Solicitors, Eoin O’Dell.

381

Department of Communications, Climate Action and Environment, NewsBrands Ireland.

382

Joint Oireachtas Committee on Justice and Equality.

383

Johnsons Solicitors.

384

Johnsons Solicitors.

385

Department of Communications, Climate Action and Environment, Law Society on behalf of solicitors.

386

Law Society, anonymous solicitor(s).

387

Department of Communications, Climate Action and Environment, NewBrands.

388

Johnsons Solicitor.

389

McCann Fitzgerald.

137

4.2.3 Comparative Perspectives

In England and Wales, section 11 of the Defamation Act 2013 (2013 Act) removed the

presumption of trial by jury in defamation cases as envisaged under section 69 of the Senior

Courts Act 1981. Courts now have the discretion to order a jury trial but there is no requirement

to do so. The rationale for this change was to provide judges with greater scope to achieve an

early resolution of cases in an expeditious manner that is more economical. According to

research undertaken by the Scottish Law Reform Commission on this question, the prevailing

view amongst specialist practitioners in England and Wales is that the occasions on which the

court will exercise its discretionary power to order trial by jury are likely to be “extremely rare”

and confined to cases in which the defendant is a public authority, or where the position of the

claimant gives rise to a risk of involuntary bias on the part of the trial judge. Factors militating

against trial by jury are seen as including: the advantages of a reasoned judgment;

proportionality; and the promotion of effective case management.

389F

390

Where a defamation case is heard by a jury in England and Wales, the jury retains its role in

assessing the amount of damages.390F

391

Both parties can make submissions to the jury on the

appropriate level of awards and judges may provide guidance to the jury on the levels of

damages that have been awarded in previous cases and the set penalties for various personal

injury awards.391F

392

In Scotland, the Defamation and Malicious Publication (Scotland) Act 2021392F

393

provides for

the removal of the presumption that proceedings are to be tried by jury. The Policy

Memorandum on the Bill (as initiated) explains the rationale for this proposal as follows:

Courts currently do not have the discretion to choose the form of factual enquiry most

appropriate to the circumstances of individual cases. By removing the presumption [of

trial by jury], the Bill increases the ability of courts to effectively manage defamation

claims according to their particular circumstances, thereby reducing the costs of an

action on all sides. Where appropriate courts will retain a discretion to order trial by

jury.393F

394

In Northern Ireland, it was noted in the report on Reform of Defamation Law in Northern

Ireland 394F

395

that the issue in relation to whether juries should be retained is finely balanced. The

report contains a provisional recommendation that a measure equivalent to section 11 of the

Defamation Act 2013 should be introduced in Northern Ireland.

In Canadian defamation trials, the role played by the jury varies from state to state. In the

majority of jurisdictions, parties must make a request in advance if they want the case to be

tried by a jury but courts may refuse this request if the trial will require prolonged investigation

of evidence. In British Columbia parties may request a jury and this request cannot be turned

down. In Manitoba and Nova Scotia the default situation is trial by jury which can only change

390

Report on Defamation (2017), Scottish Law Reform Commission, p. 79.

391

Defamation Act 2013 section 11.

392

ibid.

393

https://www.legislation.gov.uk/asp/2021/10/enacted

394

Defamation and Malicious Publication (Scotland) Bill (as initiated), Policy Memorandum, p.22.

https://www.parliament.scot/-/media/files/legislation/bills/current-bills/defamation-and-malicious-publication-

scotland-bill/introduced/policy-memorandum-defamation-and-malicious-publication-scotland-bill.pdf .

395

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, Dr Andrew

Scott (2016).

138

if all parties consent to having a case heard by a judge alone. In Saskatchewan, any party may

request a jury but they are responsible for paying the full cost of using the jury. In Quebec,

juries in civil cases were abolished in 1976. In Ontario, defamation actions are generally treated

like any civil action, with a presumption that a trial will be by judge alone unless a party

requires otherwise. However, the Libel and Slander Act contemplates a role for juries in

defamation actions. The Law Commission of Ontario’s report on Defamation Law in the

Internet Age notes that the number of defamation actions that proceed to jury trial is low and

the number of actions determined by juries is even lower. The report recommends that the

current law should not be changed.

In Australia, section 21 of the Model Defamation Provisions provides that, for jurisdictions

that permit jury trials for defamation claims (all except South Australia, the Australian Capital

Territory and the Northern Territory), a plaintiff or defendant in defamation proceedings may

elect to have a jury trial but courts may order otherwise on the grounds that the case will require

prolonged examination of records, or that the evidence may be too technically complicated for

the jury to easily understand. This provision has been interpreted as meaning that an order must

not be made on the court’s own motion, but only on the application of a party.

The question of amending section 21 was considered in the context of a review of the Model

Defamation Provisions. Stakeholders were asked if section 21 should be amended to clarify

that the court could dispense with a jury on application by the opposing party or on the court’s

own motion, where the court considers doing so would be in the interests of justice (which

could include case management considerations). The issue of whether an opposing party should

be able to apply to dispense with a jury trial in the interests of justice is regarded as one to be

addressed in each jurisdiction’s civil procedure rules. Most stakeholders opposed amending

section 21 to allow an order to dispense with a jury trial to be made on the court’s motion; they

were of the view that the current provision strikes an appropriate balance between the two

competing issues of the right to trial by jury and case management considerations. They noted

that juries play an important role, and that the right to elect for a jury trial should not be

overridden by case management considerations. The Model Defamation Amendment

Provisions 2020395F

396

retain the current provisions in relation to when a court may order that

defamation proceedings are not to be tried by a jury. The 2020 Provisions provide however that

an election not to have a jury trial may be revoked where all the parties consent or with the

leave of the court; such leave can be granted only if the court is satisfied that it is in the interests

of justice for the election to be revoked.

In New Zealand, plaintiffs or defendants may apply to have their case heard by a jury, but a

court can refuse on the grounds that the evidence is likely to be complex or time-consuming to

examine.396F

397

If the case is heard by a jury, the jury determines the damages to be awarded.

4.2.4 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 abolish juries in defamation cases;

396

The Model Defamation Amendment Provisions were approved by the Counsel of Attorneys-General on 27

July 2020 and must now be enacted into the law of each state and territory.

397

New Zealand, Defamation Act 1992, section 36.

139

 remove presumption of jury trials (subject to discretion of courts to order jury trial in

appropriate cases);

 retain juries on questions of liability but remove juries from the decision on quantum of

damages;

 make no change in relation to the role of juries in High Court actions.

Option 1: Abolish juries in defamation cases

Arguments in favour

 Jury trials are costly, result in delays in the hearing of cases and longer cases: civil juries

are only empanelled for a portion of each court term; it is necessary to explain the law to

juries in order to enable them to determine questions of fact; many defamation cases take

years before they reach a final conclusion (see for example the McDonagh case referred

to above). While some of the delay in reaching court may be caused by the parties, it is

fair to assume that much of it is caused by the need for a jury trial e.g. both sides expected

the Higgins case to last four days, but it took seven.397F

398

Removing the jury from defamation actions would therefore promote more effective case

management strategies and would allow for more efficient disposal of actions which

would in turn reduce costs. It “would make our defamation system fairer, quicker and

more accessible”.398F

399

 Jury trials result in lack of transparency and unpredictability about outcomes: the lack

of reasoned judgments in jury trials results in lack of transparency in relation to the

jury’s reasoning for adopting their decision, the factors they took into account, etc.

While the outcome of a legal dispute can never be predicted, the lack of reasoned

judgments in jury cases makes it more difficult for legal practitioners to advise their

clients in relation to the possible outcome of their case which may militate against

settlement of disputes without recourse to the courts. A consequence of jury trials in the

High Court is that “it remains difficult to predict the outcome of defamation cases, both

on questions of liability and on questions of quantum”.399F

400

An appeal against a verdict

is highly likely where the verdict is not explained and falls outside the expected

outcome of the parties.

Removing the jury from defamation actions would therefore generate greater certainty,

consistency and transparency in relation to outcomes.

 Moreover, the unpredictability of outcomes and high level of damages and costs

associated with jury trials mean that publishers often cannot take the risk to publish,

resulting in a “chilling effect” on the media’s role as the watchdog for a democratic

society. These factors may also inflate the settlement value of defamation cases as

398

A& L Goodbody, Time to say goodbye: Why Ireland should remove juries from defamation cases, 10 July

2020, https://www.algoodbody.com/insights-publications/time-to-say-goodbye-why-ireland-should-remove-

juries-from-defamation-cases

399

Ibid.

400

Cox, N. and McCullough, E., Defamation Law and Practice, (Clarus Press, 2014) at para. 1-18.

140

defendants may consider paying an excessive settlement in order to avoid “the lottery of

a jury award”.400F

401

 In accordance with the decision of the ECtHR in Independent Newspapers (Ireland) Ltd

v. Ireland401F

402

, judges are required to give reasons for the quantum of damages. Removing

questions of damages from juries should therefore result in greater consistency, prevent

excessive awards and alleviate any negative implications of excessive damages for

discussion of matters of public interest by the media and others.

 Defamation law is complex and juries are not best placed to balance conflicting

constitutional rights i.e. the right to the protection of one’s good name and the right to

freedom of expression. For example, it has been argued that section 26 of the Act, which

provides for a defence of fair and reasonable publication on a matter of public interest, is

a complex defence requiring the defendant to prove that the statement was published (a)

in good faith, (b) in the course of, or for the purposes of, discussion of a matter of public

interest, the discussion of which was for the public benefit, and (c) that, in all the

circumstances of the case, the manner and extend of publication of the statement did not

exceed that which was reasonably sufficient. A jury may not be best placed to determine

these complex issues.

 The removal of juries might result in early applications for the determination of the actual

meaning of the words complained of becoming commonplace402F

403

and thus obviate the

need for a full hearing. For example, in a case involving Denis O’Brien and Post

Publications Ltd, (relating to an article published in the Sunday Business Post in 2015),

the jury, after a 17 day hearing in early 2019, found that the newspaper’s reports of the

plaintiff’s borrowing did not have the defamatory meaning contended by the plaintiff.403F

404

It has been suggested that this conclusion could have been reached in a preliminary trial

on meaning404F

405

which is provided for in section 14 of the Act.

 The right to a jury trial is not guaranteed by the Constitution, but rather a right conferred

by statute.405F

406

While the courts have consistently acknowledged that under the current

legal framework, the role of juries in defamation actions is sacrosanct, they have also

acknowledged that “(t)here may be other ways of resolving the right to a good name and

the right to inform the public, …., such as entrusting the task solely to a judge in the

High Court…..”406F

407

401

A& L Goodbody, Time to say goodbye: Why Ireland should remove juries from defamation cases, 10 July

2020, https://www.algoodbody.com/insights-publications/time-to-say-goodbye-why-ireland-should-remove-

juries-from-defamation-cases.

402

[2017] ECHR 567 (App no. 28199/15).

403

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, Dr Andrew

Scott (June 2016) at para 2.119. See “Denis O’Brien could face legal bill of up to €1m for lost case” at

404

See “Denis O’Brien could face legal bill of up to €1m for lost case” at

https://www.irishtimes.com/news/crime-and-law/courts/high-court/denis-o-brien-loses-defamation-case-again

405

O’Dell, E, O’Brien’s case should never have reached full trial, Sunday Business Post, 3 March 2019 (available

on cearta.ie).

406

Bradley & Ors (t/a Malcomsom Law) v Maher [2009] IEHC 389.

407

Charleton J. in McDonagh v Sunday Newspapers. [2017] IESC 46.

141

 In Higgins v. Irish Aviation Authority407F

408

, the jury in the High Court was, for the first time

in a defamation action, provided with details of damages awarded in other cases with a

view to guiding them on the amount of damages that should be awarded. Despite this,

the jury awarded the plaintiff €387,000 which was subsequently reduced to €76,500 by

the Court of Appeal (i.e. an 80% reduction). It has therefore been argued that the guidance

given to the jury on other awards – a reform introduced by the Defamation Act 2009 -

did not work in this case.408F

409

 Retention of jury trials in High Court defamation cases is inconsistent with the abolition

of juries for all other High Court civil cases, except for civil assaults. One of the reasons

why the Courts Act 1988 removed the jury from most tort actions was because of the

unsustainably high level of damages awarded by juries in such actions.409F

410

 Juries have already been removed from Circuit Court defamation cases.

Arguments Against

 The role of the jury in defamation cases has long been a feature of, and is embedded in,

the Irish legal system.

 Given the definition of a defamatory statement (i.e. a statement that tends to injure a

person’s reputation in the eyes of reasonable members of society), access to a jury is the

best mechanism to vindicate the right to one’s good name under the Constitution; jury

members are best placed to assess the impact of defamatory statements about a plaintiff

because juries act as arbiters of community standards on what is defamatory.410F

411

 Juries act as a great leveller.411F

412

 With correct instruction and guidance by a judge in relation to the quantum of damages,

the jury is best placed to determine the appropriate level of damage to compensate for

the harm caused by a defamatory statement; section 31 of the 2009 Act provides, for the

first time, that a judge shall give directions to the jury, and that the parties may make

submissions to the court, in relation to damages; it is hoped that this provision will, as

indicated in Kinsella v Kenmare Resources,412F

413

“result in the making of awards which are

not only proportionate to the injury sustained in any individual case but which will also

be proportionate when considered in the context of awards of damages in other

408

Higgins v The Irish Aviation Authority [2016] IEHC 245.

409

A& L Goodbody, Time to say goodbye: Why Ireland should remove juries from defamation cases, 10 July

2020,https://www.algoodbody.com/insights-publications/time-to-say-goodbye-why-ireland-should-remove-

juries-from-defamation-cases.

410

Cox, N. and McCullough, E., Defamation Law and Practice, at para. 11-13.

411

See for example, MacMenamin J (McKechnie J concurring) in McDonagh v. Sunday Newspapers ([2017 IESC

59) where it is noted that “The right to a good name, freedom of expression and public opinion are closely

connected concepts, in which the concept of ‘the view of right thinking people’ are inherently part of the test.

Juries are intended to reflect the views of the public. They represent the public mind and public opinion in

balancing the constitutional values embodied in statutory form. This ‘public dimension’ is of great relevance in

measuring whether a publication is actually defamatory at all; if it is, whether there is a defence to it; and if a

publication is found to be defamatory, the measure of damages.”

412

McCann Fitzgerald.

413

[2019] IECA 54.

142

proceedings including personal injuries actions.” Despite the fact that the Act has been

in force for more than 10 years, it is not possible to assess the effectiveness of this

provision as there is not yet a large body of case-law under the 2009 Act from the

appellate courts.

 It is possible that arguments in relation to the length of jury trials and delays could be

addressed by active case management, requiring legal issues regarding the pleadings to

be determined at the interlocutory stage.

 It is permissible under the European Convention on Human Rights to retain juries in

defamation actions. In its judgment in Independent Newspapers (Ireland) Ltd v.

Ireland413F

414

, the European Court of Human Rights (ECtHR) held that “it is entirely

legitimate to involve citizens in different aspects of the administration of justice”.414F

415

 In Tolstoy Miloslavsy v. United Kingdom,415F

416

the ECtHR held that it cannot be a

requirement of “prescribed by law” in Article 10 ECHR “that the applicant, even with

appropriate legal advice, could anticipate with any degree of certainty the quantum of

damages that could be awarded in his particular case”.

Option 2: Remove presumption of jury trial

Arguments in favour

The arguments set out above in relation to removal of juries from defamation cases apply. The

following additional arguments are also relevant:

 The removal of the presumption of jury trials is now a common practice amongst other

common law jurisdictions and would bring Ireland into line with those jurisdictions, in

particular England and Wales and Scotland.

 It could be argued that this is the best mechanism to ensure compatibility with the

constitutional protection of one's good name - it would still allow for jury hearings in

specific cases, but it would address, at least in part, some of the problems and drawbacks

with the automatic access to a jury in this jurisdiction.

 Removing the presumption of trial by jury, should increase the ability of the courts to

effectively manage defamation claims according to their particular circumstances and

result in speedier trials, thereby reducing the costs of an action for all sides.

Arguments Against

 Depending on how any such provision is framed, the arguments against the removal of

juries from High Court defamation cases set out above would apply.

414

[2017] ECHR 567 (App no. 28199/15).

415

Independent Newspapers (Ireland) Ltd v. Ireland [2017] ECHR 567 (App no. 28199/15) para. 105.

416

[1995] 20 EHRR 442.

143

Option 3: Retain juries on questions of liability but remove juries from the decision on

quantum of damages

Arguments in favour

 The Law Reform Commission, in its 1991 Report on The Civil Law of Defamation,416F

417

recommended that in High Court defamation actions issues of fact, other than the

assessment of damages, should be determined by a jury but that damages in such actions

should be assessed by the judge. They also recommended that the jury should be entitled

to include in their verdict a finding that the plaintiff is entitled to nominal damages

only.417F

418

 Juries would continue to have a role in defamation cases, which is important as ordinary

members of society are best placed to act as arbiters of community standards on what is

defamatory.418F

419

Arguments Against

 The Legal Advisory Group on Defamation in its 2003 Report419F

420

indicated that such a

division of functions as between judge (assessment of damages) and jury (assessment of

liability) would not operate well in practice. It took the view that such an approach could

place judges in a difficult position since they would not be privy to the seriousness with

which the jury viewed the defamatory matter. The Group therefore concluded that juries

should continue to have a role in assessing damages in the High Court.

 In McDonagh v. Sunday Newspapers420F

421

, O’Donnell J. noted that “in a defamation case

the question of whether the words are defamatory, and if so the damage done to the

specific reputation of the individual, are bound up together”.421F

422

Option 4: Make no change to role of juries in High Court actions

Arguments in favour

 The arguments against abolishing juries at option 1 above would apply.

 The Legal Advisory Group on Defamation in its 2003 Report recommended that juries

should be retained in High Court defamation actions.

Arguments against

 The arguments in favour of abolishing juries set out at option 1 above would apply.

Recommendations

The following option is recommended:

417

The Law Reform Commission also recommended that juries should be restored in Circuit Court defamation

cases.

418

Law Reform Commission Report on The Civil Law of Defamation, December 1991, p. 106.

419

See quotation from McDonagh v. Sunday Newspapers ([2017 IESC 59) in footnote 403.

420

Report of the Legal Advisory Group on Defamation, March 2003.

421

[2017] IESC 59 2.

422

ibid para 32.

144

 Option 1: Abolish juries in defamation cases.

The following options are not recommended:

 Option 2: Remove presumption of jury trial;

 Option 3: Retain juries on questions of liability but remove juries from the decision on

quantum of damages; and

 Option 4: Make no change in relation to role of juries in High Court actions.

4.3 Time Limits and Delays by Parties

4.3.1 Current Legal Situation

Section 38 of the Act amends section 11 of the Statute of Limitations 1957 to provide for a

general limitation period of one year “from the date on which the cause of action accrued” for

the bringing of a defamation action. The court may direct an additional period not exceeding

two years. The Act sets out a strict test for the giving of such a direction: the court must not

give such a direction unless it is satisfied that the interests of justice require the giving of the

direction, the prejudice that the plaintiff would suffer if the direction were not given would

significantly outweigh the prejudice that the defendant would suffer if the direction were given.

The court must, in deciding whether to give such a direction, have regard to the reason for the

failure to bring the action within the one year limitation period and the extent to which any

evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

In relation to statements published on the internet, section 38(b) inserts a new subsection (3B)

in section 11 of the 1957 Act to provide that “the date of accrual of the cause of action shall

be the date upon which the defamatory statement is first published and, where the statement is

published through the medium of the internet, the date on which it is first capable of being

viewed or listened to through that medium”.422F

423

Professor Neville Cox, in his presentation to the Symposium on Reform of Defamation Law,

noted that as the number of cases decided under the 2009 Act increases, so too does judicial

interpretation of its provisions. He went on to note that there has been case-law in relation to,

inter alia:

“when a defamation action might be struck out for delay,423F

424

because it is frivolous,

vexatious or discloses no cause of action,424F

425

or for want of prosecution or abuse of

process,425F

426

and in particular, of whether and when a discretionary extension to the

limitation period under s. 38 of the Act might be warranted.

426F

427

…. These judgments put

423

http://www.irishstatutebook.ie/eli/2009/act/31/section/38/enacted/en/html#sec38 ;

424

Leech v. Independent Newspapers (Ireland) Limited [2017] IECA 8.

425

Jones v. Coolmore Stud [2019] IEHC 652; Kelly v Allied Irish Bank plc [2019] IESC 72; VK v. MW and Others

[2018] IECA 290; Barrett v. Joyce [2018] IEHC 823.

426

O’Beirne v. Bank of Ireland Mortgage Bank and Others [2016] IEHC 364, [2016] 6 JIC 2805; Corrigan v.

Kevin P Kilrane & Co. Solicitors [2017] IEHC 488.

427

Morris v. Ryan [2019] IECA 86; Oakes v. Spar (Ireland) Ltd [2019] IEHC 642; O’Brien v. O’Brien [2019]

IEHC 591; O’Sullivan v. Irish Examiner Limited [2018] IEHC 625; Quinn v. Reserve Defence Forces

Representative Association [2018] IEHC 684; Hynes v Allied Irish Banks Plc [2018] IEHC 229 .

145

flesh on the bones of the statutory terms but, …., do not raise concerns in relation to the

terms themselves.”427F

428

4.3.2 Issues raised in submissions

One submission to the review suggested that the limitation period should be one year or the

age of majority plus one year.428F

429

Another submission argued that the standard limitation period

of one year to initiate a case should be increased to two years, with the lesser time-frame acting

as an obstruction to some litigants who may be forced to proceed before they are ready, thus

providing a motivation to some defendants to drag out and delay proceedings as a matter of

course in order to limit the ability of the litigant to start a case.429F

430

The submission from the Houses of the Oireachtas Joint Committee on Justice and Equality

cited the differing treatment of traditional and internet publication as confusing and something

which carried potential for unfairness to plaintiffs, such as in circumstances where publication

has taken place, but a defamatory statement is not yet “capable of being viewed or listened to

through the medium of the Internet”. The Committee expressed the view that the separate

provision for the Internet should be removed, and that the standard rules in relation to

publication should apply to the Internet as to any other medium.430F

431

It was also argued that there was an undue weighting towards trial and that there should be an

express statutory requirement that defamation plaintiffs must proceed with due expedition.

Stagnant defamation claims result in some defendants having to bear ongoing costs and

uncertainty associated with long term proceedings, or claims revived several years after

original publication. In order to remedy this, it was argued that the Act should include an

express statutory jurisdiction to dismiss claims where there have been no proceedings within 2

years of issuing proceedings, unless there are special circumstances.431F

432

4.3.3 Comparative Perspectives

In England, Wales and Northern Ireland, the general time limit for initiating a defamation

action is 1 year (or in the case of disability, 1 year from the date on which the person ceased to

be under a disability). A court has discretion to dis-apply the time limit, if it appears that it

would be equitable to do in certain circumstances.432F

433

In Scotland, the Defamation and Malicious Publications (Scotland) Act 2021 amends the

Prescription and Limitation (Scotland) Act 1973 to provide for a reduction of the limitation

period for initiating a defamation action from 3 years to 1 year. It also provides that any period

of mediation or, in the case of media complaints any period where the parties attempt to resolve

the dispute by a complaint process or expert determination, is to be disregarded for the purposes

of determining the limitation period.433F

434

428

Prof. Neville Cox, (Trinity College Dublin), ‘Irish defamation law: the 2009 Act and the need for reform’.

(Download PDF) at

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf

429

Dublin Bus.

430

Christian Morris.

431

This issue is considered in Chapter 7.

432

McCann Fitzgerald.

433

Sections 5 and 6 of the Defamation Act 1996 which amend the Limitation Act 1980 (England and Wales)

and the Limitation (Northern Ireland) Order 1989 (Northern Ireland).

434

Sections 33 to 33A.

146

In Ontario, the Law Commission in its report on Defamation Law in the Internet Age

recommends that the general two-year limitation period in the Limitations Act should be

adopted.

4.3.4 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 increase the standard limitation period to two years;

 where parties engage in alternative dispute resolution mechanisms, increase the

limitation period to take account of time devoted to such mechanisms;

 provide for express statutory jurisdiction for dismissal of claims where no step has been

taken by the plaintiff within two years from the bringing of the defamation action, unless

there are special circumstances;

 amend section 11(3B) of the Statute of Limitations to remove differences between off-

line and online publication.

Option 1: Increase standard limitation period to two years

Arguments in favour

 Would lessen pressure to initiate proceedings by litigants with lesser access to resources

and who may need more time for consideration, advice and preparation.

 Could encourage parties to engage in alternative dispute resolution mechanisms and

afford more time to consider such solutions.

Arguments against

 This matter was considered by the Legal Advisory Group which favoured a one year

limitation period with the option for a court to direct that the limitation period be dis-

applied in a case where it is satisfied that any prejudice which the plaintiff might suffer

if the action were not to proceed significantly outweighs any prejudice which the

defendant might suffer if the action were to proceed.434F

435

 The aim of defamation proceedings is for the plaintiff to vindicate his/her reputation; it

is therefore in the interests of the plaintiff to initiate proceedings without unnecessary

delay in order to repair the damage that has been done to his/her reputation.

 The Act already provides discretion to the court to extend the period up to two years.

 There is no legal difficult with the current time limit e.g. in Taheny v. Honeyman & ors,435F

436

Peart J noted that the time limits set out in the 2009 Act “are less generous than for many

other types of action, but nevertheless provide plenty of time for the taking of any legal

advice the plaintiff wishes, and for such proceedings to be commenced”.

435

Report of the Legal Advisory Group on Defamation, March 2003 at pp. 27-28.

436

[2015] IEHC 883.

147

Option 2: Where parties engage in alternative dispute resolution mechanisms, increase

standard limitation period to take account of time devoted to such mechanisms

Arguments in favour

 This proposal might encourage plaintiffs to engage in alternative dispute resolution

mechanisms before initiating legal proceedings.

Arguments against

 It is already possible for a judge to extend the limitation period to two years which should

facilitate plaintiffs who wish to avail of alternative dispute resolution mechanisms.

 This proposal may lead to uncertainty in relation to the limitation period.

Option 3: Provide for express statutory jurisdiction for dismissal of claims where no step has

been taken by the plaintiff within two years from the bringing of the defamation action,

unless there are special circumstances

Arguments in favour

 The purpose of defamation proceedings is for the plaintiff to vindicate his/her reputation,

so it should be in the interests of the plaintiff to progress the case.

 Excessive delays can have adverse effects on all parties to the proceedings e.g. in Ganley

v. RTE436F

437

(which did not relate to the issue of delay), the High Court stated:

It is not fair on a person who considers himself to have been defamed that his name

should, if he is correct in his contentions, stand tarnished without appropriate relief

being granted for the better part of a decade. It is not fair on the relevant

journalists, if they did nothing wrong, that they should remain mired in defamation

proceedings for such a protracted period. And there have to be and are concerns

as to the chilling effect for free speech, a right of the most profound significance,

if defamation proceedings are generally to become enormously lengthy and hence

enormously costly affairs.437F

438

 This proposal should reduce long-term costs of defamation cases.

 The Law Reform Commission Report on The Civil Law of Defamation recommended

that:

“(I) where no step has been taken within one year from the issuing of the plenary

summons, the defendant should be entitled to have the proceedings dismissed for

want of prosecution unless the court orders otherwise and (II) if such proceedings

have been struck out or dismissed, no further proceedings in respect of the same

cause of action should be issued without leave of the court”.438F

439

437

[2017] IEHC 78.

438

Ganley v RTE [2017] IEHC 78 at para. 113.

439

Law Reform Commission Report on The Civil Law of Defamation, December 1991, at para. 13.2.

148

Arguments against

 The Review Group on the ‘Review of the Administration of Civil Justice’ recommended

that “provision be made by rules of court to provide for automatic discontinuance, subject

to a power on the court’s part to reinstate the proceedings” and that automatic

discontinuance would apply “to proceedings which, within a period of 30 months of their

commencement, have not been notified to the court as ready for trial”.439F

440

Adoption of a

different approach in respect of defamation cases may result in lack of clarity and

consistency in the law.

 Provided that there is discretion for the court not to dismiss the action where to do so

would result in injustice being done to the plaintiff, there are no other obvious arguments

against the proposal to provide for discontinuance of actions not being pursued.

Option 4: Amend section 11(3B) of the Statute of Limitations to remove differences between

off-line and online publication

Arguments in favour

 This proposal would standardise the rules in relation to publication in any and all media

and fora.

Arguments against

 The current provision reflects a recommendation in the Report of the Legal Advisory

Group.

 The distinction reflects the reality of the internet.

Recommendations

The following option is recommended:

 Option 3: Provide for express statutory jurisdiction for dismissal of claims where no step

has been taken by the plaintiff within two years from the bringing of the defamation

action, unless there are special circumstances.

The following options are not recommended:

 Option 1: Increase the standard limitation period to two years;

 Option 2: Where parties engage in alternative dispute resolution mechanisms, increase

standard limitation period to take account of time devoted to such mechanisms; and

 Option 4: Amend section 11(3B) of the Statute of Limitations to remove differences

between off-line and online publication.

440

REVIEW OF THE ADMINISTRATION OF CIVIL JUSTICE REPORT (October 2020) at p. 134, available at

https://www.justice.ie/en/JELR/Pages/Review_of_the_Administration_of_Civil_Justice_-

_Review_Group_Report.

149

4.4 Case Management

4.4.1 Main issues raised in course of review

Several submissions expressed the view that current lengthy duration and high costs involved

in defamation actions could be reduced by the introduction of more stream-lined case

management procedures, or pre-action protocols.440F

441

Existing systems were cited as potential

models, such as Part 15 of the Legal Services Regulation Act 2015 which provides for a pre-

action protocol relating to clinical negligence actions and the requirements to be complied with

by the parties before such actions are brought; as well as the current system in England and

Wales, where early Court appointed dates for Case Management Conferences are preceded by

both parties answering questionnaires, submitting reasoning and directions in advance, along

with proposed dates for various trial stages.441F

442

It was suggested that where a complainant is seeking damages, the complainant should be

required to state the sum he/she is willing to accept in damages and the sum required for costs

if the case is to be settled at that time.442F

443

The position set out by the parties under such a protocol

could also be taken into account by the court when considering any costs order.443F

444

Another

submission444F

445

suggested that a defendant should be afforded the opportunity to make a tender

similar to what is provided under section 17 of the Civil Liability and Courts Act 2004, which

requires both plaintiff and defendant to serve a Notice of Offer of Settlement on each other.

These offers are lodged in Court but the judge would not be aware of the terms of the offers

until judgment has been delivered. The judge can have regard to the offers and reasonableness

of the conduct of the parties when considering the question of costs in the action. However,

while it is unclear whether a plaintiff has to make an offer under section 17 first or whether

there is to be an exchange of offer at the same time, any such provisions should provide that

the plaintiff should be required to make the formal offer first in order to avoid trial by ambush.

4.4.2 Options for reform and recommendations

Based on the submissions received, the following options were identified and are

recommended:

 The subject of civil procedure in the courts (including pre-action protocols, case

management, etc.) was considered extensively by the Review Group on the ‘Review of

the Administration of Civil Justice’ (the ‘Kelly Report’).445F

446

It is recommended that these

issues be considered in the context of the implementation of the recommendations of the

Review Group.

 Proactive judicial case management of defamation claims should be encouraged, in line

with the Kelly Report, in order to reduce delays and costs.

441

Newsbrands, McCann Fitzgerald, MGN, Journal Media, Law Society, Twitter.

442

Journal Media; UK Ministry of Justice Practice Direction 29 – the Multi-Track, supplementing CPR Part 29:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part29/pd_part29

443

ISME, MGN Ltd.

444

MGN Ltd.

445

William Fry (solicitors).

446

Report of the Review of the Administration of Civil Justice, October 2020 (Chapter 5 – Civil Procedures in

the Courts); http://www.justice.ie/en/JELR/Review_of_the_Administration_of_Civil_Justice_-

_Review_Group_Report.pdf/Files/Review_of_the_Administration_of_Civil_Justice_-

_Review_Group_Report.pdf

150

 It is recommended that, as it already applies in personal injuries cases, provision be made

for the making of a tender by the defendant following receipt of a tender by the plaintiff

which would be taken into account in determining costs.

The arguments in favour and against the latter recommendation are as follows:

Arguments in favour

 This already applies in personal injuries cases.

 This would mean that parties would be required to state their terms of settlement, on a

basis that will have consequences in costs, before the case proceeds to trial which might

encourage the settlement of cases; it would also mean that the terms of the tender and the

reasonableness of the conduct of the parties in making the tender would be taken into

account in determining costs.

 Unlike a lodgement in settlement as provided for in section 29, this provision would

require the plaintiff to first indicate what he/she would accept in damages before the

defendant makes an offer.

Arguments against

 Defendants already have the option of making an offer of amends or making a

lodgement in settlement of the action.

 This issue may have less relevance if pre-action protocols are adopted (The Legal

Services Regulation Act inserts the following provision in section 17 of the Civil

Liabilities and Courts Act: “(6A) This section does not apply to a clinical negligence

action within the meaning of Part 2A if an offer to settle the claim had, before the

bringing of the action, been made by any party to the action in accordance with the

pre-action protocol.”).

4.5 Choice of Jurisdiction - concerns about ‘libel tourism’

Introduction

‘Libel tourism’ is a term used to refer to ‘forum shopping’ in defamation actions.

In a straightforward defamation case, the person claiming to have been defamed, the author

and publisher of the allegedly defamatory statement, and the audience to whom the statement

was published, are all based in Ireland. Accordingly, it is the Irish courts that have jurisdiction

to hear and decide the case, and Irish law that will be applied.

However, in an increasingly globalised and interconnected world, the position is often more

complicated. The statement may be published about a person based in Country A, by a person

based on Country B, using an internet platform or social media app based in Country C, and

then accessed by other persons in Countries D, E and F.

151

In which of countries A to F should the plaintiff bring defamation proceedings? May the

plaintiff do so in all of those countries?

In such situations, international law provides some rules on which country is the appropriate

jurisdiction, but may still allow the plaintiff a choice. Where this is the case:

‘the choice of jurisdiction forms part of the exercise of one’s right of access to the

courts, as guaranteed by the [European] Convention [on Human Rights].’ 446F

447

The plaintiff may naturally wish to bring proceedings in the most convenient country (e.g.

where they live or work) or in a country with whose language, or legal system, they are more

familiar.

‘Forum shopping’ describes the practice of choosing the court in which to bring an

action based on the most favourable outcome, even where there is no, or only a tenuous,

connection between the legal issues and the jurisdiction. Such practice may be observed

in various fields and is not limited to defamation cases. … It is the lack of, or the far-

fetched nature of, the link between the subject-matter of the dispute, and the jurisdiction

where the lawsuit was filed, that distinguishes forum-shopping from the ordinary choice

of forum.

Forum shopping does not necessarily involve abuse of procedural or other rights by

the claimant, nor malicious intent. Wishing to have the best prospects of success for

one’s case is not in itself an illegitimate interest….’

However:

‘ …At the same time,… forum shopping may negatively impact a range of human rights.

Where the claimant acts with malicious intent or abuses his rights, such impact is likely

to be exacerbated.’ ’ 447F

448

4.5.1 Choice of jurisdiction: the position under EU law

The main rules in Ireland on choice of jurisdiction in defamation cases are contained in EU

Regulation 1215/2012448F

449

, known as the Brussels I (Recast) Regulation. This Regulation

generally applies to civil and commercial cases449F

450

that involve more than one country, if the

countries concerned are members of the European Union. It sets out agreed common rules of

procedure, for deciding which country’s courts will have jurisdiction and which country’s laws

will apply, and provides for mutual recognition and enforcement in EU Member States of the

court orders made under those rules.

Article 4.1 of the Regulation provides that:

447

Study on forms of liability and jurisdictional issues in the application of civil and administrative defamation

laws in Council of Europe member states, ed. Emeric Prévost, Council of Europe, September 2019, p. 6.

448

Study on forms of liability and jurisdictional issues in the application of civil and administrative defamation

laws in Council of Europe member states, Council of Europe, September 2019, p. 6.

449

Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on

jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

450

With some exclusions (e.g. family law, bankruptcy/insolvency, …) that are not relevant to defamation law.

152

‘1. Subject to this Regulation, persons domiciled in a Member State shall, whatever

their nationality, be sued in the courts of that Member State.’

Article 7.2 adds an alternative: in tort cases (such as defamation),

‘A person domiciled in a Member State may be sued in another Member State: …. in

the courts for the place where the harmful event occurred or may occur…’ .

These two core principles re-state the position on defamation law as it applied under the earlier

EU ‘Brussels I’ Regulation450F

451

, and before that, under an international convention, the 1968

Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and

Commercial Matters. Therefore, two important judgments of the European Court of Justice,

that were decided respectively under the Convention and under the Brussels I Regulation, are

still relevant in interpreting and applying the Recast Regulation.

Shevill v Presse Alliance SA 451F

452

referred to print-only defamatory publication. The plaintiff, a

UK national living in Yorkshire, sued a French newspaper, France-Soir, over an allegedly

defamatory article. France-Soir was published extensively in France, with only a very small

circulation in England and Wales – so the newspaper argued that only the French courts could

have jurisdiction to hear the defamation proceedings. The EU Court of Justice, however, held

that where a defamatory newspaper article was distributed in several Member States, the

defamed person could issue proceedings for damages against the publisher:

- either before the courts of the Contracting State to the 1968 Convention in which the

publisher is established, which has jurisdiction to award damage for all the harm called

by the publication within Contracting States,

- or before the courts of each Contracting State in which the article was distributed –

though those courts are limited to awarding damages for the injury caused in that State

to the plaintiff’s reputation.

However, in eDate Advertising GmbH v. X and Martinez v. MGN Ltd, 452F

453

the European Court

of Justice ruled that those two options were insufficient in the context of online publication,

and added a third option:

‘ … the placing online of content on a website is to be distinguished from the regional

distribution of media such as printed matter in that it is intended, in principle, to ensure

the ubiquity of that content. That content may be consulted instantly by an unlimited

number of internet users throughout the world, irrespective of any intention on the part

of the person who placed it in regard to its consultation beyond that person’s Member

State of establishment and outside of that person’s control.

It thus appears that the internet reduces the usefulness of the criterion relating to

distribution, in so far as the scope of the distribution of content placed online is in

principle universal. Moreover, it is not always possible, on a technical level, to quantify

that distribution with certainty and accuracy in relation to a particular Member State or,

therefore, to assess the damage caused exclusively within that Member State.’

451

The ‘Brussels I’ Regulation - Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and

the recognition and enforcement of judgments in civil and commercial matters – which was repealed and replaced

by the Brussels I (Recast) Regulation, Regulation (EU) 1215/2012.

452

Shevill v Presse Alliance, 1995, C-68/93; applied in Ireland by Barr J. in Ewins & others v Carlton, [1997]

IEHC 44, and by Kelly J., in Hunter v Duckworth, [2000] 1IR 510.

453

Joined cases eDate Advertising GmbH v. X and Martinez v. MGN Ltd, C-509/09 and C-161/10.

153

The Court held that it was necessary, therefore, to add a third option, in order to ensure that the

plaintiff could ‘bring an action in one forum in respect of all of the damage caused, depending

on the place in which the damage caused in the European Union by that infringement

occurred.’

Such an overall assessment of the damage ‘might best be assessed by the court of the place

where the alleged victim has his centre of interests ..’. Normally this was the place of a person’s

habitual residence, but ‘a person may also have the centre of his interests in a Member State

in which he does not habitually reside, in so far as other factors, such as the pursuit of a

professional activity, may establish the existence of a particularly close link with that State.’453F

454

Following this interpretation, three options are now available in the case of online defamation.

The plaintiff can choose to take an action:

- either before the courts of the EU Member State where the publisher is established, which

have jurisdiction to award damage for all the harm caused by the publication within the

territory of the EU,

- or before the courts of each EU Member State in which the article was distributed –

though they are limited to awarding damages for the injury caused in that State to the

plaintiff’s reputation,

- or before the courts of the EU Member State where the plaintiff has their centre of

interests, which have jurisdiction to award for damages all the harm caused by the

publication within the territory of the EU.

Cox and McCullough note that the EU Court of Justice ruling in eDate Advertising GmbH v.

X and Martinez v. MGN Ltd was applied in Ireland, by Kearns P. in CSI Manufacturing Ltd v.

Dun and Bradstreet454F

455

, a defamation case arising out of subscription-only material published

online about the creditworthiness of the plaintiff company.

Kearns P. held, however, that the ‘centre of interests’ test laid down in Martinez would only

apply after the plaintiff established that there had been publication in Ireland (Cox and

McCullough criticise that conclusion).455F

456

However, concerns have been expressed, by some stakeholders at EU level, about the

availability of a relatively wide range of jurisdiction choices to defamation plaintiffs, under the

Recast Regulation and the two judgments discussed above.

In May 2020, 25 European-level NGOs published a joint letter on press freedom456F

457

to the

European Commission, calling for the introduction of anti-SLAPP457F

458

legislation at EU level.

Among the points made in their letter was that in their view, plaintiffs now enjoy too much

flexibility under the Recast Regulation, in choosing the jurisdiction for a defamation claim:

and that this risks facilitating abuse of process and vexatious proceedings, particularly the

454

eDate Advertising GmbH v. X and Martinez v. MGN Ltd, C-509/09 and C-161/10, at paras 45-46 and 48-49.

See Cox, N. and McCullough, E., Defamation Law and Practice, p. 65-66.

455

[2013] IEHC 547.

456

Cox, N. and McCullough, E., Defamation Law and Practice, 2

edition, p. 66-67.

457

https://www.ecpmf.eu/letter-to-the-european-commission-concerning-the-threat-of-vexatious-litigation-

against-journalists-activists-and-others/ .

458

See section 4.9 of this chapter, regarding SLAPPs.

154

deliberate issue of proceedings in jurisdictions that have little connection with the dispute. The

NGOs proposed that the Recast Regulation be reviewed, as a matter of urgency, to address this

concern. They attached a supporting legal paper, prepared by the Centre for Private

International Law at the University of Aberdeen.

458F

459

4.5.2 Choice of jurisdiction: non-EU countries

The position is more complex where one or more of the countries concerned are not EU

Member States.

Similar rules to the Brussels I Recast Regulation apply as regards Iceland, Norway and

Switzerland, under the Lugano Convention 459F

460

Otherwise, the courts are likely to decide which country has jurisdiction by following the

(mainly common-law) doctrine of ‘forum non conveniens’ – of avoiding the case being decided

in a jurisdiction that is unsuitable. Cox and McCullough state that ‘Where publication occurs

both in Ireland and in jurisdictions that are not party to Regulation 44/2001 [now, to

Regulation EU 1215/2012], the question of jurisdiction will fall to be decided by the normal

forum non conveniens rules.’460F

461

A court that is asked to decide a case originating outside its own jurisdiction may refuse to do

so, under the ‘forum non conveniens’ doctrine, if it is satisfied that there is another tribunal

having competent jurisdiction ‘in which the case may be tried more suitably for the interests of

all the parties and for the ends of justice.’461F

462

In deciding what is a more suitable forum, the courts will consider whether there is another

jurisdiction with which the parties have significantly closer connections462F

463

. For example, the

English courts have refused jurisdiction in defamation proceedings brought in England by a

Singapore citizen who had lived in Singapore almost all his life, against a Singapore newspaper

which distributed only about 12 copies in England; and by a Texas-based oilman against Forbes

magazine, where the court concluded that the centre of the plaintiff’s business and social life

was in Texas, although he also had family and business connections in England463F

464

In Ireland, the Supreme Court upheld a refusal by the Court of Appeal, in Ryanair v Fleming,

to accept jurisdiction in defamation proceedings taken by an Irish company against an

Australian pilot, who lived with his family in Australia, and had never visited Ireland. The case

arose from comments posted by the pilot about Ryanair practices, made from Australia and

published on a website forum operated by a company in California.

The Supreme Court held that there was no evidence that any third party had accessed the post

from Ireland, so no evidence of publication in this jurisdiction; moreover, it was a ‘fundamental

459

Attached paper: https://www.ecpmf.eu/wp-content/uploads/2020/05/EC-Advice-concerning-the-introduction-

of-anti-SLAPP-legislation-to-protect-freedom-of-expression-in-the-European-Union.pdf .

460

Gatley on Libel and Slander, 12

edition, p. 932.

461

Cox, N. and McCullough, E., Defamation Law and Practice, 2

edition, para 2.103. See also Maher, The

Law of Defamation (2

edition) 2018, paras 3.50 – 3.55.

462

Gatley on Libel and Slander, 12

edition, para 24.27

463

See the detailed discussion at Gatley on Libel and Slander, 12

edition, para 24.28.

464

Jeyeretnam v Mahmood, 11 Jan. 1991 unreported; Wyatt v Forbes Inc., 2 Dec. 1997 unreported, Gatley on

Libel and Slander, 12

edition, para 24.28.

155

principle …. that in the absence of special considerations, a foreign defendant should be sued

where he or she has his or her place of domicile’. 464F

465

4.5.3 ‘Libel tourism’ – perception or reality?

During the 1990s and 2000s, commentators in England developed a concern about so-called

‘libel tourism’. There was a perception that litigants with no real English connection were

taking defamation actions in the English courts, in order to take advantage of that jurisdiction’s

more generous libel laws, even where the statement complained of had been more widely

published in other jurisdictions.

Section 9 of the Defamation Act 2013 in England and Wales was specially designed to inhibit

any such practices 465F

466

. As originally introduced, the main subsections provided:

‘9. Action against a person not domiciled in the UK or a Member State [of the EU]

etc.

(1) This section applies to an action for defamation against a person who is not

domiciled—

(a) in the United Kingdom;

(b) in another Member State; or

Convention.

(2) A court does not have jurisdiction to hear and determine an action to which this

section applies unless the court is satisfied that, of all the places in which the statement

complained of has been published, England and Wales is clearly the most appropriate

place in which to bring an action in respect of the statement.’

The explanatory notes for new subsection (2) state that it was intended to ‘overcome the

problem of courts readily accepting jurisdiction, simply because a claimant frames their claim

so as to focus on damage which has occurred in this jurisdiction only’; for example, the English

court might decline jurisdiction if the statement in question had been published 100,000 times

in another jurisdiction and only 5,000 times in England466F

467

. The Lord Chancellor, introducing

the amending Bill in the House of Commons, said his concerns arose from wealthy foreigners

using the English courts to stifle investigative reporting, giving a hypothetical example of a

‘Saudi businessman … threatening an American publication with an action because of an

article that has had a tiny circulation in the United Kingdom.’ 467F

468

465

Ryanair v Fleming, 2017 IESCDET 8.

466

Ali G. R. Auda (2016) A proposed solution to the problem of libel tourism, Journal of Private International

Law, 12:1, 106-131, DOI: 10.1080/17441048.2016.1140992 ; Gatley on Libel and Slander, 12

edition, para

24.29.

467

The explanatory note adds that the court might wish also to take account of other factors, “including, for

example, the amount of damage to the claimant’s reputation in this jurisdiction compared to elsewhere, the extent

to which the publication was targeted at a readership in this jurisdiction compared to elsewhere, and whether there

is reason to think that the claimant would not receive a fair hearing elsewhere.”

468

Gatley on Libel and Slander, 12

edition, footnote to para 24.29.

156

When originally introduced, section 9 did not apply to defendants who were domiciled in other

EU Member States or in Lugano Convention countries – in order to avoid any conflict under

EU law with the Brussels I Recast Regulation or the Lugano Convention.

However, after the UK’s withdrawal from the European Union, the section title and subsection

(1) were further amended468F

469

. They now provide:

‘9. Action against a person not domiciled in the UK [remaining text deleted]

(1) This section applies to an action for defamation against a person who is not

domiciled—

(a) in the United Kingdom [remaining text deleted].’

4.5.4 Issues raised in submissions

Several submissions referred to section 9 of the England and Wales Defamation Act 2013 as

relevant in tackling the apparent problem of ‘libel tourism’ in that jurisdiction, and expressed

concern that Ireland could become a destination of choice for international defamation actions

given the differences in jurisdiction threshold standards.469F

470

They suggested that this could be discouraged in Ireland by introducing a similar provision,

(based on appropriate jurisdiction, or as part of a serious harm test) which could restrict those

with little or negligible connection to Ireland using it as a legal forum.

Submissions referred to the ‘country of origin’ principle contained in Article 3(1) of the e-

Commerce Directive, which provides that an information society service should follow the

laws of the Member State in which it is established, not the laws of each Member State to which

it provides its services). They suggested that the same approach should be applied in cases of

defamation law.470F

471

However, this would appear to be a matter for EU, rather than for Irish, law.

Submissions also argued that following the changes made by the 2013 Act in England and

Wales, a lower evidential burden now applies in Ireland than in England and Wales, and that

this creates an incentive for international plaintiffs, who do not have a significant link with this

country and who would previously have taken their proceedings in the English courts, to do so

in Ireland.471F

472

4.5.5 Options for reform

Option 1: Threshold provision requiring a court to consider the appropriateness of Ireland

as a forum for a defamation action, where the plaintiff has more substantial links with

another jurisdiction.

Arguments in favour

469

The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/479).

470

Crowley Millar, Google, INM, Local Ireland, Newsbrands, NUJ, Ronan Daly Jermyn.

471

Google.

472

Independent News Media

157

 This would combat the risk of ‘defamation tourism’ into Ireland, following the changes

made by the Defamation Act 2013 in England and Wales;

Arguments against

 There appear to be no clear data on whether there has been any increase in the number

of defamation cases brought in Ireland by plaintiffs based in other jurisdictions;

 Any changes to the requirements of the Brussels I Recast Regulation appear to be a

matter for EU, rather than Irish, law.

Recommendation

The following option is recommended:

 Option 1: To address the perceived risk of international forum-shopping or ‘defamation

tourism’ into Ireland: require the court to be satisfied that Ireland is ‘clearly the most

appropriate place’ for the action to be brought (as in England and Wales), in cases not

falling under the rules of the Brussels I Recast Regulation.

4.6 Costs and accessibility of defamation actions

4.6.1 Issues raised in submissions

It was widely expressed in submissions that the legal costs of undertaking defamation

proceedings, particularly in the High Court, are often onerously high due to several factors,

such as lengthy time to trial, requirement for senior council, presence of juries, risk of exposure

to high damages and awarding of costs against the unsuccessful party. Such a risk of high costs

can act as a disincentive to either initiate or defend defamation actions, resulting in a ‘chilling

effect’ on free speech, journalism, certain sections of business, media and civil society lacking

significant financial resources.472F

473

It was argued that, from a private individual perspective, the exclusion of defamation legal

actions from the Civil Legal Aid scheme is not compatible with Article 6 ECHR or with Article

47 of the EU Charter of Fundamental Rights; in addition to acting as disincentive to defend

such actions which may lead to the withdrawing of a statement, rather than defending it.473F

474

One submission argued that the financial implications of taking defamation proceedings

effectively placed such proceedings out of reach of non-profit entities such as charities. Given

limited financial resources, it suggested that a dedicated legal aid programme for charities

should be introduced.474F

475

473

FLAC, INM, ISME, Law Society, Local Ireland, McCann Fitzgerald, Newsbrands, Twitter. David Reynolds,

Dialogue Ireland, Hugh O’Driscoll.

474

FLAC, ICCL.

475

Dialogue Ireland.

158

4.6.2 Options for reform

The general issue of litigation costs has been considered by the Review Group on the ‘Review

of the Administration of Civil Justice’ which made a number of recommendations.475F

476

Based on the submissions received, the following options for reform specific to defamation

actions were identified:

 remove the exclusion of defamation claims from the Civil Legal Aid Act 1995; this issue

together with the relative priority to be afforded to defamation cases to be considered

within the forthcoming overall review of civil legal aid;

 provide a dedicated legal aid programme for charities.

Option 1: Remove the exclusion of defamation from the Civil Legal Aid Act 1995; this issue,

together with the relative priority to be afforded to defamation cases, to be considered within

the forthcoming overall review of civil legal aid

Arguments in favour

 This proposal would be in line with Article 6 ECHR and Article 47 of the EU Charter of

Fundamental Rights.

 This proposal would promote equality of access to justice.

Arguments against

 This issue should be considered in the context of the overall review of the civil legal aid

scheme which is due to commence in early 2022.

 Implementation of this proposal would result in significant costs to exchequer.

 The introduction of ADR for defamation claims should reduce the need to extend the

civil legal aid scheme to defamation actions.

 Providing income-tested legal aid may result in an increase of frivolous cases taken

without fear of consequences or accountability.

 Providing income-tested legal aid would still preclude many middle-income persons

taking defamation cases.

 This proposal would go against an overall aim of taking defamation cases out of the

courts.

476

Report of the Review of Administration of Civil Justice, October 2020, at Chapter 9 – Litigation Costs;

http://www.justice.ie/en/JELR/Review_of_the_Administration_of_Civil_Justice_-

_Review_Group_Report.pdf/Files/Review_of_the_Administration_of_Civil_Justice_-

_Review_Group_Report.pdf.

159

Option 2: Introduce a dedicated legal aid programme for charities

Arguments in favour

 There are no obvious arguments in favour of treating charities differently to other

organisations.

Arguments against

 This proposal could result in significant costs to the public finances.

 Providing legal aid to some organisations, and not others, may cause disagreement and

challenges.

 This proposal would go against an overall aim of taking defamation cases out of the

courts.

Recommendations

The following option is recommended:

 Option 1: Remove the exclusion of defamation from the Civil Legal Aid Act 1995; this

issue together with the relative priority to be afforded to defamation cases to be

considered within the forthcoming overall review of civil legal aid.

The following option is not recommended:

 Option 2: Introduce a dedicated legal aid programme for charities.

4.7 Criminal offences relating to defamation

4.7.1 Current Legal Position

Section 35 of the Act abolishes the common law offences of defamatory libel, seditious libel

and obscene libel.

4.7.2 Issues raised in the course of the Review

One submission476F

477

to the review suggested the introduction of an offence of “malicious injury

to the reputation of another” and another477F

478

suggested that the offence of criminal libel should

be restored. Finally, one submission478F

479

suggested the introduction of a statutory penalty for

malicious libel suits which should only apply if the court finds mala fides on the part of the

person who takes the case.

477

Law Society – anonymous solicitor(s).

478

Michael Williams.

479

David Reynolds.

160

4.7.3 Options for reform

Based on the submissions received, the following options were identified:

 introduce an offence of “malicious injury to the reputation of another” or an offence of

criminal libel;

 introduce a statutory penalty for malicious taking defamation proceedings.

Option 1: Introduce an offence of “malicious injury to the reputation of another” or an

offence of criminal libel

Arguments in favour

 The 2009 Act abolished the offence of defamatory libel; there are no obvious arguments

for the reintroduction of a similar offence at this stage.

Arguments against

 The criminal libel actions that were abolished by the 2009 Act “were relatively few and

far between and tended to involve situations where the publication was intentionally

malicious and deeply harmful”.479F

480

 The legal tests for such prosecutions as enunciated in Irish case-law required showing

that the public interest – as distinct from the private feelings of the plaintiffs – required

the institution of criminal proceedings. Cox & McCullough conclude that “(g)iven the

difficulty of prosecutions for criminal libel under the law as it stood prior to 2009, the

abolition of the crime is of less practical significance than it might initially appear.”480F

481

 This suggestion was raised in only two submissions and does not appear to be widely

supported.

 Section 42 of the Act provides for an action for malicious falsehood, but it is limited to

damage related to the plaintiff’s property, professional or business interests.

Option 2: Introduce a statutory penalty for maliciously taking defamation proceedings

Arguments in favour

 There are no obvious arguments in favour of this proposal.

Arguments against

 A criminal offence (where the criminal standard of proof applies – beyond reasonable

doubt) is unlikely to be more effective than existing civil remedies already available to

the courts where the civil burden of proof (balance of probabilities) applies.

480

Cox, N. and McCullough, E., Defamation: Law and Practice, (Clarus Press, 2014) at para. 1-26.

481

ibid at para. 1-31.

161

 This suggestion was raised in only one submissions and does not appear to be widely

supported.

Recommendations

The following options are not recommended:

 Option 1: Introduce an offence of “malicious injury to the reputation of another” or an

offence of criminal libel; and

 Option 2: Introduce a statutory penalty for maliciously taking defamation proceedings.

4.8 Evidential rule - reference to a criminal conviction

4.8.1 Current Legal Position

Section 43(2) of the Act provides that where a person has been convicted of an offence in the

State, the fact of his/her conviction, and any findings of fact made during the course of the

proceedings for the offence concerned, shall be admissible in evidence in a defamation

action.481F

482

4.8.2 Main issues raised in course of review

One submission482F

483

to the review suggested that a provision similar to section 13 of the England

and Wales Civil Evidence Act 1968, subject to specified amendments, should be introduced.

The rationale for this proposal is that while it is well established in Irish law that a certificate

of a criminal conviction is admissible in civil cases as prima facie evidence of guilt, this leads

to difficulties in some defamation cases. It is open to plaintiffs to contend that they were not

guilty of the offence in question and have, therefore, been defamed by suggestions that they

were.

As the law stands, the fact of a conviction is to be distinguished from the fact of guilt. Further,

if a convicted person contests a criminal conviction in a defamation case, a defendant is likely

to be put to considerable expense re-litigating the case, with little prospect of recouping the

costs incurred.

The relevant provisions of section 13 are as follows:

“Conclusiveness of convictions for purposes of defamation actions.

….

(d) In an action for libel or slander in which the question whether the plaintiff did or did

not commit a criminal offence is relevant to an issue arising in the action, proof that,

at the time when that issue falls to be determined, he stands convicted of that offence

shall be conclusive evidence that he committed that offence; and his conviction thereof

shall be admissible in evidence accordingly.

482

Section 43(1) makes similar provision in respect of acquittal of an offence.

483

NewsBrands.

162

(e) In any such action as aforesaid in which by virtue of this section the plaintiff is proved

to have been convicted of an offence, the contents of any document which is admissible

as evidence of the conviction, and the contents of the information, complaint, indictment

or charge-sheet on which he was convicted, shall, without prejudice to the reception of

any other admissible evidence for the purpose of identifying the facts on which the

conviction was based, be admissible in evidence for the purpose of identifying those

facts.”

The submission suggested that the phrase “at the time when that issue falls to be determined”

should be replaced with “at the time of the publication complained of”: as the position at the

time of the publication complained of is the matter at issue, and it is then that any damage to

the plaintiff’s reputation has been caused.

4.8.3 Option for reform

Based on the submissions received, the following option was identified:

 amend section 43(2) of the Act to provide that proof of conviction of an offence shall be

conclusive evidence that an individual committed the offence.

Arguments in favour

 This would be in line with the recommendation in the Law Reform Commission Report

which recommended the introduction of a statutory provision to provide:

(a) where in a defamation action the question of whether a person party to the

action committed a criminal offence is relevant; proof that he stands convicted

of the offence by a court of competent jurisdiction in the State shall be

conclusive evidence that he committed the offence;

(b) the conviction of a person not party to the defamation action by a court of

competent jurisdiction in the State should be evidence, but not conclusive

evidence, of facts on which it was based;.

Arguments against

 The current provision which makes conviction and any findings of fact in the criminal

proceedings admissible as evidence in the defamation trial but does not attach any

special weight to such evidence or specify any inferences that must be drawn sets an

appropriate evidential standard.

Recommendation

It is recommended that further consideration be given to the implications of amending the

evidential test set out in section 43(2) of the Act.

4.9 Measures to counter mis-use of defamation proceedings (‘SLAPP’

actions)

4.9.1 What are SLAPPs?

163

‘SLAPP’ is an acronym standing for a ‘Strategic Lawsuit Against Public Participation’.

SLAPPs are usually defined on the following lines:

“groundless or exaggerated lawsuits initiated by state organs, business corporations

or powerful individuals against weaker parties who express criticism or communicate

messages that are uncomfortable to the litigants, on a matter of public interest. Their

purpose is to censor, intimidate and silence critics by burdening them with the cost of

a legal defence until they abandon their criticism or opposition. While civil society

actors can be vulnerable to such initiatives, the nature of journalists’ work leaves them

particularly exposed.”483F

484

Research on SLAPPs, both across Europe and internationally, suggests that defamation actions

are among a range of different types of civil and criminal484F

485

actions which may be mis-used as

SLAPPs, depending on the jurisdiction concerned 485F

486

Of course, like any other actor, state organs (or powerful companies or individuals) are entitled

(sometimes, even obliged) to respond to those who disagree with them, to exercise their right

of access to the courts, and to vigorously defend their legal rights and interests486F

487

Conversely, as the European Court of Human Rights has repeatedly held, ‘civil society actors’

– particularly the media, but also NGOs and individuals who are engaged in public interest

issues - must be able to exercise their right to freedom of expression effectively in relation to

matters of public interest. The Court has underlined, moreover, that “… there exists a strong

public interest in enabling … groups and individuals outside the mainstream to contribute to

public debate by disseminating information and ideas’ on such matters, ‘subject to the proviso

that they act in good faith in order to provide accurate and reliable information”, and that a

clear distinction is made between statements of fact, and value judgements487F

488

The challenge posed by the concept of SLAPPs is to identify whether some legal actions by

certain actors go beyond the legitimate exercise of their rights, and constitute an abuse of the

litigation process - whose main purpose is not to determine legal issues fairly (or, in some

cases, at all), but rather to exploit the litigation process, and any significant power imbalance

between the parties, to threaten and silence those who raise contrary questions or arguments,

in good faith, on matters of public interest. Such abusive proceedings could raise legitimate

concerns for governments and for society as a whole, if they risk having a ‘chilling effect’ on

free public debate in a democratic society.

484

European Commission, On the European democracy action plan, COM (2020) 790 final, 3.12.2020, p. 14.

485

Safety of Journalists and the fighting of Corruption in the EU, above, pp.. 72-73. (Ireland is mentioned as one

of just four of the EU Member States, and just 15 out of 57 OSCE Participating States, to have repealed all general

provisions on criminal defamation and insult.)

486

Safety of Journalists and the fighting of Corruption in the EU, (Study prepared for the Parliament’s Committee

on Civil Liberties, Justice and Home Affairs), Tarlach McGonagle and others, European Parliament, July 2020,

at p. 72. Defamation and insult are still criminal offences in many EU Member States, and ‘are still applied with

some degree of regularity’ in a number of these, including against the media, with significant chilling effects on

journalistic freedom of expression.

487

See, for example, the comments of the European Court of Human Rights in Steel and Morris v U.K. [2005]

ECHR (App no. 68416/01) discussed above in section 2.2.3, at paras 93-94 of the judgment.

488

Steel and Morris v. U.K. [2005] ECHR (App no. 68416/01) above, at paras 89-90.

164

Clearly, this is not to suggest that defamation proceedings are intrinsically abusive – the

European Court of Human Rights has emphasised that protecting the reputation of an individual

is one of the grounds on which the right to freedom of expression can legitimately be limited488F

489

- but rather that a minority of plaintiffs use defamation - together with other civil and criminal

proceedings – in an abusive manner.

This has led to the adoption of ‘anti-SLAPP’ laws in a number of States in the United States

and in Canada, and to calls for the development of EU ‘anti-SLAPP’ legislation, which are

considered in more detail below.

The 2020 European Parliament study on Safety of Journalists and the fighting of Corruption in

the EU concluded that:

“Independent, investigative journalism plays a vital role in informing the public on

issues of general interest in society, such as social developments, public figures,

corruption and wrongdoing. Strategic Lawsuits Against Public Participation

(‘SLAPPs’) pose a serious ongoing threat to the safety of journalists, to quality

journalism and, more generally, everyone who seeks to contribute to public debate.

SLAPPs also indirectly pose a threat to the public’s right to be properly informed on

matters of interest to society.”489F

490

4.9.2 The development of concerns about SLAPPS in North America and in Europe

The term ‘SLAPP’ was first coined490F

491

in the 1990s, by academics in the United States who

were researching on the strategic use of litigation by powerful companies to deter criticism or

protest against their land use or land development activities by NGOs and individuals, typically

on environmental or public health grounds.

The SLAPP concept has since been adopted and developed by a range of actors in different

countries, including lawyers, legislators, NGOs, the media, governments and even international

organisations.

For example, the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and

of Association has issued a Note and recommendations on SLAPPs and international human

rights law and practice491F

492

. As these point out, a particular country’s legal environment may be

more or less fertile for SLAPPs, depending on a range of different factors, such as how

expensive legal costs are (including any caps on damages and the availability of legal aid),

the elasticity of laws targeting speech (especially defamation), and the existence of

safeguards (such as anti-SLAPP legislation, or power to award legal costs to the defendant if

proceedings are held to be an abuse of process).

Attention to the concept of SLAPPs in Europe followed much later than in North America.

However, it has intensified considerably in recent years, amid overall concern about increasing

490

Safety of Journalists and the fighting of Corruption in the EU, above, pp. 74-75.

491

By Professors George Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out (1996).

492

https://www.ohchr.org/Documents/Issues/FAssociation/InfoNoteSLAPPsFoAA.docx

165

prevalence and seriousness of physical attacks and threats against journalists, as well as of other

abuse, intimidation and threats against journalists and NGOs.

Recent attacks within the EU include the murders of investigative journalists Daphne Caruana

Galicia in Malta in 2017, Jan Kuciak in Slovakia in 2018, and Lyra McKee in Northern Ireland

in April 2019; violent physical attacks against journalists in Italy, France, the UK and Bulgaria

in 2019; and 20 journalists in Italy living under 24-hour police protection in 2019, following

credible threats to their lives. The Council of Europe also noted reports in 2019 of lawsuits or

criminal charges being issued against media workers in six EU Member States 492F

493

; and added

reports in 2019 of SLAPPs being issued against journalists in Malta, Croatia, Belgium, the UK

and France493F

494

The Council of Europe has established an online Platform for the protection and safety of

journalists, where European NGOs working on freedom of speech can report attacks and threats

to journalists, including lawsuits that appear to be SLAPPs494F

495

In February 2018, a small cross-party group of MEPs wrote to Vice-President Timmermans of

the European Commission, expressing concerns about litigation commenced in Arizona against

Daphne Caruana Galicia by a Maltese bank on which she had written a number of critical

articles, and several specified lawsuits against other journalists. The letter called on the

Commission to bring forward a legislative proposal for an EU “anti-SLAPP” directive, which

would give investigative journalists and media groups a right to seek summary dismissal of

“vexatious lawsuits” and would create a fund for the financial support of media groups resisting

such lawsuits.495F

496

The MEPs also proposed the creation of a new EU register that would “name

and shame” firms who issued SLAPPs.

In May 2020, 25 press freedom organisations published a joint letter to the European

Commission calling for the introduction of anti-SLAPP legislation at EU level, and attaching

a supporting paper from the Centre for Private International Law at the University of

Aberdeen.496F

497

In June 2020, 119 NGOs from across Europe published an open letter 497F

498

expressing their

concern about SLAPPs brought by powerful actors intending to intimidate and prevent

watchdogs such as journalists, activists, trade unions, media, and civil society organisations,

from holding them accountable. The organisations argued that the increasing prevalence of

SLAPPS was becoming a threat to freedom of expression, public participation and freedom of

assembly. They called for legal measures, similar to those proposed by the letter to Vice-

493

Hands off Press Freedom, 2020 Annual Report by the partner organisations to the Council of Europe

Platform to Promote the Protection of Journalism and the Safety of Journalists, Council of Europe, 2020, pp. 6-

11.

494

Hands off Press Freedom, above, pp. 21-22.

495

The CoE’s partner NGOs for the Platform include the European Federation of Journalists, the European

Broadcasting Union, PEN International, Article 19, Index on Censorship and Reporters Without Borders.

496

https://www.eppgroup.eu/how-we-ake-it-happen/with-eu-countries/malta/news/meps-continue-to-pile-on-

pressure-for-anti-slapp-legislation

497

https://www.ecpmf.eu/letter-to-the-european-commission-concerning-the-threat-of-vexatious-litigation-

against-journalists-activists-and-others/

498

https://www.access-info.org/wp-content/uploads/2020-06-05-Ending-SLAPP.s-NGO-Policy-Paper-119-

FINAL.pdf

166

President Timmermans, to be introduced at EU level to provide procedural safeguards and

support for those threatened with SLAPP lawsuits.

These issues are documented and examined in detail across EU Member States in two extensive

reports, published by the European Parliament498F

499

and the Council of Europe499F

500

respectively in

2020. However, the studies did not identify any examples of anti-SLAPP legislation already in

force in EU Member States and concluded that to date, SLAPPs remain largely unrecognised

in national legal systems with little consideration of their use and impact.

The Parliament study’s final recommendations500F

501

call on the European Commission to

accelerate work on a comprehensive legislative package to prevent SLAPPs in Europe. This

should consist of “the drafting of a dedicated anti-SLAPP EU Directive”, as well as appropriate

amendments to the Brussels I (recast) Regulation (the EU legislation governing cross-border

litigation.) Any legislative reforms should be “carefully aligned with the principles established

by the European Court of Human Rights in its case-law on freedom of expression and

defamation.” The legislation would benefit from, and should include, active participation by a

range of stakeholders.

In September 2020, the Commission issued its first “Rule of Law Report”, under a new

initiative proposed by Commission President, Ursula von der Leyen, in her State of the Union

address earlier that year. In that speech, the President had placed media freedom as central to

the rule of law:

“The rule of law helps protect people from the rule of the powerful. It is the guarantor

of our most basic of everyday rights and freedoms. It allows us to give our opinion and

be informed by a free press.” 501F

502

The Report underlined that the rule of law is “enshrined in Article 2 of the Treaty on European

Union as one of the common values for all Member States” and that:

“The European Union is based on a set of shared values, including fundamental rights,

democracy, and the rule of law. These are the bedrock of our society and common

identity. No democracy can thrive without independent courts guaranteeing the

protection of fundamental rights and civil liberties, nor without an active civil society

and a free and pluralistic media. Globally, the EU is recognised as having very high

standards in this area. Nevertheless, these high standards are not always universally

applied, improvements can be made, and there is always a risk of a backward step.’”502F

503

The Report referred in particular to the murders of Daphne Caruana Galizia and Jan Kuciak,

who had been investigating high-level corruption and organised crime allegations, as a “wake-

up call reminding Member States of the obligation to guarantee an enabling environment for

499

Study: Safety of journalists and the fighting of corruption in the EU’, Tarlach McGonagle & others, European

Parliament (at the request of the LIBE Committee), July 2020.

https://www.europarl.europa.eu/RegData/etudes/STUD/2020/655187/IPOL_STU(2020)655187_EN.pdf

500

Hands off Press Freedom: Attacks on Media in Europe Must Not Become a New Normal, (Annual Report by

the partner organisations to the CoE Platform to Promote the Protection and Safety of Journalists), Council of

Europe, April 2020.

501

Safety of journalists and the fighting of corruption in the EU’, above, p. 100.

502

President von der Leyen, State of the Union Address 2020, cited in COM (2020) 580, 2020 Rule of Law

Report: The rule of law situation in the European Union, p. 1.

503

COM (2020) 580, 2020 Rule of Law Report, p. 1.

167

journalists, protect their safety and proactively promote media freedom and media pluralism.”

It emphasised the importance of investigative journalism for strengthening the capacity of the

criminal justice system to fight corruption.503F

504

The Report also highlighted the range of threats faced by journalists, including SLAPP

lawsuits:

“In a number of Member States, journalists and other media actors increasingly face

threats and attacks (physical and online) in relation to their publications and their

work, in various forms: the deployment of SLAPP lawsuits; threats to public safety and

actual physical attacks; online harassment, especially of female journalists; smear

campaigns, intimidation and politically oriented threats…. Particular examples have

been highlighted in the country chapters on Bulgaria, Croatia, Hungary, Slovenia and

Spain. Threats and attacks have a chilling effect on journalists, and entail the risk of a

shrinking public debate on controversial societal issues.” 504F

505

In December 2020, the Commission announced that it will present “an initiative to protect

journalists and civil society against SLAPPs’ in late 2021, as part of its Democracy Action

Plan505F

506

”The initiative is likely to take the form of a Directive and a non-legislative measure

(recommendation).506F

507

In her speech on 10 March 2021 to the European Parliament’s plenary debate on media

freedom, Commission Vice-President Jourova underlined that:

“the competences of the Commission when it comes to media are very limited. … I want

us to identify how we can widen and strengthen the toolbox that the Commission has,

from financial support, to regulation and enforcement actions. We need a tool which

recognises the role of media as key players in a democratic society. At this moment, we

only have the rules which recognise the role of the media as the actors on the European

Single Market, and this is what is limiting our ability to act.”

The Commission is currently undertaking a public consultation on this issue.507F

508

Furthermore, before the Justice and Home Affairs Council Meeting on 7/8 October 2021,

Ministers attended a working lunch to discuss the issue of SLAPPs and the need to protect

journalists from abusive litigation. The purpose of the discussion was to contribute to the

preparation of the European Commission’s initiative to protect journalists and rights

defenders against this type of abusive litigation. The debate focused on national experience

and good practices in fighting SLAPPs, as well as on the cross border dimension of this

phenomenon.508F

509

4.9.3 The legal position in Ireland

504

COM (2020) 580, 2020 Rule of Law Report, pp. 15 and 17.

505

COM (2020) 580, 2020 Rule of Law Report, p. 20.

506

See also SLAPP. in the EU context, P. Bard & others, 29 May 2020, preliminary study, at FN

507

file:///H:/Downloads/090166e5e2c6fc53.pdf.

508

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13192-EU-action-against-abusive-

litigation-SLAPP-targeting-journalists-and-rights-defenders_en.

509

https://www.consilium.europa.eu/en/meetings/jha/2021/10/07-08/#.

168

The concept of anti-SLAPP measures has not been widely discussed as yet in Irish law; and

there are currently no specific legal measures designed to counter a SLAPP (in the sense that

this concept has been developed in some other jurisdictions.)

Irish law includes measures to respond to litigation which amounts to an abuse of process,

including for example the inherent jurisdiction of the courts to strike out vexatious

proceedings509F

510

. However, these powers lack the statutory flanking and supporting measures -

for example, in relation to costs –and the statutory mechanisms to assist the court in balancing

competing rights and public interests, that are a feature of successful anti-SLAPP legislation in

other jurisdictions510F

511

4.9.4 Issues raised during the review

The concept of SLAPPs was not explicitly raised by submissions to the review.

However, it is noticeable that a number of submissions raised fears and concerns that echo

those typical of SLAPP cases. Many stakeholder proposals set out earlier in this Report in

support of introducing a presumption of falsity, or a serious harm test, refer to such concerns.

For example, the Business Journalists’ Association submitted that:

“We argue that the current regime in practice limits legitimate reporting and debate on

the activities of individuals and organisations that wield considerable influence over

Irish life and the economy.

….. People and organisations with large financial resources can exploit [existing

defamation law] by using the law to deaden or stymie reporting on their activities

through responding to virtually any coverage with solicitors’ letters, threats of legal

action, or both.

There is now a significant danger of reporters and media outlets “self-censoring” to

pre-empt being drawn into legal actions, that even when they amount to nothing, sap

reporters’ and editors’ time and energy and media organisations’ finances.

…. The current regime is particularly flawed because the costs associated with legal

action are prohibitively high for most ordinary citizens, but is weighted in favour of those

who can afford to initiate and maintain claims against the media. There is no doubt it

can encourage spurious claims by those with deep financial pockets, which, no matter

how ill-founded, require a response. This wastes hours and resources.

…. Rising costs coupled [with] rising awards in cases where plaintiffs are successful

mean the stakes are extraordinary high for media organisations. It can be financially

attractive for media organisations to settle claims rather than undertake the financial

risk of defending a report. That undermines the public’s right to information.” 511F

512

4.9.5 Comparative perspectives

510

Gilchrist v Sunday Newspapers & others, [2017] IECA 190, para 14.

511

See discussion below under Comparative Perspectives.

512

Business Journalists’ Association

169

In the United States, a number of States- including California - developed and enacted

legislation allowing a defendant to apply to court at an early stage in a SLAPP lawsuit, for it to

be dismissed if the court was satisfied that it was without merit, as a breach of the defendant’s

right to freedom of expression. If the person who brought the lawsuit convinces the court that

it can probably succeed, then the lawsuit can go ahead.

The intention was to provide a quick, effective and relatively inexpensive mechanism to

combat such suits – such laws often provided that the person who brought the SLAPP must

pay the costs of the dismissal application. This is particularly important in the US context, due

to high legal fees and the “American rule” of costs apportionment (whereby each party to a

lawsuit is normally responsible for its own legal costs).

As of June 2019, at least 29 US states have anti-SLAPP statutes512F

513

: Arizona, Arkansas,

California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana,

Kansas, Louisiana, Maine, Maryland, Massachusetts, Missouri, Nebraska, Nevada, New

Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Tennessee, Utah,

Vermont. (In two other States, Washington and Minnesota, anti-SLAPP statutes were struck

down as unconstitutional (in 2015 and 2017 respectively).

The scope of these anti-SLAPP statutes varies, due to development of the SLAPP concept.

Tarlach McGonagle points out that when the American professors Pring and Canan first

formulated the concept of a SLAPP, they defined it as primarily involving

“communications made to influence a governmental action or outcome, which,

secondarily, resulted in (a) a civil complaint or counterclaim (b) filed against

nongovernment individuals or organisations (NGOs) on a (c) substantive issue of some

public interest or social significance.” 513F

514

This would explain why some State anti-SLAPP laws in the US have a narrower focus -

applying only to actions brought by public applicants against people who have challenged or

opposed such applications to government bodies. Other statutes are drafted with a wider focus,

and apply to speech seeking to influence decisions by the legislature or executive branch.

Thus a recent op-ed in the New York Times 514F

515

(which acknowledged that it had itself been the

target of a number of SLAPP actions) explained that the New York State had enacted an anti-

SLAPP law over 25 years previously, but that it “applies only to suits brought over real estate

developments, zoning and the like, for example when a developer sues environmentalists who

oppose a project.’ Conversely, a Bill now pending before the State legislature ‘would broaden

the scope to include matters of ‘public interest’, which should be ‘broadly construed’” and it

would strengthen the court’s right to award the defendant costs and fees.’ The NY Times also

argued that a strong federal anti-SLAPP statute was long overdue, and would reduce the scope

for plaintiffs to go ‘forum-shopping’ from States with stronger anti-SLAPP laws, to those with

none.

513

https://www.medialaw.org/topics-page/anti-slapp?tmpl=component&print=1

514

Safety of Journalists and the fighting of Corruption in the EU, Tarlach McGonagle and others, European

Parliament, July 2020, at p. 75. Emphasis added.

515

New York Times, 17 July 2020: https://www.nytimes.com/2020/07/17/opinion/new-york-slapp.-frivolous-

lawsuits.html

170

The broadest scope of protection to date appears to have been provided by the California anti-

SLAPP statute, which protects not only traditional petitioning activity, but also expression

connected with issues of public concern. States which have closely followed the California

model include Colorado, Indiana, Louisiana, Nevada, Oregon, Oklahoma, and Tennessee.

At the same time, the US statutes have a drawback, as potential models for any Irish anti-

SLAPP measures. It is the difference in the constitutional context. The First Amendment to the

US Constitution affords a particularly high level of protection to the right to freedom of

expression: it is not subject to a constitutional balance with the right to the protection of

individual privacy, or the right to reputation and good name, in the same manner as the right to

freedom of expression under the Irish Constitution or under the European Convention on

Human Rights.515F

516

The US anti-SLAPP legislation does balance freedom of expression against

the right of access to the courts and to due process – but not against rights to reputation and

privacy, which makes it less helpful as a model for Irish law.

In England and Wales, there are no equivalents to the anti-SLAPP measures developed in

other jurisdictions.

In 2009, Alastair Mullis and Andrew Scott advocated that options for anti-SLAPP measures

should be included in any further reform of English libel law516F

517

: “We acknowledge that such

behaviour [abusive defamation proceedings, seeking to intimidate journalists or others from

public-interest reporting on the activities of the powerful] does from time to time occur,

although we do not see any evidence that it is typical of libel claimants generally.” Their main

concern was to address the risk that the cost of being embroiled in defamation proceedings

could in itself exercise a chilling effect for many defendants.

While this proposal was not ultimately taken up in the preparation of the Defamation Act of

2013, their analysis517F

518

remains interesting in the Irish context:

 The authors noted that British judges arguably already had power, under the Civil

Procedure Rules, to assess the motivation of a litigant and to strike out a case that amounts

to an abuse of process, including one that is “vexatious … or obviously ill-founded”,

including in a case where a litigant issued proceedings with no intention of ever bringing

them to a conclusion.

 However, a power to strike out alone would not be effective. “The unusual feature of

SLAPPs is that their bite is most often felt prior to the substantive question reaching

court.” Realistically, many defendants would capitulate and self-censor, rather than

incurring the extra costs and burden of defending a lawsuit against a determined and

financially powerful opponent. It was recognised that being sued could in itself have a

chilling effect on freedom of expression.

 So it was vital to ensure “some disincentive to the intimidatory legal suit being brought

in the first place”.. Defendants could be given an option of claiming their legal costs

back from the SLAPP litigant, or perhaps of counter-suing him or her for damages for

516

Cox, N. and McCullough, E., Defamation: Law and Practice, 2014, para 1.07 – “.. comparative models of

defamation law such as those that exist in the United States, where the Constitution protects free speech in terms

that are very robust and do not protect any express right to a good name, are unlikely to be of any relevance in

so far as the Irish model is concerned.”’

517

Alastair Mullis & Andrew Scott, Something rotten in the state of English libel law? A rejoinder to the

clamour for reform of defamation, 2009 Communications Law 14(6), ISSN 1746-7616 (also at LSE Research

Online, at: http://eprints.lse.ac.uk/27135/ )

518

Above, at pp. 12-13 of the LSE website text.

171

the breach of free-expression rights. “The prospect that the defendant might ‘SLAPP-

back’ would immediately see a prospective claimant pause to reconsider the advisability

of bringing an intimidatory action.”

 Again, arguably the courts could develop the existing torts of malicious civil proceedings

or abuse of process to provide such redress but legislative intervention would be better.

One reason is that anti-SLAPP measures to defend the right to freedom of expression by

allowing a court to strike out proceedings at an early stage where not demonstrably well

founded, would also need to be carefully thought out to ensure that they remained

compatible with the right of access to justice.

In Scotland, in October 2020, the Justice Committee of the Scottish Parliament discussed

submissions from Scottish PEN and from the media, seeking inclusion of anti-SLAPP

measures, during its consideration of the Defamation and Malicious Publications (Scotland)

Bill, (now the Defamation and Malicious Publications (Scotland) Act 2021). The Committee

agreed with the need to protect against SLAPPs, but was reluctant at that stage to add new

elements to a Bill which had already been some time in preparation.

518F

519

4.9.6 Comparative focus: Ontario

Building on the experience of US anti-SLAPP legislation at State level, anti-SLAPP laws have

also been enacted in three Canadian provinces (which jointly account for about 74% of

Canada’s population519F

520

Ontario adopted its Protection of Public Participation Act in 2015, and British Columbia

followed with a ‘virtually identical’520F

521

Protection of Public Participation Act in March 2019.

(Quebec has even earlier legislation, having inserted anti-SLAPP provisions at articles 51-54

of its Code of Civil Procedure by an amending Bill in 2009. However, its legal system is closer

to the French civil law model, so the Ontario and British Columbia Acts seem more relevant

examples for the Irish legal system.)

In March 2020, the Law Commission of Ontario published a major report, Defamation Law in

the Internet Age, which includes an analysis and evaluation of the Ontario anti-SLAPP

legislation521F

522

five years after its enactment.

The Law Commission concluded that:

“ … the anti-SLAPP legislation is an appropriate and valuable tool for weeding out

weak or unmeritorious defamation claims that unduly infringe freedom of expression. …

Anti-SLAPP motions are a powerful tool for protecting freedom of expression and

defendants in Ontario defamation actions. It is not an exaggeration to say that anti-

SLAPP motions are gradually revolutionising defamation law in this province.” 522F

523

The discussion that follows looks at how the Ontario Act works. (For simplicity, we are

assuming that the suspected SLAPP in the following example is a defamation case, but the

519

Scottish Parliament, Justice Committee – 17th Report 2020 – Defamation & Malicious Publication (Scotland)

Bill, Stage 1 Report (14 October 2020).

520

Canada’s overall population in the 2016 census was roughly 35 million. The (rounded) populations of

Ontario (13.5 million), Quebec (8 million), and British Columbia (4.5 million), amount to 26 million in total.

521

Defamation Law in the Internet Age, Law Commission of Ontario, March 2020, at p.52.

522

Defamation Law in the Internet Age, above, at pp. 50-54.

523

Defamation Law in the Internet Age, above, pp. 50-51.

172

Protection of Public Participation Act applies to any form of SLAPP proceedings, including

for example contract cases.)

In procedural terms, the Ontario legislation essentially provides that:

 A defendant can make a preliminary application to court (an ‘anti-SLAPP motion’)

asking the court to dismiss defamation proceedings that they consider to be a SLAPP, as

having an undue impact on their freedom of expression;

 Such applications are fast-tracked for summary hearing, meaning that they will be

decided without the court first hearing the defamation proceedings;

 The application can be made at any time after the defamation proceedings have begun;

 Once the application has been filed, it effectively freezes the defamation proceedings

until the application (and any appeal) has been decided;

 If the defendant establishes that the plaintiff in the defamation proceedings was acting in

bad faith, or for an improper purpose, the Act provides that an award of damages can also

be made against the plaintiff.

Special statutory costs presumptions apply

If the defendant succeeds in getting the defamation proceedings dismissed, there is a statutory

presumption that the plaintiff in those proceedings will be directed to pay the defendant’s costs

(both of the application to dismiss, and of the defamation proceedings) and that this will be on

a ‘full indemnity’ basis. However, if the defendant loses their application for summary

dismissal, there is a statutory presumption that they will not be directed to pay the plaintiff’s

costs of that application. Both presumptions are subject to the judge’s discretion.

The legal balancing tests

The Ontario Act provides for a three-stage test to decide whether the defamation proceedings

should be summarily dismissed:

(a) The ‘public interest’ test

In order to proceed with their application to dismiss the defamation proceedings, the defendant

in those proceedings must show, on the balance of probabilities, that they arise from “an

expression made by [that] person that relates to a matter of public interest.”

If the defendant succeeds in meeting this test, the court must then dismiss the defamation

proceedings, unless the plaintiff in those proceedings can meet two further tests.

(b) The ‘merits’ test

The plaintiff in the defamation proceedings has to show that, on the balance of probabilities,

that there are ‘grounds to believe’ that the defamation proceedings have ‘substantial merit’,

and that the defendant has ‘no valid defence’ to them.

An element of this test is that the Act requires the plaintiff to show that the defendant’s

‘expression’ is likely to cause sufficient potential harm to their reputation to merit the case

being allowed to proceed. Defamation law in Ontario, as in Ireland, presumes that a defamatory

statement will generate commensurate damage to reputation, and does not require the plaintiff

to show that ‘serious harm’ is likely to result. The Law Commission report points out, however,

that exceptionally, the practical effect of an anti-SLAPP dismissal application “is to reverse

173

the common law presumption of damage and impose a serious harm test on plaintiffs before

they can proceed with a defamation action.”523F

524

If the plaintiff does so satisfy the court, the court must consider whether the harm to the plaintiff

resulting from the defendant’s ‘expression’ is sufficiently serious that the public interest in

permitting the defamation proceedings to continue outweighs the public interest in protecting

the defendant’s freedom of expression.

The court is allowed to take account here of the defendant’s motives for publishing the

expression.

Views of stakeholders

The Law Commission consulted with stakeholders on how well they considered the anti-

SLAPP mechanism to be working. Different stakeholder groups held quite different views:

“For media stakeholders and others concerned with expressive freedom, the motion is a

valuable means of discouraging trivial defamation claims that would otherwise cast a

significant chill on freedom of expression. For plaintiffs, the motion is an over-broad

mechanism with the extreme consequence of denying some defamation victim a legal remedy

even where they would have been able to prove that defamation occurred.” However, “the

majority of stakeholders either favoured the legislation or were resigned to its existence.”

The Commission’s own analysis was that “From a defamation law reform perspective, the

importance of anti-SLAPP legislation is that it denies a legal remedy to plaintiffs with

legitimate defamation claims where there is insufficient preliminary evidence of serious

reputational harm. As a result, the legislation represents a significant encroachment on the

reputational interests traditionally protected by defamation law. This is necessary to better

protect freedom of expression in relation to public interest communications …”. 524F

525

Interpretation by the Canadian courts

The tests set out in the legislation had been considered in a number of 2018 judgments of the

Ontario Court of Appeal, which had provided “a thoughtful framework for finding the difficult

dividing line between a legitimate defamation action and a SLAPP”. The Court had identified

several hallmarks of SLAPP actions that courts may consider, including a “financial or power

imbalance” strongly favouring the plaintiff, and had expanded on the Supreme Court of

Canada’s earlier case-law on what is meant by ‘public interest’.

Two of these decisions were appealed to the Supreme Court of Canada, which upheld the

approach of the legislation in both cases in September 2020. Pointes525F

526

was in many ways a

classic North American SLAPP case. It arose from a claim for $6 million for breach of contract,

in a dispute between a land development company and a not-for profit association representing

local interests. The association was opposed to the proposed development, and its president

gave evidence at a hearing by the Ontario Municipal Board that in their view, the development

would cause ecological and environmental damage to the region. Permission for the

development was refused. The development company argued that the president’s evidence

breached an earlier agreement between it and Pointes, which had imposed limits on what

Pointes could do in relation to the developer seeking approval for the development from the

524

Defamation Law in the Internet Age, above, at p. 52.

525

ibid.

526

1704604 Ontario Ltd v Pointes Protection Association [2020] SCC 22

174

relevant authorities. Pointes was supported in the case by a spectrum of organisations

representing civil liberties, journalists, environmentalists, media freedoms, women’s rights and

aboriginal Canadians.

In a unanimous judgment, the Supreme Court decided to dismiss the developer’s action against

Pointes. It agreed that the Pointes president’s evidence at the hearing was clearly a public

interest matter. It ruled that the development company failed the ‘merits test’ – its claim was

“not legally tenable” and depended on a very strained interpretation of its agreement with

Pointes. And on the ‘balancing test’, the Court found that “the harm likely to be suffered by the

developer as a result of Pointes Protection’s expression lies at the very low end of the spectrum

and correspondingly, so too does the public interest in allowing the proceeding to continue.

… In contrast, the public interest in protecting Pointes Protection’s expression is significant

and falls at the higher end of the spectrum.”

Platnick526F

527

arose from a leaked email in which one professional expressed critical views of

another. Dr Platnick was a medical doctor who was often engaged by insurance companies to

assess personal injuries suffered by claimants. Ms Bent was a lawyer who frequently

represented accident victims. She sent an email to members of an Ontario lawyers’ association

in which she claimed that Dr Platnick had altered reports provided by medical specialists. The

email was anonymously leaked and published, and Dr Platnick sued for defamation, contending

that the email caused significant reputational damage. Ms Bent asked the court to dismiss the

defamation proceedings, arguing that she was covered by qualified privilege. The Supreme

Court ruled by five to four in favour of Dr Platnick, and directed that the proceedings be

allowed to continue.

The Supreme Court held in Bent that the public interest in protecting free expression can be

determined by reference to the core values underlying the Canadian Charter of Rights and

Freedoms. The right to reputation is seen as reflecting the innate dignity of the individual, a

concept which underlies all the Charter rights. The Court will seek to strike an appropriate and

careful balance between freedom of expression and the protection of reputation, as equally

important rights527F

528

The careful and balanced approach taken in the formulation and interpretation of Ontario

legislation seems of particular interest for Irish defamation law.

4.9.7 Options for reform

The legislative measures that have been developed in Canada, under Ontario’s Protection of

Public Participation Act 2015, to counter SLAPP lawsuits appear of particular interest in the

context of Irish defamation law, because of:

 their emphasis on supporting public participation in debate on issues of public interest,

 the judicious balance that they propose between the right to freedom of expression and

the protection of reputation, which seems compatible with the approaches of the Irish

Constitution and of the European Convention on Human Rights, and

 their insistence on placing the public interest as the determining criterion for deciding

conflicts between those rights.

527

Bent v. Platnick [2020] SCC 23

528

Bent v. Platnick [2020] SCC 23, paras 163, 168.

175

Option: Introduce an ‘anti-SLAPP’ summary dismissal mechanism

The option is to introduce an ‘anti-SLAPP’ mechanism to allow a defendant to bring a motion

to court seeking early dismissal of defamation proceedings against them which appear to be

without merit and contrary to the public interest, using as a model the approach taken by

Ontario’s Protection of Public Participation Act 2015.

Arguments in favour

 Experience across a range of jurisdictions indicates that so-called SLAPPs528F

529

have

become an important threat to freedom of expression and debate on matters of public

interest.

 Submissions to the review widely reflect a view that threats of defamation proceedings

by powerful individuals or organisations exercise a real chilling effect on Irish

investigative journalism, even when the proceedings are seen as meritless.

 There is a need for innovative approaches to provide an effective anti-SLAPP

mechanism. Given the objectives underlying the SLAPP strategy, such a mechanism

should aim to allow for early dismissal of the SLAPP proceedings, a presumption that

the person applying for dismissal will not be liable for the litigation costs, and an award

of damages against the SLAPP plaintiff in appropriate cases.

 Such a mechanism will involve the court making a decision on the merits of the main

proceedings at an early stage. Given the Constitutional protection for the right to

protection of good name and of access to the courts, the criteria for the court to decide

on a summary dismissal application need to be carefully designed and balanced with the

right to freedom of expression and the public interest in fostering free debate and

information.

 The Ontario model proposed has been operating successfully in Ontario (and in British

Columbia) and is the subject of a very positive recent evaluation by the Law Commission

of Ontario.

 The approach of the Ontario legislation and of the Canadian courts interpreting it appears

very compatible with Irish law, given that it is based on balancing the rights to reputation

and to freedom of expression under the Canadian Charter of Rights and Freedoms, and

strongly emphasises the public interest as the deciding criterion.

Arguments against

 Given the novelty of the proposed approach, there is a risk of extra court applications and

appeals in the short term, while courts and parties work through the implications of new

529

SLAPPs (Strategic Lawsuits Against Public Participation) are legal proceedings, often without merit, whose

main objective is not to succeed on the substantive issue claimed. Instead, they seek to deter debate or criticism

by the defendant on matters of public interest, which is inconvenient to the plaintiff’s interests, by generating

disproportionate costs and burden of litigation to intimidate and obstruct them.

176

legal principles. However, the Ontario experience to date suggests that this model works

well and is sustainable.

 Allowing for summary dismissal of proceedings at an initial stage, without full argument,

carries a risk that in a small number of cases, defamation proceedings may be dismissed

where the plaintiff could have a valid case, but is not able to prove it at this early stage.

However, alternative solutions – including the general application of a ‘serious harm’

test, or reversing the presumption of falsity – appear to pose much larger risks in this

regard. Careful formulation of the proposed mechanism, and the Courts’ respect for the

constitutional rights of protection for good name and access to the courts, should

minimise this risk.

177

Chapter 5: Alternative Dispute Resolution

5.1 Print media - Press Council and Press Ombudsman

5.1.1 Establishment, Membership and Functions

The Defamation Act 2009 (section 44) provides that the Minister for Justice529F

530

may give

statutory recognition to a self-regulating body for the print media to be known as the “Press

Council”.

The rationale for the establishment of the Press Council was to provide for an independent

mechanism for the expeditious and informal resolution of complaints without recourse to

litigation. Schedule 2 of the Act sets out the minimum requirements in relation to the Press

Council.

The Press Council of Ireland (including the Press Ombudsman) was established in 2008 by the

press industry as an independent body to provide a complaints handling process which would

enable members of the public to seek redress if something was published in an Irish newspaper,

magazine or online news publication which breached the Code of Practice of the Press Council

of Ireland.

The Defamation Act 2009 (Press Council) Order 2010 (S.I. No. 163 of 2010) recognises the

Press Council of Ireland as the Press Council for the purposes of the Defamation Act.530F

531

The

Press Council is therefore a non-statutory body but is recognised by statute.

The owners of any periodical in circulation in the State, or part of the State, are entitled to be a

member of the Press Council, but membership is voluntary. A “periodical” is defined as any

newspaper, magazine, journal or other publication that is printed, published or issued, or that

circulates in the State and includes any version that is published on the internet or by other

electronic means.531F

532

At present the member publications of the Press Council include all daily

and Sunday newspapers published in the State, the majority of local newspapers, many Irish

magazines, some online-only news publications, some student publications and the associated

digital outlets of member publications.532F

533

The main features of the Press Council are set out below.

The Press Council is independent in the performance of its functions; it consists of 13 members

(7 independent public interest members (including the chairperson), 5 representing the interests

of owners and publishers, and one representing the interests of journalists). It is funded by

subscriptions paid by its member publications.

530

Minister responsible changed from Minister for Justice and Equality to Minister for Justice under the Justice

and Equality (Alteration of Name of Department and Title of Minister) Order 2020 (S.I. No. 452 of 2020).

531

This confers qualified privilege to the Press Council and Press Ombudsman in their decisions and to the press

in publishing these decisions.

532

Defamation Act 2009, section 2.

533

Press Council membership consists of 16 national newspapers (including the Irish editions of UK titles), 55

regional or local newspapers, 17 magazines, 12 student publications and 17 online-only news publications. A full

list of member publications is available on the Press Council’s website: www.presscouncil.ie (October 2021).

178

The principal objects of the Press Council are to –

(a) ensure the protection of freedom of expression of the press,

(b) protect the public interest by ensuring ethical, accurate and truthful reporting by the

press,

(d) ensure that the privacy and dignity of the individual is protected.

In accordance with paragraph 10 of Schedule 2 to the Act, the Code Committee533F

534

of the Press

Council has drawn up a Code of Practice534F

535

which sets out 11 principles which members are

required to adhere to. These Principles include ethical standards, rules and standards intended

to ensure the accuracy of reporting where a person’s reputation is likely to be affected, rules

and standards intended to ensure that intimidation and harassment of persons does not occur,

and rules and standards intended to ensure that the privacy, integrity and dignity of the person

is respected. According to the submission by the Press Council of Ireland and Press

Ombudsman to the Future of Media Commission, “(a)ll members (of the Press Council) are

committed to upholding the provisions of the Code of Practice of the Press Council and

participating in the complaints process of the Office of the Press Ombudsman”.535F

536

Paragraph 8 of Schedule 2 to the Act empowers the Press Council to receive, hear and

determine complaints concerning the conduct of its members.

The Press Council is empowered to appoint the Press Ombudsman, following an open

competition, to deal with such complaints. The Office of the Press Ombudsman provides an

independent, fair, free and fast service. All complaints must, in the first instance, be referred to

the editor of the relevant publication. Complaints which cannot be resolved between a

complainant and the editor are dealt with by the Office of the Press Ombudsman which will

seek to resolve the case by conciliation or mediation.536F

537

Where a complaint cannot be resolved

by either of those means, the Press Ombudsman will issue a decision which can require the

taking of a series of remedial actions, including the publication of the decision of the

Ombudsman, the publication of the correction of inaccurate facts or information relating to the

complainant, the publication of a retraction in respect of the material complained of, and any

other such action as the Ombudsman deems appropriate.537F

538

Typically, most complaints are

resolved within 4-6 weeks.

According to the 2020 Annual Report of the Press Council and Press Ombudsman, half of the

complaints processed during 2020 were resolved to the satisfaction of the complainant.

534

The Code Committee is made up of editors or their representatives.

535

https://www.presscouncil.ie/press-council-of-ireland-1/code-of-practice-.

536

Submission by Press Council of Ireland and Press Ombudsman to the Future of Media Commission, January

2021https://www.presscouncil.ie/office-of-the-press-ombudsman/press-releases-and-annual-reports/Press-

Releases/submission-by-press-council-of-ireland-and-press-ombudsman-to-the-future-of-media-commission

537

The conciliation service provides a quick, fair and free method of resolving complaints. The aim of the

conciliation process is to find an amicable resolution to complaints in a speedy and non-legalistic manner without

a decision having to be made as to whether there was a breach of the Code of Practice.

Mediation involving an editor and the complainant meeting on a voluntary and confidential basis to discuss the

complaint with the aim of arriving at a mutually satisfactory settlement. It is facilitated by a trained mediator

from the Ombudsman’s Office who assists the parties to clarify the issues involved and explore options for

coming to a resolution.- see Annual Report of Press Council of Ireland and Office of the Press Ombudsman

2020, at pp. 11 & 12;

https://www.presscouncil.ie/_fileupload/Press%20Council%20Annual%20Report%202020.pdf.

538

Paragraph 9(1)(c) of Schedule 2.

179

Complaints were resolved in a variety of ways including: the amendment or deletion of online

material, the publication of a correction, apology or clarification, an undertaking by the editor

in relation to future coverage of the subject matter of the complaint, the publication of a right

of reply, an explanation by the editor in relation to the background to the article, and a meeting

with the editor.538F

539

Decisions of the Press Ombudsman can be appealed to the Press Council.539F

540

The grounds for

appeal are:

 that the procedures followed in making the decision were not in accordance with the

published procedures for submitting and considering complaints;

 that significant new information relevant to the original complaint is available that could

not have been or was not made available to the Press Ombudsman before making the

decision;

 that there has been an error in the Press Ombudsman’s application of the Principles in

the Code of Practice.540F

541

According to the submission by the Press Council of Ireland and Press Ombudsman to the

Future of Media Commission:

“The level of participation and co-operation by member publications of the Press

Council newspapers, magazines and online-only news services in the complaints

handling process has been one-hundred per cent. The main concerns of complainants

relate to truth and accuracy, distinguishing fact from comment, respect for rights

including privacy, the avoidance of prejudice – all hallmarks of responsible news

reporting and high quality journalism in a constitutional democracy.”541F

542

The making of a complaint to the Press Ombudsman/Press Council does not prevent an

applicant from engaging in legal action. However, if the subject matter of the complaint is

subject to court proceedings, consideration of the complaint will be postponed until the

conclusion of the court proceedings provided that the court proceedings are concluded within

2 years and that all information in relation to the complaint is submitted to the Press

Ombudsman within the three month deadline for making a complaint.

The extent to which a member of the Press Council adhered to the Council’s code of standards

and abided by determinations of the Press Council or Press Ombudsman, or adhered to

equivalent standards, can be taken into account by the court in determining whether it was fair

and reasonable to publish a statement under section 26 (Fair and reasonable publication on a

matter of public interest) of the Act.

539

Annual Report of Press Council of Ireland and Office of the Press Ombudsman 2020 at p.12;

https://www.presscouncil.ie/_fileupload/Press%20Council%20Annual%20Report%202020.pdf.

540

Paragraph 9(2) of Schedule 2.

541

Press Ombudsman’s website: www.presscouncil.ie.

542

Submission by Press Council of Ireland and Press Ombudsman to the Future of Media Commission, January

2021; https://www.presscouncil.ie/office-of-the-press-ombudsman/press-releases-and-annual-reports/Press-

Releases/submission-by-press-council-of-ireland-and-press-ombudsman-to-the-future-of-media-commission

180

5.1.2 Statistics

Over its 13 years of operation, the Office of the Press Ombudsman has received an average of

350 complaints per annum. Many complaints are resolved directly by editors through the

Office’s conciliation process. In every instance where a formal decision of the Press

Ombudsman upheld a complaint, the decision of the Press Ombudsman and, where relevant,

the outcome of appeals to the Press Council have been published in accordance with strict

publication guidelines laid down by the Press Council.542F

543

Data from the 2020 Annual Report of the Press Council and Press Ombudsman543F

544

show that

the Office of the Press Ombudsman received 347 complaints in 2020 (55 of these complaints

related to one article, a court report of a case involving a 15 year old girl). The most common

ground of complaint concerned breaches of truth and accuracy requirements (Principle 1),

followed by children (Principle 9), prejudice (Principle 8) and breaches of privacy

requirements (Principle 5). Of the complaints received in 2020, 25 were resolved to the

satisfaction of the complainant and publisher, 25 were decided by the Press Ombudsman (7

were upheld (3 overturned on appeal), 12 were not upheld, sufficient remedial action was

offered by the publication to resolve the complaint in 5 cases, and there was insufficient

evidence in 1 case to enable a decision to be made). Three cases were still live at the end of

2020. The remainder were either dealt with in other ways (e.g. resolved by the editor to the

satisfaction of the complainant) or not dealt with for various reasons (e.g. not pursued beyond

preliminary stage, postponed because complaint was subject to ongoing court proceedings,

publication was not a member of the Press Council, complaint was out of time, complaint was

a matter for another regulatory authority (mainly the Broadcasting Authority of Ireland or the

Advertising Standards Authority of Ireland), etc.). Of the complaints that were resolved by the

Press Ombudsman to the satisfaction of complainants during 2020, the majority related to

online articles and quite a number related to court reports.544F

545

The Press Council considered 14 appeals (2 related to appeals carried forward from 2019) of

which 3 were upheld.

More detailed statistics in relation to 2020 are set out in Appendix 6

5.2 Broadcast Media - Broadcasting Authority

Section 49 of the Broadcasting Act 2009 provides that any person whose honour or reputation

has been impugned by an assertion of incorrect facts or information in a broadcast shall have a

right of reply. In accordance with subsection (3) of section 49, the Broadcasting Authority of

Ireland (BAI)

546

has developed a statutory Right of Reply Scheme.

547

543

Submission by Press Council of Ireland and Press Ombudsman to the Future of Media Commission, January

2021; https://www.presscouncil.ie/office-of-the-press-ombudsman/press-releases-and-annual-reports/Press-

Releases/submission-by-press-council-of-ireland-and-press-ombudsman-to-the-future-of-media-commission.

544

Annual Report 2020, Press Council of Ireland and Office of Press Ombudsman

https://www.presscouncil.ie/about-us/recent-decisions-and-news/press-council-of-ireland-and-office-of-the-

press-ombudsman-annual-report-2020

545

ibid at pp.. 12 & 13;

546

The Online Safety and Media Regulation Bill 2022 provides for the dissolution of the BAI and the

establishment of a Media Commission which will take on the present functions of the BAI.

547

Broadcasting Authority of Ireland RIGHT OF REPLY SCHEME (May 2011), www.bai.ie

181

The Right of Reply Scheme applies to all broadcasters regulated in the State. It does not apply

to broadcasters licensed in other countries, but broadly received in this jurisdiction, e.g. BBC,

Channel 4 or Sky.

A right of reply provides for the correction of incorrect facts or information; it does not provide

for the broadcast of an alternative or contrary opinion. The onus is on the person making the

request for a right of reply to provide as much detail as possible to show that the information

or facts broadcast about him/her were incorrect and impugned his/her reputation. The aim of

the scheme is to provide free and speedy redress without having to have recourse to legal

proceedings. Such a reply generally takes the form of a scripted statement drafted by the

broadcaster and approved by the requester.

A decision by a broadcaster to refuse to grant a right of reply (including a failure to provide a

response to the request, failure to agree on the form of the reply or failure to broadcast the

reply) can be appealed to the Compliance Committee of the BAI. A failure to comply with a

decision of the Compliance Committee in relation to the appeal can ultimately lead to an

application by the BAI to the High Court for an appropriate order to ensure compliance by the

broadcaster with the Committee’s decision. The High Court can rule that the broadcaster must

comply with the decision, vary the decision or refuse the BAI’s application.

Exercising a right of reply under the Scheme does not preclude a person from pursuing a legal

action against a broadcaster for defamation. However, the Broadcasting Act provides as

follows:

 the granting of a right of reply does not constitute an express or implied admission of

liability by the defendant in a defamation action and is not relevant to the court’s

determination of liability in the action;

548

 the defendant in a defamation action may give evidence in mitigation of damage, that

he/she granted, or offered to grant, a right of reply to the plaintiff in respect of the

statement to which the action relates, either before the bringing of the action, or as soon

as practicable thereafter, in circumstances where the action was commenced before there

was an opportunity to grant or offer to grant a right of reply;

549

and

 evidence of the granting of a right of reply is not admissible in any civil proceedings as

evidence of liability on the part of the defendant.

550

The right of reply scheme is separate from the BAI’s complaints process.

5.3 Online Safety and Media Regulation Bill

The updated General Scheme of the Online Safety and Media Regulation Bill was published

in December 2020.

551

The online Safety and Media Regulation Bill 2022 was published on 25

January 2022.

552

The Bill provides inter alia for the dissolution of the Broadcasting Authority

548

Section 49(13).

549

Section 49(14).

550

Section 49(16).

551

https://www.gov.ie/en/publication/d8e4c-online-safety-and-media-regulation-bill/.

552

https://www.oireachtas.ie/en/bills/bill/2022/6/.

182

of Ireland and the assignment of all the present functions of the Authority to the Media

Commission.

The right of reply scheme provided for in section 49 of the Broadcasting Act 2009 will be

retained (subject to necessary technical modifications)

553

and the functions of the BAI in

relation to the scheme will be transferred to the Media Commission.

554

5.4 Mediation Act 2017

The Mediation Act 2017 provides a comprehensive statutory framework to promote the

resolution of disputes through mediation as a viable, effective and efficient alternative to court

proceedings, thereby reducing legal costs, speeding up the resolution of disputes and reducing

the stress and acrimony which often accompanies court proceedings.

The Act inter alia:

 introduces an obligation on solicitors and barristers to advise parties to a dispute to

consider using mediation as a means of resolving the dispute;

 provides that a court may, on its own initiative or on the initiative of the parties, invite

the parties to consider mediation as a means of resolving the dispute.

The scope of the Act includes all civil proceedings that may be instituted before a court, save

for certain exceptions provided for in section 3 of the Act. Subsection (2) of section 3 provides

that nothing in the Act shall be construed as replacing a mediation or other dispute resolution

process provided in any other enactment or instrument made under any enactment, or in any

contract or agreement

Part 3 (sections 14 and 15) sets out the obligations of practicing solicitors and barristers as

regards mediation.

Section 14(1) provides that a practicing solicitor, prior to issuing proceedings on behalf of a

client, shall:

(a) advise the client to consider mediation as a means of attempting to resolve the dispute

the subject of the proposed proceedings;

(b) provide the client with information in respect of mediation services, including the

names and addresses of persons who provide mediation services;

(i) the advantages of resolving the dispute otherwise than by way of the proposed

proceedings, and

(ii) the benefits of mediation;

(d) advise the client that mediation is voluntary and may not be an appropriate means of

resolving the dispute where the safety of the client and/or their children is at risk.

553

Section 12 of Bill.

554

Section 59 of Bill.

183

In addition, section 14(2) and (3) provide for the obligations on solicitors to lodge the

appropriate documents with the courts, in advance of proceedings, that the client has been

advised of the option of mediation.

Section 15 of the Act provides that regulations may be made providing for the application to

practising barristers, who are authorised to issue proceedings on behalf of a client who is not

represented by a practising solicitor, of obligations similar to those imposed on practising

solicitor under section 14 (outlined above).

555

The Act provides for the recognition by the Minister for Justice of a body to be known as the

Mediation Council of Ireland. The functions of the Council include the promotion of public

awareness of, and provision of information to the public on the availability and operation of

mediation and the maintenance and development of standards in the provision of mediation.

The Justice Plan 2021 includes a commitment to “designate a body by Ministerial Order as

Mediation Council which satisfies the criteria set out in the relevant legislation, published in

2017, to support the development of the mediation profession as an important supplement and

alternative to traditional judicial processes”.

556

5.5 Review of the Administration of Civil Justice Report

The remit of the Review Group established to review and reform the administration of civil

justice in the State included a requirement to examine the current administration of civil justice

in the State with a view to encouraging alternative methods of dispute resolution. The report

of the Review Group concluded as follows:

“5.1

…. Ireland now has an extensive and robust legal framework supporting recourse to ADR

in the form of the rules of court and provisions of the Arbitration Act 2010 and the

Mediation Act 2017. The Review Group does not see any immediate need for further

enhancement of that framework.

5.2

The Review Group shares the view of some respondents that it is perhaps still too early

to gauge the practical effectiveness or otherwise of the recent mediation reforms in the

rules of court and the Mediation Act 2017 and that in the absence of data (the number of

cases wherein parties have been invited to consider mediation etc.) at this time, any such

assessment would be speculative.

5.3

The Review Group acknowledges and endorses views expressed by some respondents as

to the importance of education and orientation focussed on practitioners and litigants

and extension of ADR to categories of dispute where it is underutilised. These suggestions

555

Regulations have not been made under this section as of 1 November 2021.

556

http://www.justice.ie/en/JELR/Department_of_Justice_Action_Plan_2021.pdf/Files/Department_of_Justice_

Action_Plan_2021.pdf at p. 22.

184

speak to the need for cultural change and perhaps also a change in emphasis in certain

areas of professional legal training and education.”

557

5.6 Main Issues raised in course of review

The main issues raised in the course of the review of the Act were as set out hereunder.

5.6.1 Remit of the Press Council

558

A number of submissions to the review stated that it is unclear if the definition of

“periodical”

559

in the Act includes in its scope online only news publications or online news

sites of print media which publish unique content in addition to the versions of their printed

newspaper. In this regard it was suggested that the phrase “includes any version thereof

published on the internet or by other electronic means” could mean that publication on the

internet or by other electronic means is not in itself a periodical but comes within the definition

only if the internet or electronic version is a version of an existing periodical. It was therefore

suggested that the Act should be amended to clarify that online only news sites are publications

to reflect the changed media landscape and in order to ensure that the Press Council remains

relevant. Some submissions suggested that the scope of the Press Council should be extended

to include, for example, individual journalists and self-publishers (to respond to the increase in

self-publication, blogging and ‘citizen journalism’), app providers, online publication that is

not generated by a newspaper and online publications of broadcasters.

5.6.2 Role of the Press Council

The following suggestions were made in relation to the role of the Press Council/Press

Ombudsman.

Complainants should be encouraged to participate in the complaints process offered by the

Office of the Press Council/Press Ombudsman as an alternative to, or before taking, a

defamation action and publishers should be encouraged to sign up to the Press Council Code

of Practice by becoming a member of the Press Council.

560

Whether the plaintiff sought redress through the Press Council before initiating legal

proceedings, and publication of a correction, clarification, apology or an offer to take sufficient

action to address a complaint to the satisfaction of the Press Ombudsman should be taken into

account in determining the outcome of a subsequent court action.

561

557

Review of the Administration of Civil Justice Report at p. 405 (Chapter 12 Summary of Recommendations);

http://www.justice.ie/en/JELR/Review_of_the_Administration_of_Civil_Justice_-

_Review_Group_Report.pdf/Files/Review_of_the_Administration_of_Civil_Justice_-

_Review_Group_Report.pdf.

558

McCann Fitzgerald, NUJ, Press Council, Public Relations Institute of Ireland,

559

“Periodical” is defined in the 2009 Act as follows:

“Periodical” means any newspaper, magazine, journal or other publication that is printed, published or issued,

or that circulates, in the State at regular or substantially regular intervals and includes any version thereof

published on the internet or by other electronic means.

560

Johnsons Solicitors, Independent News and Media, Press Council, Public Relations Institute of Ireland.

561

Press Council.

185

A refusal to take up an offer of correction, clarification or apology should be considered in a

subsequent defamation case.

562

The fact that a media organisation is a member of the Press Council and adheres to its rules

should mitigate to some degree the idea that it has published a report irresponsibly – a

consideration when it comes to the amount of damages being considered.

563

The Press Ombudsman should be given the power to levy fines of up to €25,000 on media

organisations, with the option that such a fine would go to the complainant or to an agreed third

party.

564

Following the Symposium, it was suggested that solicitors should be obliged to inform their

clients in situations where defamation proceedings are being considered of the services

provided by the Press Council and Press Ombudsman.

565

5.6.3 Mediation

566

A number of submissions suggested that mediation should be encouraged/legislated for;

567

should be a statutory requirement;

568

or encouraged by way of sanctions imposed by the

Court.

569

Another submission suggested that a Defamation Recognition Commission should be

established.

570

One submission following the Symposium suggested that all plaintiffs should be required to

submit their complaint to the Press Council/Press Ombudsman, if eligible for consideration by

those bodies, before initiating legal proceedings and that all documents, including the outcome

of consideration of the complaint, should be submitted to the court. Evidence that the plaintiff’s

complaint had been submitted to the Press Ombudsman/Press Council but had been found to

be ineligible for consideration by that body because the article complained of did not fall within

the Press Council’s Code of Practice should be sufficient reason for commencing a defamation

action. The requirement for the matter to be considered in the first instance by the Press

Ombudsman/Press Council

should not be interpreted as requiring the courts to replicate, amend

or endorse any decision of the Press Ombudsman/Press Council.

571

Another submission, following the Symposium, suggested that consideration should be given

to establishing an ADR route under any revised legislation, a measure that would save costs

and increase the possibility of claims being resolved in a timely manner.

572

562

Press Council.

563

Independent News and Media.

564

Public Relations Institute of Ireland.

565

Press Ombudsman, Irish Council for Civil Liberties.

566

The Mediation Act 2017 has been enacted since these submission were made.

567

Law Society – anonymous solicitor(s), McCann Fitzgerald Solicitors.

568

Law Society – anonymous solicitor(s), Johnsons Solicitors.

569

Law Society – anonymous solicitor(s).

570

Crowley Millar Solicitors.

571

Professor John Horgan.

572

McCann Fitzgerald.

186

5.6.4 Right of reply scheme

The Department of Communications, Climate Action and Environment

573

noted that in its

report to the Minister for Communications, Climate Action and Environment on its statutory

review of the right of reply scheme under the Broadcasting Act, the Broadcasting Authority of

Ireland concluded that the operation and effectiveness of the Scheme are broadly positive. It

also noted that broadcasters are aware of the Scheme but that very few viewers and listeners

use the Scheme, potentially using other mechanisms such as the BAI complaints process or

proceedings under the Defamation Act for redress. The Department therefore suggested that

increased use of the Right of Reply Scheme should be encouraged, along with other examples

such as the remedies provided by the Office of the Press Ombudsman. One submission to the

review suggested that the Act should be amended to provide for a right of reply scheme.

574

5.7 Comparative Perspectives

In the United Kingdom, the Leveson Inquiry into press standards was established following

widespread concerns about alleged unlawful activities carried out by some sections of the press,

such as phone hacking. The Leveson Report

575

recommended a new framework for Press

regulation, with the principle of independent and effective self-regulation at its core. The

Report resulted in the establishment of the Press Recognition Panel which is an independent

body established in November 2014 under the Royal Charter on Self-Regulation of the Press

to oversee regulation of the press and other news publishers. Its role is to recognise regulators

(approved regulators) who satisfy the 29 criteria set out in the Royal Charter establishing the

Press Recognition Panel. The 29 criteria are intended to ensure that an approved regulator is,

among other things, independent, adequately funded, equipped with the powers and

mechanisms to ensure that publishers adhere to standards of accuracy and fairness, and provide

the public with proper opportunities to raise concerns about the conduct of the regulator’s

members. The role of the Press Recognition Panel is to ensure inter alia that approved

regulators satisfy these criteria.

576

At present there are two press regulators in the UK namely IMPRESS and IPSO, only one of

which is approved by the Press Regulation Panel i.e. IMPRESS (see below). However, a

significant number of print and most digital-only publishers are not members of a regulator.

As far as the traditional press are concerned, the Evening Standard, The Financial Times, the

Guardian and The Independent operate their own internal complaints and standards

processes.

577

Most digital only publishers are not members of a regulator; they exercise their

own in-house complaints systems.

578

Therefore, most news publishers (online and print) have

no regulation or external complaints handling processes.

573

The relevant function is now in the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media.

574

Michael Williams.

575

Report on An Inquiry into the Culture, Practices and Ethics of the Press (29 November 2012).

576

Press Recognition Panel website: https://pressrecognitionpanel.org.uk/.

577

Press Recognition Panel, Annual report on the recognition system (February 2021), p.16.

578

ibid.

187

IMPRESS regulates 104 publishers, who represent 174 titles, across the UK.

579

It is

independent of the publishers that it regulates. It inter alia, maintains a Standards Code and

assesses any breaches of the Code by its members. It also provides an arbitration scheme which

is free to all parties and is aimed at protecting publishers against the risk of court costs and

exemplary damages.

580

As indicated in the previous paragraph, IMPRESS is approved by the

Press Recognition Panel.

IPSO is a regulator for the newspaper and magazine industry in the UK. 88 publishers

representing 2,600 titles

581

are members of IPSO.

Its functions include the investigation of

complaints about printed and online material that may breach the Editor’s Code of Practice.

582

IPSO also runs low cost arbitration schemes (voluntary and compulsory) to settle legal disputes

involving IPSO members. If a claim is upheld, the arbitrator can generally grant the same relief

as a court (including damages).

583

However, IPSO is not approved by the Press Recognition

Panel as it does not meet all of the recognition criteria for the Scheme of Recognition

established under the Royal Charter on Self-Regulation of the Press. The Press Recognition

Panel’s 2021 Annual report on the recognition system describes IPSO as “a trade complaint

handling body with no independent oversight”.

584

According to the Press Recognition Panel’s

2021 report, IPSO has indicated that it does not intend to apply for recognition by the Press

Recognition Panel.

585

Sections 34 to 42 and Schedule 15 of the Crime and Courts Act 2013 set out a new system for

exemplary damages and costs in respect of publishers of news-related material aimed at

encouraging the press to join an approved regulator

586

(see Chapter 6).

Canada has two press complaints organisations, the National NewsMedia Council and the

Conseil de presse du Québec.

The National NewsMedia Council is a voluntary, self-regulatory ethics body. Membership of

the Council includes most daily and community newspapers, news magazines and online news

organisations across Canada, with the exception of Quebec which is served by the Conseil de

presse du Québec. The Council does not impose its own code of practice but expects members

to adhere to their own or some generally-accepted code of journalistic standards, practice and

ethics. It considers complaints against members concerning accuracy, journalistic standards

and ethics in gathering and reporting the news. It seeks to resolve complaints by mediation and

if that fails it will adjudicate on the complaint. Decisions on complaints are final and not subject

to appeal.

587

579

ibid, p. 8.

580

http://www.impress.press

581

ibid , p.14 (based on information from IPSO Annual Report 2019).

582

The Code is drawn up by the Editors Code of Practice Committee which is comprised of 10 editors from the

national, regional and magazine industry, 3 independent lay members and the chairman and chief executive of

IPSO. (Press Recognition Panel Annual Report, 2020, p.34).

583

http://www.ipso.co.uk

584

Press Recognition Panel Annual Report on recognition system 2021, p.13,

(http://www.pressrecognitionpanel.org.uk).

585

ibid, p. 15.

586

Explanatory Notes on Crime and Courts Act 2013, https://www.legislation.gov.uk.

587

http://www.mediacouncil.ca

188

Conseil de presse du Québec (Quebec Press Council) is a private tripartite organisation; its

Board of Directors and all its committees are made up of journalists, members appointed by

media organisations, and public members. Membership is voluntary. It is independent of

Government. Its scope extends to all media organisations that publish or broadcast in Quebec,

whether they belong to print or electronic media, regardless of whether they are members of

the Council. The Council acts as a dispute resolution panel for the Quebec press industry. It

has no regulative jurisdiction and no judicial, legislative or coercive powers. It imposes

sanctions that are strictly of a “moral nature”.

588

In Australia, the Australian Press Council is an independent self-regulatory body funded by

its members. The majority of major publications are members of the Council. The purpose of

the Council is to promote freedom of speech and responsible journalism. It is the principal body

responsible for responding to complaints about Australian newspapers, magazines, journals

and associated digital outlets.

589

The Press Council has no power to award compensation or

impose fines or other sanctions. Where a complaint is upheld, it can issue a reprimand or

censure; call for (but not require) the publication of an apology, retraction or correction; or

request the publisher to take other specified remedial action. It can also call for other specified

measures to prevent the recurrence of the type of breach in question.

590

The New Zealand Media Council is an independent self-regulatory media complaints body

funded by the industry. It was founded as the New Zealand Press Council but changed its name

in 2018 to reflect the incorporation of broadcasters and digital publishers into its membership.

It investigates complaints against its members, including in relation to accuracy, fairness and

balance, and privacy. The Media Council’s adjudications are based on ethical principles; it

does not recover debts or seek monetary compensation for complainants.

591

5.8 Options for Reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 broaden the remit of the Press Council;

 require a person to have recourse to the Press Council before initiating legal proceedings;

 impose an obligation on solicitors to advise clients of the role of the Press Council/Press

Ombudsman or the BAI right of reply scheme before issuing proceedings;

 provide that the fact that a media organisation is a member of the Press Council and

adheres to its rules should be taken into consideration in determining the quantum of

damages;

 include participation by a party in alternative dispute resolution processes among the

factors to be taken into account in assessing the redress to be awarded in defamation

proceedings;

 give the Press Council the power to levy fines;

 impose an obligation on parties to a dispute to consider mediation;

 establish a statutory body (with the power to grant redress, including compensation) to

adjudicate on complaints of defamation;

588

http://www.counseilpresse.qc.ca

589

http://www.presscouncil.org.au

590

Australian Press Council, Annual Report 2017-2018, p.17.

591

http://www.mediacouncil.org.nz

189

 provide for a new defence of right of reply.

Option 1: Broaden the remit of the Press Council

Option 1.1: Amend the Act to clarify that online only news sites fall within the definition of

periodical

Arguments in favour

 In light of the increasing prevalence of online only publications, and in order to be

relevant to modern forms of publishing, the remit of the Press Council should be

explicitly extended to cover online only news sites.

 Most, if not all, print publications already have an online presence; where a publication

is a member of the Press Council, their on-line versions fall within the remit of the Press

Council in the same way as the print versions. It would be logical to treat all online

publications in the same manner.

 This proposal would remove any doubts in relation to the remit of the Press Council.

 This would extend the use of the Press Council Code of Practice to support best practice.

Arguments against

 Some online only news publications (e.g. breakingnews.ie, TheJournal.ie) are already

members of the Press Council so it is not necessary to amend the law.

 Any proposal to amend the definition of ‘periodical’ would need to be carefully worded

so as to ensure that it does not include bloggers, citizen journalists, etc. It may be difficult

to define online news sites is such a way.

Option 1.2: Extend the remit of the Press Council to cover online publications by broadcasters

Arguments in favour

 Online publications of print media and online only publications are members of the Press

Council so it would be logical to allow broadcasters who publish online to become

members.

 The distinction between various media is no longer clear cut. “While newspapers are

becoming broadcasters, producing videos and podcasts, broadcasters are increasingly

producing text-based journalism online in blogs and other formats. In between, there is

the growing number of online-only publications that are neither newspapers nor

broadcasters.”

592

Press Council remit must cover online and social media, Michael Foley and Patrick Smyth, Irish Times, 17

August 2020, https://www.irishtimes.com/opinion/press-council-remit-must-cover-online-and-social-media-

1.4331574.

190

 Different regulatory systems apply to different journalists (even within the one

organisation). The Press Council provides a voluntary regime for print media and online-

only news platforms. Broadcasting is regulated under the Broadcasting Act by the

Broadcasting Authority of Ireland (BAI), but there is no regulatory system for online

offerings of broadcasters. Furthermore, the “BAI has an ethical code that covers news

and current affairs that is underpinned by law, leading to an anomaly whereby some

journalists in an organisation are ethical by law and others are ethical by following a

voluntary, ethical code”.

593

Extending the scope of the Press Council to online

publications of broadcasters would help introduce a more uniform system of regulation.

 In its submission to the Future of Media Commission, the Press Council and Press

Ombudsman stated:

“We also see the Council as continuing to be the regulator for online-only news

publications which do not have print editions. We see the Council’s function including

the regulation of video and audio inserts into its members publication. We are

confident that as the platforms merge and the distinction between platforms becomes

less clear there remains a clear and evident role for the Office of the Press

Ombudsman and the Press Council.”

594

 The remit of press/media councils in a number of Member States extends beyond

traditional media e.g. in Sweden, the scope of the Media Ombudsman/Media Council

595

extends to newspapers, magazines, broadcast media and their websites and social media;

in the Netherlands the remit of the Press Council extends to print, online, broadcasting,

and social media, as long as it relates to journalistic conduct;

596

and in Denmark the

scope of the Press Council

597

extends to print media, radio and TV, online media (covers

all kinds of websites as long as what is published on the website is imparted periodically

to the public and has a form of news representation; the website must be either registered

with the Press Council or receive media subsidies in order to fall within the competence

of the Press Council).

 The current ad hoc regulatory system is out of date and reflects a time when the

distinction between print and broadcasting was clear.

Arguments against

 Broadcasters are already subject to regulation by the BAI; articles published online by

broadcasters tend to reflect material published in their broadcasts; it would not be

appropriate to have broadcasters subject to both the BAI and Press Council.

Option 1.3: Extend the scope of the Press Council to include individual journalists, bloggers,

etc.

593

Press Council remit must cover online and social media, Michael Foley and Patrick Smyth, Irish Times, 17

August 2020, https://www.irishtimes.com/opinion/press-council-remit-must-cover-online-and-social-media-

1.4331574

594

Submission by Press Council of Ireland and Press Ombudsman to the Future of Media Commission, January

2021;https://www.presscouncil.ie/office-of-the-press-ombudsman/press-releases-and-annual-reports/Press-

Releases/submission-by-press-council-of-ireland-and-press-ombudsman-to-the-future-of-media-commission.

595

https://presscouncils.eu/members-sweden.

596

https://presscouncils.eu/members-netherlands.

597

https://presscouncils.eu/members-denmark.

191

Arguments in favour

 Extending the scope of the Press Council to include individual journalists, bloggers, etc.

would better reflect the reality of how information is communicated.

Arguments against

 Bloggers and “citizen journalists” are not the same as professional journalists; allowing

them access to Press Council membership might be perceived as a devaluation of the

profession of journalist.

 Material published in news publications is subject to editorial control which should act

as a filter that does not exist in the case of bloggers and citizen journalists.

 There would be difficulties of defining these concepts.

 The Press Council hasn’t requested that its remit be extended in this way.

 The report on Media Councils in the Digital Age

598

found that all organisations that were

surveyed as part of the study

599

indicated that they only take complaints about journalistic

content (but this concept is not defined); a broader scope was considered undesirable

because it “would go beyond the basic premise of media councils (which is that they deal

with journalistic content) and because of pragmatic considerations (the workload would

be too high)”.

600

Option 2: Require a person to have recourse to the Press Council/ Press Ombudsman in

advance of taking a court action for defamation

Arguments in favour

 Requiring recourse to the Press Council/Press Ombudsman complaint handling

mechanism would lead to the speedier resolution of complaints, reduce the burden

defamation actions place on the courts and lead to an overall reduction of the costs and

awards in defamation actions.

Arguments against

 The Act (section 6(2)) provides:

“The tort of defamation consists of the publication, by any means, of a defamatory

statement concerning a person to one or more than one person (other than the first-

mentioned person), and “defamation” shall be construed accordingly.”

598

Media Councils in the Digital Age, An inquiry into the practices of media self-regulatory bodies in the media

landscape today, Dr. Raymond A. Harder, Universiteit Antwerpen (Author) and Pieter Knapen, Vlaamse Raad

voor de Journalistiek (Project Supervisor);

https://presscouncils.eu/New-dataset-and-report-on-the-state-of-media-councils.

599

This report is based on a study of 24 media councils, composed of 15 organisations from EU Member States

and 9 from non-Member States plus 4 “ethical commission(s) embedded within the local journalists’ association

or media association” (2 from EU Member States and 2 from non-Member States); ibid at p5. Details of the

organisations surveyed are set out in Appendixes A to C of the report (pp. 20-24). Comparative Data on Media

Councils was also published as part of the project that resulted in this report; https://presscouncils.eu/New-dataset-

and-report-on-the-state-of-media-councils.

600

ibid at p. 11. (Media Councils in the Digital Age).

192

The Act is therefore not confined to the media.

 This proposal would apply to members of the Press Council only; it would not apply to

broadcast media, print media that are not members of the Council or others who publish

a defamatory statement.

 Requiring a person to first access the Press Council/Press Ombudsman complaint

procedure may give rise to constitutional and ECHR difficulties in relation to the right to

an effective remedy to vindicate the plaintiff’s right to the protection of his/her good

name.

 The current statutory powers of the Press Council/Press Ombudsman are limited and

restricted to a range of remedial actions with no hard enforcement powers. The powers

of the Press Council/Press Ombudsman would need to be significantly enhanced if a

requirement was to be imposed on the plaintiff to pursue this course of action before

applying to the Courts. Any proposal to enhance the powers of the Press Council/Press

Ombudsman may however give rise to legal difficulties.

 Requiring a person who wishes to obtain a remedy that only a court can offer (e.g.

damages) to have recourse to the Press Ombudsman/Press Council before having access

to the courts would add an additional step to defamation proceedings resulting in

increased costs and delays in resolving disputes.

Option 3: Impose an obligation on solicitors to advise clients of the role of the Press

Council/Press Ombudsman or the BAI right of reply scheme before issuing proceedings

Arguments in favour

 This would ensure that individuals are aware of the availability of the services of the

Press Council/Press Ombudsman and of the BAI right of reply scheme before

embarking on litigation. Any such provision could be modelled on sections 14 and 15

of the Mediation Act 2017. It would however need to be clarified that any such

provision does not supersede those provisions.

Arguments against

 The added value of any such provision may be limited as it is likely that a majority of

litigant wish to seek damages.

Option 4: Provide that the fact that a media organisation is a member of the Press Council

and adheres to its rules should be taken into consideration in determining the quantum of

damages

Arguments in favour

 This would reinforce the value of the Press Council and its Code of Practice.

 This would encourage publishers to become Press Council members and adhere to its

Code of Practice; adherence to the Code would help ensure high standards of journalism.

193

Arguments against

 Broadcasters cannot be members of the Press Council and there is no similar organisation

which they could join in order to benefit from any such proposal.

 Section 31(2) provides that in making an award of general damages in a defamation

action, regard shall be had to all the circumstances of the case; moreover, section 31(1)

provides that the parties in a defamation action may make submissions to the court in

relation to the matter of damages; it would therefore be open to the defendant to argue

that it is a member of the Press Council and adheres to its code of practice where it is

relevant in any given case.

Option 5: Include participation by a party in alternative dispute resolution processes among

the factors to be taken into account in assessing the redress to be awarded in defamation

proceedings

Arguments in favour

 This would encourage people to have recourse to the Press Council/Press Ombudsman

and may result in the resolution of disputes without recourse to the courts.

Arguments against

 This proposal would only apply to members of the Press Council.

 The remedies available to the Press Council are limited; a person who believes that he/she

has been the subject of a defamatory statement may wish to vindicate his/her good name

through the courts and avail of the possibility of receiving damages. Whether or not such

a person first sought redress through the Press Council should not affect the outcome of

a court case.

 The offer of amends procedure already provides a mechanism for defendants to issue an

apology and publish a correction together with the payment of damages and costs (if

any). The issuing of an offer of amends must be taken into account in mitigation of

damages where the question of damages is determined by the courts. This is a more

effective mechanism for defendants who make a genuine mistake to mitigate damages

that might otherwise be awarded against them.

Option 6: Empower the Press Council to levy fines

Arguments in favour

 There are no obvious arguments in favour of this proposal as defamation is a civil wrong.

Arguments against

 Providing for the imposition of fines in respect of defamation would have a chilling effect

on freedom of expression.

194

 Any proposal to grant the Press Council/Press Ombudsman, which is not a statutory

body,

601

powers to levy fines and make quasi-judicial determinations in relation to

alleged defamatory material would give rise to serious constitutional and legal issues

which would require careful consideration (and is unlikely to be legally permissible).

 Membership of the Press Council is voluntary; giving the Council the power to levy fines

could act as a disincentive to becoming a member of the Press Council.

 This proposal would mean that different rules apply to members of the Press Council and

to other persons who make defamatory statements.

 The Press Council hasn’t requested such a power.

 The report on Media Councils in the Digital Age

602

found that of the organisations

surveyed, only one could impose financial penalties namely, in the UK, IMPRESS may

impose a fine of up to 1% of annual turnover on a media outlet that breaches IMPRESS’s

Ethics Code.

603

Option 7: Impose obligation on parties to a dispute to consider mediation

Arguments in favour

 Mediation should be encouraged as an alternative to court proceedings as it would reduce

costs, result in speedier resolution of disputes, save court time, and facilitate the reaching

of a satisfactory outcome for both parties to the dispute.

 The General Scheme of the Online Safety and Media Regulation Bill imposes an

obligation on the parties to a dispute to consider mediation.

604

Arguments against

 The Mediation Act 2017 already provides a comprehensive statutory framework to

promote the resolution of disputes through mediation as a viable, effective and efficient

alternative to court proceedings. It is therefore not necessary to include a specific

provision in the Defamation Act requiring parties to a dispute to consider mediation.

Option 8: Establish a statutory body (with the power to grant redress, including

compensation or to impose an administrative financial sanction) to adjudicate on complaints

of defamation

Arguments in favour

Body with power to grant redress, including compensation

601

It is however recognised by statute (see 5.1.1).

602

Media Councils in the Digital Age, An inquiry into the practices of media self-regulatory bodies in the media

landscape today, dr. Raymond A. Harder, Universiteit Antwerpen (Author) and Pieter Knapen, Vlaamse Raad

voor de Journalistiek (Project Supervisor);

https://presscouncils.eu/New-dataset-and-report-on-the-state-of-media-councils.

603

ibid at pp. 16-15.

604

https://www.gov.ie/en/publication/d8e4c-online-safety-and-media-regulation-bill/.

195

 A statutory body with the power to adjudicate on complaints of defamation that could

grant redress, including compensation, would provide an accessible and cheap means of

vindicating an individual’s right to a good name.

Body with power to impose administrative financial sanctions

 A statutory body with the power to adjudicate on complaints and impose administrative

financial sanctions would encourage the adoption of high standards and safeguards to

protect an individual’s good name, including on the media, people who post on-line

media, etc.

Arguments against

General

 Defamation law involves the balancing of two constitutional rights, the right to freedom

of expression and the right to a good name; the balancing of those rights would best be

determined by the courts.

 Many of the remedies available under the Defamation Act are more appropriate to a court

e.g. the power to grant an order prohibiting the publication of a defamatory statement

(injunction).

 The relatively small number of defamation cases likely to be referred to such a statutory

body annually would not warrant the establishment of a body with wide-ranging powers.

Body with power to grant redress, including compensation

 The Constitution provides as follows:

“Justice shall be administered in courts established by law by judges appointed in

the manner provided by this Constitution, and, save in such special and limited cases

as may be prescribed by law, shall be administered in public.” (Article 34.1)

“Nothing in this Constitution shall operate to invalidate the exercise of limited

functions and powers of a judicial nature, in matters other than criminal matters, by

any person or body of persons duly authorised by law to exercise such functions and

powers, notwithstanding that such person or such body of persons is not a judge or

a court appointed or established as such under this Constitution.” (Article 37.1)

Therefore any proposal to establish such a body would give rise to constitutional issues

and would require careful consideration.

Body with power to impose administrative financial sanctions

 The power to impose administrative financial sanctions against persons (in particular the

media) in respect of allegations of defamation, could have a chilling effect on the

constitutional right to freedom of expression.

Option 9: Provide for a new defence of right of reply

Arguments in favour

 There are no obvious arguments in favour of this defence.

196

Arguments against

 A right of reply already exists under the Broadcasting Act and is one of the ways

complaints to the Press Ombudsman/Press Council may be resolved.

 The Defamation Act 2009 already provides for the defence of an offer to make amends

i.e. an offer to make a suitable correction of the statement that is alleged to be defamatory

and a sufficient apology, to publish that correction and apology in such manner as is

reasonable and practicable in the circumstances and to pay to the person such sum in

compensation or damages (if any), and such costs, as may be agreed by the parties or as

may be determined to be payable.

 The Circuit Court already has jurisdiction to make a declaratory order under section 28

of the Defamation Act or correction order under section 30, if a defendant is not willing

to offer a right of reply voluntarily.

Recommendations

The following options are recommended:

 Option 1.1: Broaden the remit of the Press Council to clarify that online-only news sites

fall within the definition of periodical,

 Option 1.2: Consider extending the remit of the Press Council to cover online

publications by broadcasters;

 Option 3: Impose an obligation on solicitors to advise clients of the role of the Press

Council/Press Ombudsman, or the BAI right of reply scheme, before issuing

proceedings;

 Option 5: Include participation by a party in alternative dispute resolution processes

among the factors to be taken into account in assessing the redress to be awarded in

defamation proceedings;

 Option 7: Impose an obligation on parties to a dispute to consider mediation.

The following options are not recommended:

 Option 1.3: Broaden the remit of the Press Council to include individual journalists,

bloggers, etc.;

 Option 2: Require a person to have recourse to the Press Council/ Press Ombudsman

before initiating legal proceedings;

 Option 4: Provide that the fact that a media organisation is a member of the Press Council

and adheres to its rules should be taken into consideration in determining the quantum of

damages;

 Option 6: Empower the Press Council to levy fines;

 Option 8: Establish a statutory body (with the power to grant redress, including

compensation or to impose an administrative financial sanction) to adjudicate on

complaints of defamation; and

 Option 9: Provide for a new defence of right to reply.

197

Chapter 6: Remedies for defamation

6.1 Damages

6.1.1 Current Legal Position

The Defamation Act 2009 contains a number of provisions in relation to damages as set out

below.

Section 6(5) provides that the tort of defamation is actionable without proof of special

damage.

605

Section 13 provides that the Supreme Court

606

may, in addition to any other order that it deems

appropriate to make, substitute for any amount of damages awarded to the plaintiff by the High

Court such amount as the Supreme Court considers appropriate.

Section 31 allows the parties in a defamation action to make submissions to the court in relation

to damages; and, in the case of a defamation action brought before a jury in the High Court,

requires the judge to give directions to the jury in relation to damages.

Furthermore, section 31 provides that in making an award of general damages,

607

the court

shall have regard to all of the circumstances of the case (subsection (3)); it sets out a

comprehensive, but non-exhaustive, list of factors which the court must have regard to when

determining damages (subsection (4)).

Subsection (6) provides that a defendant may, for the purposes of mitigating damages, give

evidence (a) with leave of the court, of any matter having a bearing on the plaintiff’s reputation

which is related to the defamatory statement, or (b) of an award of damages to the plaintiff in

another action taken in respect of a statement which contained substantially the same

allegations as are contained in the defamatory statement published by the defendant.

Subsection (7) provides that the court may, in a defamation action, make an award of damages

(special damages) to the plaintiff in respect of financial loss suffered by him/her as a result of

the injury to his/her reputation caused by the publication.

Section 32 provides for aggravated and punitive damages.

Aggravated damages may be awarded where the defendant conducted his/her defence in a

manner that aggravated the injury caused to the plaintiff’s reputation by the defamatory

statement; such damages can only be awarded where the court also finds the defendant liable

to pay compensatory damages to the plaintiff in respect of a defamatory statement (subsection

(1)).

605

Damages that can be calculated and quantified such as loss of earnings or medical expenses.

606

Section 74(1) of the Court of Appeal Act 2014 provides:

References (howsoever expressed) to the Supreme Court, in relation to an appeal, including proceedings

taken by way of case stated, which lies (or otherwise) to it in any enactment passed or made before the

establishment day, shall be construed as references to the Court of , unless the context otherwise requires.

607

Damages that the law presumes to flow from the defendant’s act.

198

Punitive damages may be awarded if it is proved that the defendant intended to publish the

defamatory statement and knew that the statement would be understood to refer to the plaintiff

and that it was untrue or was reckless as to whether or not it was true; such damages can only

be awarded where the court also finds the defendant liable to pay compensatory damages to

the plaintiff in respect of a defamatory statement (subsection (2)).

Both sections 31 and 32 provide that “court” means, in relation to a defamation action brought

in the High Court, the jury, if the High Court is sitting with a jury.

The role of general damages in a defamation action is to “compensate (the plaintiff) for the

damage to his reputation, vindicate his good name

608

and take account of the distress, hurt and

humiliation which the defamatory publication has caused”.

609

In Kinsella v. Kenmare

Resources and Charles Carville,

610

Irvine J held that “damage to a plaintiff’s reputation can

have far-reaching consequences” and that compensation “must be sufficiently large such that

if disclosed to a bystander it would readily convince them of the baselessness of the allegation

complained of ”.

611

Furthermore, the Court held that any award of damages must

“be fair to the plaintiff and the defendant and should not be excessive. An award should

certainly not be large to the point that it will not only have the effect of vindicating the

plaintiff’s good name, but also of restricting freedom of expression, particularly that

enjoyed by the media”.

6.1.2 Main issues raised in course of review

The general consensus among those who responded to the review was that the level of damages

awarded in defamation cases is excessive.

612

The concerns expressed in relation to the level of

damages included the following:

 Damages should be proportionate, fair to the plaintiff and defendant, and objectively

reasonable in light of the common good and social conditions in the State.

 Damages are extremely high in this jurisdiction compared with other common law

jurisdictions; they are out of proportion to the possible harm caused in many cases.

 The level of damages awarded in defamation cases has a chilling effect on freedom of

expression and negatively impacts on Ireland’s democratic system and international

reputation; the fear of long and expensive trials where juries can, and have, awarded very

large damages, may be an inhibiting factor in terms of journalists pursuing certain stories

and undermines journalists in their democratic duty to hold to account those in positions

of power and influence.

 The ECtHR has accepted that excessive awards of damages undermine the right to free

speech and a free press.

 Excessive awards could lead to the closure of newspapers and a loss of jobs.

608

The primary function, according to the judgment in Kinsella v. Kenmare Resources [2019] IECA 54.

609

Leech v. Independent Newspapers (Ireland) Limited [2014] IESC 79, quoting from de Rossa v. Independent

Newspapers [1999] IESC 63 [1999] 4 IR 432.

610

[2019] IECA 54.

611

Kinsella v. Kenmare Resources [2019] IECA 54, at para. 121.

612

Anonymous1, Anonymous2, L. Crowley, DCU Socio Legal Research Centre, DIT, K. Fitzpatrick, ,

Independent News and Media, Law Society (anonymous solicitors), McCann Fitzgerald, NewsBrands, T.

O’Conaill, E. O’Dell, Public Relations Ireland, D. Reynolds, RTE.

199

 Excessive damages are more punitive than compensatory.

 The costs of defending a defamation action are often quite high and exceed those in

personal injuries cases; costs should be capped at 30% of the award.

One contributor suggested that the changes in practice and procedure effected by section 31 of

the 2009 Act may be insufficient, and further reform may therefore be necessary, but noted that

at the time of the submission there was no evidence that the procedures were wanting or that

damages under the Act are too high because of lack of case-law under the Act.

613

It was argued

that there is a requirement for the High Court to be able to go further to guide juries and take

steps to prevent the awarding of excessive damages which are clearly punitive in nature, rather

than compensatory/to vindicate the plaintiff’s reputation.

614

Another argued that section 31 has

brought about only limited changes and defamation awards remain much higher than elsewhere

in Europe.

615

Having identified the general issues set out above, some specific recommendations were made

in relation to damages as set out hereunder.

Role of juries

A large number of submissions recommended that juries should be removed from defamation

actions or, alternatively, that their role should be limited; one of the main reasons for these

suggestions was the level of damages currently awarded by juries in defamation actions. The

role of juries is considered in Chapter 4.

Introduce a cap on damages, or a book of quantum

The following recommendations were made in relation to the quantum of damages:

 a cap on damages should be introduced;

 a book of quantum that specifies awards for different levels of damage should be drawn

up;

 courts should be required, in making an award of general damages, to have regard to the

levels of damages for pain and suffering awarded in claims for personal injuries.

The rationale for the introduction of one of the above proposals was that it would help reduce

the severity of the risk that a defamation action places on the media, without affecting the

protection of the right to a good name and reputation.

616

One submission to the review following the Symposium suggested that a plaintiff should be

required to explicitly set out the quantum of the damage caused and to pursue their action in a

court of appropriate jurisdiction for that quantum.

617

Closing instructions and submissions to jury

618

The following recommendations were made in relation to submissions and instructions to

juries:

613

E O’Dell.

614

Johnsons Solicitors.

615

Independent News and Media.

616

Anonymous1, L Crowley, K Fitzpatrick, Anonymous2, Independent News and Media, Journal Media, MGN

Ltd, T O’Conaill, E. O’Dell Press Council, Public Relations Institute of Ireland, D Reynolds.

617

ISME.

618

DCU Socio Legal Research Centre, Law Society (anonymous solicitor), Newsbrands, RTE, McCann Fitzgerald

(following Symposium).

200

 Counsel’s closing submissions and the judge’s charge to the jury should be split into two

stages: counsels’ closing arguments and the judge’s charge to the jury should address

liability only; if the material complained of is found to be defamatory, the issue of

damages could then be addressed by the judge and counsel.

 Instructions to juries should reference liability and damages equally; instructions should

not be dominated by the question of quantum of damages.

 Clearer guidance as to the role of judge and jury in setting damages should be introduced.

 Judges should instruct the jury on what they believe appropriate damages would be; strict

guidelines on the harm necessary for large awards could be established.

 The Act should set out clearly the nature of the guidance to be provided to juries by the

judge so that juries can assess damages at a reasonable and consistent level.

 One submission

619

to the review following the Symposium recommended that parties

should be permitted to suggest a range of appropriate damages for consideration by the

jury.

 Other submissions to the review following the Symposium suggested that better guidance

should be given on appropriate damages which would take into account the factors of

fairness and proportionality; consideration should be given to drawing up guidelines in

determining appropriate levels of awards as exists already for personal injuries.

620

 A submission to the review following the Symposium suggested that provision should be

made for a clear and unambiguous structure for guidance for juries in respect of damages.

The Act should set out clearly the nature of the guidance that can be provided, as

confusion remains about what can and cannot be said to juries about damages.

621

Other suggestions

One submission suggested that the courts should be able to grant modest damages along with

summary relief orders.

622

A number of submissions suggested that provisions in relation to aggravated and punitive

damages need to be amended; aggravated damages deny persons a right to a fair hearing under

Article 6(1) ECHR.

623

Submissions to the review following the Symposium suggested that defamation actions should

be initiated in the Circuit Court rather than the High Court in order to reduce the level of

damages.

624

619

McCann Fitzgerald.

620

ICEL, Press Ombudsman.

621

McCann Fitzgerald.

622

The Bar Council of Ireland.

623

Anonymous1, L Crowley, K Fitzpatrick, Anonymous2, H O’Driscoll.

624

Press Ombudsman, Professor J Horgan.

201

Another submission to the review following the Symposium suggested that section 26 of the

Act could be amended to include a provision whereby courts would be required to take into

account whether the plaintiff had availed of the services of the Press Ombudsman and Press

Council when determining damages.

625

6.1.3 Symposium on Reform of Defamation Law

In his contribution to the Symposium on Reform of Defamation Law, Professor Neville Cox

noted that prior to the coming into force of section 32 of the 2009 Act the issue of aggravated

damages was complex.

626

On the one hand, at common law aggravated damages could be

awarded if a defendant’s conduct following the initial publication had compounded the harm

generated by the initial publication. On the other hand, subsequent publication can generate a

separate cause of action and so should not, in theory, factor into the calculation of damages in

the previous case. For this reason, the tendency was to see subsequent publications as relevant

but only in assessing malice specifically or the state of mind generally of the publisher. In Ward

v. The Donegal Times,

627

the Court declined to award aggravated damages for subsequent

publications but allowed those publications to be taken into account in determining the discount

that should apply to the quantum of damages arising from the making of an offer of amends

under section 23 of the 2009 Act. The changes made by section 32 of the Act do not appear to

have been considered in that case.

Moreover, Professor Cox pointed out that aggravated damages could always be awarded having

regard to the manner in which a defence was conducted but that section 32 provides that it is

only this that can warrant such an award. He stated that there is a question as to whether or not

the common law approach to aggravated damages survived the enactment of the 2009 Act.

Professor Cox therefore suggested that the question of whether the common law concept of

aggravated damages survived the enactment of the 2009 Act is an issue that would merit

clarification in any reform of the law.

628

With regard to the issue of damages more generally, Professor Cox discussed a number of

alternatives that might be considered for amendment of the Act as follows:

 a judicially imposed convention of capping damages awards or a legislative cap: either

approach would be problematic; the quantum of damages is a question of fact and thus

not one on which the court should rule as a matter of law. Furthermore, the purpose of

damages in defamation cases, while nominally compensatory, is multifaceted and must

be part vindictive (i.e. vindicate the good name of the plaintiff), part deterrent and part

punitive.

629

The quantum awarded is also a signal of the falsity of the publication and the

damage that has been caused. There is therefore a concern that if judges were to take over

the issue of assessing the level of damage and as a result the levels were to be reduced,

625

ICEL.

626

Prof. Neville Cox, (Trinity College Dublin), ‘Irish defamation law: the 2009 Act and the need for reform’.

(Download PDF) at Prof. Neville Cox, (Trinity College Dublin), ‘Irish defamation law: the 2009 Act and the

need for reform’. (Download PDF) at.:

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf .

627

[2016] IEHC 711.

628

Defamation Law and the 2009 Defamation Act, Professor Neville Cox, November 2019,

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf

629

Nolan v. Sunday Newspapers Ltd [2017] IEHC 367.

202

this could signal to the general public that what had happened to a particular plaintiff as

a result of a defamatory statement was not particularly serious; this might result in an

inadequate protection of the right to a good name.

 guidance to appellate courts: recast section 31 of the 2009 Act to provide guidance to

appellate courts on proportionality of awards/factors to be taken into account in assessing

the quantum of damages (in light of ECtHR judgment in Independent Newspapers

(Ireland Ltd

630

): such an approach might be constitutionally suspect.

 directions to jury: the legislation should be more explicit as to what the judge’s directions

to the jury should entail, and specify how references to previous awards and to awards in

personal injury actions should be used in such cases.

631

Guidance may be obtained from the comprehensive judgments of the Supreme Court in

McDonagh v. Sunday Newspapers (No. 2)

632

and Kinsella v. Kenmare Resources.

633

McDonagh (No. 2), Denham C.J. indicated that the factors that would be relevant in

determining the amount of damages were the gravity of the libel, its effect on the plaintiff,

the extent of the publication and the conduct of the newspaper. Denham C.J. also

indicated that it was relevant that the plaintiff had a blemished reputation and that it was

helpful to bear in mind factors such as the value of money, the average wage and the cost

of a car. O’Donnell J. pointed to the explicit protection of the right to a good name in the

Constitution, the nature of defamation cases, which unless settled, will involve the

defendant persisting in the view that publication was lawful, and the role of damages in

vindicating reputation, especially in a digital age where the law of libel was the only

“pro-reputation” counter-balance to the tendency to seek attention in a crowded

marketplace through lurid headlines and outrageous stories. In Kinsella

634

, Irvine J.

indicated that juries should be informed that awards are not taxed and asked how long it

would take someone to earn a specified amount of money.

With regard to referring to awards in previous defamation cases and in personal injuries

cases, there are arguments both ways; on the one hand it can be argued that the benefit

of such an approach is that it can give a jury a sense of perspective; on the other it can be

argued that conclusions of fact (quantum of damages) in cases should not set precedents

for future cases particularly because of the fact-dependent nature of defamation actions

and the fact that the functions of damages in defamation cases are conceptually different

to those in, for example, personal injuries actions.

630

Independent Newspapers (Ireland) Ltd v. Ireland [2017] ECHR 567 (App no. 28199/15).

631

In a subsequent High Court case, Higgins v. Irish Aviation Authority [2016] IEHC 245, counsel on both sides,

and the trial judge, addressed the jury as to awards made to plaintiffs in other cases of defamation, and as to the

maximum usually applicable to awards of general damages in personal injuries cases. This was the first time a

jury was provided with information in relation to exact damages awarded in other cases (see Higgins v. The Irish

Aviation Authority [2020] IECA 157).

632

[2017] IESC 59.

633

[2019] IECA 54.

634

Kinsella v. Kenmare Resources and Charles Carville [2019] IECA 54.

203

6.1.4 Comparative Perspectives

635

In England and Wales, the Defamation Act 1952 (sections 3 and 12) contains limited

provisions in relation to damages. There is an effective capping on damages in England and

Wales in line with awards for non-pecuniary loss in personal injuries cases (around

£300,000).

636

The Leveson Report

637

recommended a new framework for Press regulation, with the principle

of self-regulation at its core. Sections 34 to 42 and Schedule 15 of the Crime and Courts Act

2013 set out a new system for exemplary damages and costs in respect of publishers of news-

related material aimed at encouraging the press to join a recognised regulator

638

(see Chapter

639

. Section 34 of the Act provides that exemplary damages may not be awarded against a

defendant if the defendant was a member of an approved regulator. The court may however

disregard this provision in specified circumstances: exemplary damages may be awarded under

section 34 if the court is satisfied that the defendant’s conduct has shown a deliberate and

reckless disregard of an outrageous nature for the claimant’s rights, the conduct is such that the

court should punish the defendant for it, and other remedies would not be adequate. The

awarding of exemplary damages is a matter for the judge alone (it cannot be left to the jury, in

a jury trial). Section 39 provides that aggravated damages may be awarded only to compensate

for mental distress and not for purposes of punishment. Section 40, which has not been

commenced, broadly requires publishers of newspapers and other print media to bear the costs

of unsuccessful libel plaintiffs if they are not registered with a recognised self-regulator. Other

than in exceptional circumstances, a person who sues a publisher member of an approved

regulator rather than raising the point through the approved regulator’s arbitration system

would pay their own costs and those of the publisher, irrespective of the outcome of the case.

The arguments against the commencement of section 40 have focused on the concern that, by

choosing not to join an approved regulator, a publisher risks facing court costs in a legal action

even if they win.

640

In March 2018, the Government stated that it intended to ask Parliament to

repeal section 40.

641

Section 40 does not appear to have been repealed.

642

In Northern Ireland, the report on Reform of Defamation Law in Northern Ireland does not

include general proposals in relation to damages.

643

In Scotland, Part 2 of the Defamation and Malicious Publications (Scotland) Act 2021 includes

provisions in relation to damages in the case of malicious publication which damages property

or business interests of the plaintiff.

635

The issue of corporate bodies and damages is examined in Chapter 2.

636

Scott, Dr Andrew, ‘Cascading effort in defamation reform: four key themes’, Presentation to Symposium on

Reform of Defamation Law, 14 November 2019

http://www.justice.ie/en/JELR/AScott_Paper_Defamation.pdf/Files/AScott_Paper_Defamation.pdf

637

Report on An Inquiry into the Culture, Practices and Ethics of the Press (29 November 2012)

638

Explanatory Notes on Crime and Courts Act 2013, https://www.legislation.gov.uk.

639

There is at present only one recognised self-regulatory body, IMPRESS which represents 104 publishers,

who represent 174 titles, across the UK (see chapter 5).

640

Press Recognition Panel, Annual report on the recognition system (February 2021), at p. 9.

641

ibid at p. 19.

642

https://www.legislation.gov.uk/ukpga/2013/22/section/40.

643

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, Dr Andrew

Scott, June 2016.

204

In Australia, section 34 of the Model Defamation Provisions provides that in determining the

amount of damages to be awarded in defamation proceedings, the court is to ensure that there

is an appropriate and rational relationship between the harm sustained by the plaintiff and the

amount of damages awarded. Section 35 (as amended)

644

provides that the maximum amount

that may be awarded for non-economic loss is $250,000 and provides that this amount should

be awarded in only the most serious cases. This amount is subject to annual review and stands

at $432,500 (approximately €280,000) with effect from 1 July 2021. A separate award of

aggravated damages may be awarded where warranted. A plaintiff cannot be awarded

exemplary or punitive damages for defamation. Section 38 sets out a non-exhaustive list of

factors that may be taken into account in mitigation of damages e.g. the defendant has issued

an apology or published a correction, the plaintiff has already recovered damages for

defamation in respect of any other publication of matter having the same meaning or effect as

the defamatory material. If the court finds for the plaintiff as to more than one cause of action,

damages may be assessed in a single sum.

In New Zealand, the Defamation Act 1992 provides that in proceedings for defamation, it is

not necessary to allege or prove special damage. The Act provides that punitive damages may

only be awarded where the defendant has acted in flagrant disregard of the rights of the

plaintiff. It sets out matters that must be taken into account in mitigation of damages namely

(i) the nature, extent, form, manner, and time of the publication by the defendant of any

correction, retraction, apology, statement of explanation and/or any rebuttal; (ii) the terms of

any injunction or declaration that the court proposes to make or grant; and (iii) any delay for

which the plaintiff is responsible between the publication of the matter in respect of which the

proceedings are brought and the decision of the court in those proceedings.

Furthermore, the Act also sets out additional factors that may be taken into account in

mitigation of damages; specifically it provides that the defendant may prove (i) specific

instances of misconduct by the plaintiff in order to establish that the plaintiff is a person whose

reputation is generally bad in the aspect to which the proceedings relate; (ii) that the plaintiff

has already brought proceedings, recovered damages or received or agreed to receive

compensation in respect of any other publication by the defendant, or by another person, of the

same or substantially the same matter.

Nothing in the Act limits any other rule of law by virtue of which any matter is required or

permitted to be taken into account in mitigation of damages.

Where, on appeal, a verdict is set aside the court may, with the consent of the parties, substitute

its own award of damages for that of the trial court.

6.1.5 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 clarify the situations where aggravated damages may be awarded;

 amend section 31 to set out in greater detail the guidance to be given in relation to

damages;

 provide for a cap on damages;

644

The Model Defamation Amendment Provisions 2020 were approved by the Council of Attorneys-General on

27 July 2020; each state and territory must now enact legislation to give effect to the amended provisions.

205

 draw up a book of quantum or guidelines;

 require all cases to be initiated in the Circuit Court;

 allow courts to award modest damages with summary reliefs;

 set out rules in relation to closing instructions to the jury;

 require the plaintiff to explicitly set out the quantum of damage caused.

Option 1: Clarify the situations where aggravated damages may be awarded

Arguments in favour

 The law in relation to aggravated damages should be clear.

Arguments against

 There are no obvious arguments against this proposal.

In order to clarify the law, the Act could be amended to specifically provide that –

(i) the common law no longer applies so that aggravated damages can only be awarded

where the defendant conducted his/her defence in a manner that aggravated the injury

caused to the plaintiff’s reputation by the defamatory statement; this proposal would

mean that aggravated damages could not be awarded in respect of the manner in which

the wrong was committed, or the conduct of the wrongdoer after the commission of the

wrong as set out in Conway v. Irish National Teachers Organisation

645

;

(ii) the common law no longer applies and set out in section 32(1) additional factors that

can be taken into account in determining whether aggravated damages can be awarded

e.g. the manner in which the wrong was committed, the conduct of the wrongdoer after

the commission of the wrong; etc.; this would clarify the circumstances in which

aggravated damages can be awarded; or

(iii) section 32(1) is without prejudice to the common law; this would mean that factors

other than those set out in section 32(1) could be taken into account in determining

whether or not aggravated damages should be awarded; it would also allow for

flexibility in relation to the issues to be taken into account.

Option 2: Amend section 31 to set out in greater detail the issues to be taken into account in

determining damages

In assessing whether or not damages awards in defamation cases are excessive, the appellate

courts consider the following:

(a) the gravity of the defamation;

(b) the effect on the plaintiff;

(d) the conduct of the defendant; and

(e) the conduct of the plaintiff (where relevant).

In Leech v. Independent Newspapers

646

, McKechnie J. stated:

645

[1991] 2 IR 305.

646

Leech v. Independent Newspapers [2014] IESC 79.

206

“The following are some of the factors which will require consideration in any assessment

of damages in this type of case, to be viewed in the context in which such matters have

arisen:-

(a) The extent of the wrong, of the harm inflicted and of the injury done;

(b) The damage to one’s reputation and standing in the eyes of reasonably minded

members of the community;

future challenge by any random member of the public who suspects that there is “no

smoke without fire”;

(d) The degree of hurt, distress and humiliation suffered and any other aspect of one’s

feelings that has been affected;

(e) The extent of the intrusion into one’s personal, business, professional or social life,

or any combination thereof, to include the invasion of one’s privacy;

(f) Any other harmful effect, causatively resulting from the wrongdoing, not above

mentioned;

(g) The gravity of the libel;

(h) The extent of the circulated publication;

(i) The response and reaction to the allegations as made; retraction and apology; re-

affirmation of truth and justification – even with different meanings to those as pleaded;

(j) The overall conduct of the defendant, including those examples identified in Conway

as constituting aggravation ([1991] 2 I.R. 305 at 317), and even extending to matters of

exemplary condemnation on occasions; and

(k) Any other factor specific to the individual case which falls within the parameters of

the principles as outlined.”

647

Moreover, in McDonagh

648

(which pre-dates the 2009 Act) Denham C.J. noted that “it is

helpful to keep in mind factors such as, including but not limited to, the value of money, the

average wage, and the cost of a car”. She also noted that the awards in personal injuries cases

have some relevance but the fact that there are usually high special damages awarded in cases

of very serious injuries may cloud the comparison. She noted however that in assessing the

matters of proportionality and reasonableness of damages in the future, the 2009 Act is

relevant.

In Kinsella, Irvine J. endorsed the notion of juries being referred to the fact that damages awards

are not taxed and being asked how long it would take a person to earn a specific amount of

money.

In Higgins v. Irish Aviation Authority,

649

the Court of Appeal noted that this was the first case

where a jury was provided with information on awards in other defamation cases as well as the

maximum level of general damages in personal injury cases. It pointed out that while previous

cases are of some assistance, “such assistance is necessarily limited by reason of the very

different circumstances surrounding each case”.

To the extent that it does not already do so, section 31 could therefore be amended to include

the factors set out above.

647

Leech v. Independent Newspapers [2014] IESC 79, (No. 1 judgment by McKechnie J.) at para. 64.

648

McDonagh v. Sunday Newspapers Ltd, [2017] IESC 59.

649

[2020] IECA 277.

207

Arguments in favour

 This would address uncertainty in relation to the nature of guidance that can be given to

juries (if they are retained in High Court actions) and provide greater guidance for the

courts (in particular juries if they are retained in High Court actions) in determining the

level of damages that should be awarded.

 It would provide greater guidance for parties to a defamation action which might

encourage the settlement of such actions at an early stage.

Arguments against

 Section 31 already sets out a comprehensive list of issues that must be taken into account

in determining damages.

 Subsection (3) of section 31 provides that in making an award of general damages in a

defamation action regard shall be had to all the circumstances of the case; the court can,

in an appropriate case, take any other relevant factors into account (of its own volition or

on the basis of submissions on behalf of the parties or, in the case of jury trials,

instructions from the judge).

Option 3: Provide for a cap on damages

On 30 September 2020, the Law Reform Commission published a Report on Capping Damages

in Personal Injuries Actions.

650

The Report examines whether it would be constitutionally

permissible, or otherwise desirable, to provide for a statutory regime that would place a cap or

tariff on some or all categories of general damages in personal injuries cases. The report states:

“The Commission concludes that, in principle, legislation capping awards of general

damages in personal injuries litigation could be constitutionally permissible. How any

particular proposal is formulated will influence how likely or unlikely it is to be struck

down. For instance… legislation that imposes a presumptive cap will, all other things

being equal, be more likely to survive constitutional challenge than legislation imposing

a mandatory cap. The actual amounts chosen in a cap, or caps, will also strongly

influence whether the measure is taken to be proportionate under the Heaney standard

or rational under the Tuohy standard.”

651

The Report emphasises however that the Commission is an advisory body and that the

constitutionality of proposed or enacted legislation is primarily a matter for the Government

(advised by the Attorney General), Oireachtas and, ultimately, the courts.

Arguments in favour

 In Independent Newspapers (Ireland) Ltd v. Ireland

652

, the ECtHR noted that

unpredictably large awards of damages in defamation cases are considered capable, in

principle, of having a chilling effect on the media’s right to freedom of expression under

Article 10 of the European Convention on Human Rights (ECHR).

650

Law Reform Commission Report, Capping Damages in Personal Injuries Actions (LRC 126-2020).

651

Law Reform Commission Report, Capping Damages in Personal Injuries Actions (LRC 126-2020) at p. 143

652

[2017] ECHR 567 (App no. 28199/15).

208

 Cox and McCullough note that some commentators suggest that the level of damages

awarded in defamation cases is excessive and that, where media defendants and matters

of public interest are concerned, excessively high damages can have a chilling effect on

freedom of expression and discussion on matters of public interest.

653

A cap on damages

could help to ensure against excessive awards of damages.

 A cap on damages would provide clear guidelines to courts (in particular juries if they

are retained in High Court cases).

 A cap on damages would provide clear guidelines for parties to defamation actions and

might encourage the early settlement of disputes.

Arguments against

 Defamation law involves the balancing of every citizen’s right to a good name and the

right to freedom of expression under the Constitution. Any proposal to introduce a cap

on damages therefore gives rise to complex constitutional issues which would need

careful consideration.

 An award of damages in a defamation action must compensate the plaintiff for the

damage to his/her reputation, vindicate his/her good name and take account of the

distress, hurt and humiliation which the publication caused.

654

An award must be

sufficiently large such that if disclosed to a bystander it would readily convince them of

the baselessness of the allegation complained of.

655

Any cap on damages would therefore have to be set sufficiently high to achieve those

objectives in serious cases. A high cap may not be relevant to many cases as the effects

of a defamatory statement may vary considerably from case to case. However, such a cap

could be seen as the norm and could have the unintended effect of resulting in the award

of high levels of damages in the majority of cases, particularly High Court jury cases.

On the other hand, the setting of a low cap on damages could mean that courts would

frequently have to exceed the cap in order to ensure the vindication of the good name of

the plaintiff, which could have the effect of making the cap redundant.

Moreover, a low cap on damages could be seen as suggesting that damaging a person’s

reputation is not a serious issue and could fail to vindicate a person’s right to the

protection of his/her reputation. Furthermore, setting a low cap could fail to take into

account that harm to reputation can be genuinely destructive and lead to social

ostracisation and opprobrium.

 Where a case is taken to the Circuit Court, there is already a cap on the amount of

damages that can be awarded (€75,000); only plaintiffs who believe that they have

suffered serious damage as a result of a defamatory statement are likely to take their

653

Cox, N. and McCullough, E., Defamation Law and Practice at para. 11-02.

654

Hamilton CJ in de Rossa v. Independent Newspapers plc. [1999] IESC 63 [1999] 4 IR 432 (at para 125) quoting

from John v MGN Ltd. [1997] Q.B. 586.

655

Kinsella v. Kenmare Holdings Plc Carville [2019] IECA 54 and Charles Carville.

209

case to the High Court for fear of being responsible for costs should the award of

damages be less that the Circuit Court limit.

 A high cap on damages could be seen as a benchmark for the settlement of disputes and

could make plaintiffs reluctant to accept lower settlements.

 Section 13 of the Act specifically permits the Supreme Court

656

on appeal to make its

own assessment of the quantum of damages, and to substitute its own figure for the sum

awarded by the High Court, something the Court had previously been reluctant to do.

657

A number of large jury awards have been substantially reduced on appeal in recent high

profile cases e.g. the Court of Appeal reduced the damages awarded in Kinsella v.

Kenmare Resources from €10m to €250,000 and in Higgins v. Irish Aviation Authority

658

from €387,000 to €76,500 (following the application of a 10% discount as a result of the

defendant making an offer of amends). In McDonagh v. Sunday Newspapers Ltd

659

, the

Supreme Court suggested that it would have reduced the damages awarded by a High

Court jury from €900,000 to a figure closer to €75,000 had the case not been settled

before the Court issued its judgments. Furthermore, in Christie v. TV3,

660

which was

heard in the High Court by a judge sitting alone, the Court of Appeal reduced the damages

award from €140,000 to €36,000 (after a 40% discount was applied to take account of

the offer of amends).

These cases should therefore provide guidelines for future defamation awards.

 A provision in England and Wales

661

similar to section 13 of the 2009 Act has resulted

in the creation of an accepted maximum level for appellate court-approved awards in

defamation cases. This maximum is a guide only;

662

in 2019 it stood at around £300,000

for the most serious defamations.

663

 While no two defamations are the same, section 13 holds out the prospect of a corpus of

decisions building up over the years and in effect setting a scale of awards for the most

serious defamations. The existence of such a scale would not prevent courts/juries from

making very large awards, but could guide plaintiffs and defendants and encourage

settlements as both sides could be advised in advance where on the scale their case might

be, in the event of the plaintiff succeeding.

664

656

Section 74(1) of the Court of Appeal Act 2014 provides:

References (howsoever expressed) to the Supreme Court, in relation to an appeal, including proceedings taken by

way of case stated, which lies (or otherwise) to it in any enactment passed or made before the establishment day,

shall be construed as references to the Court of Appeal, unless the context otherwise requires.

657

Maher, John, The Law of Defamation (2

edn.) at pp. 431 & 432.

658

[2020] IECA 157.

659

[2017] IESC 46.

660

Christie v. TV3 Television Networks Limited, [2017] IECA 128.

661

Courts and Legal Services Act 1990, section 8(3).

662

Maher, John, The Law of Defamation (2

edn.) at p. 442

663

Scott, Dr Andrew, Presentation to Symposium on Reform of Defamation Law, 14 November 2019.

664

Maher J, The Law of Defamation (2

edn.) at p. 432.

210

Option 4: Draw up a book of quantum

665

or guidelines

Arguments in favour

 A book of quantum or guidelines should help ensure greater consistency in relation to

the damages that are awarded in defamation cases.

 A book of quantum or guidelines could encourage the settling of cases at an early stage.

Arguments against

 It would be very difficult to draw up a book of quantum or guidelines for the following

reasons:

(i) it is very difficult to compare defamation cases; in McDonagh,

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O’Donnell J.

noted that “it is a much more difficult task to compare defamations than it is to

compare personal injuries” and unlike personal injuries, it “is more difficult to

measure defamation in cases on any set scale”. In the same case, Dunne J. stated

that it is “difficult to make a direct comparison between different defamations

because of the variety of factors that may be at play, such as the nature of the

defamatory allegation, the character and reputation of the person defamed, the

extent of the publication and the impact on the person concerned, to name but a

few”

667

;

(ii) in Kinsella,

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Irvine J. noted that not only is the function of an award of damages

in a defamation action different, for example, to that in a personal injuries action,

but the injury inflicted is much more difficult to value because of its often highly

subjective nature;

(iii) there is a lack of data available on which a book of quantum or guidance could

be based as very few defamation cases are decided by appellate courts annually

(see Chapter 4)

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In McDonagh,

670

McKechnie J. stated:

“The courts have, for the most part, come up with a reasonable idea of what

a broken leg is worth, the value of a lost arm, and so on. There is a market

which bears this out. Such is not solely dependent on court judgments or

related to the Book of Quantum, but in substantial part reflects the notorious

practice, which has been commonplace now for decades or more, of

settlements being reached between indemnifiers and plaintiffs, thus creating

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The recommendation by respondents in relation to a book of quantum was made before the enactment of the

Judicial Council Act 2019 which provides for the establishment of a Personal Injuries Guidelines Committee and

the adoption by the Judicial Council of the Personal Injuries Guidelines which will replace the book of quantum.

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McDonagh v. Sunday Newspapers (No. 2) [2017] IESC 59 2, para 46.

667

McDonagh v. Sunday Newspapers (No. 2) [2017] IESC 59 3, para 11.

668

Kinsella v. Kenmare Resources Carville [2019] IECA 54.

669

The 2016 Book of Quantum for personal injuries awards was based on an examination of representative

samples of over 51,000 closed personal injuries claims from 2013 and 2014 based on actual figures from court

cases, insurance company settlements, State Claims Agency cases and PIAB data. (Law Reform Issues Paper

Capp.ing Damages in Personal Injuries, para. 1.11)

670

McDonagh v. Sunday Newspapers (No. 2) [2017] IESC 59 4 at para 42.

211

information which can readily be obtained within this market. There is also

reasonable similarity between like cases. Accepting, of course, that a

person’s age, profession, trade or calling and one’s physical and other

characteristic will have a bearing (as they will on special damages, e.g.

injury to a footballer’s leg, a pianist’s fingers, or the like), nevertheless, in

general one will not have to search too far to find a reasonable comparator

in respect of most personal injuries claims. Adjustments or variations may be

required but in most instances such can be achieved….. By contrast, by

virtue of both the relative infrequency of defamation cases and the extent to

which they necessarily turn on their own facts, the same cannot be said of

defamation;”

(iv) it is argued that the current level of damages is too high so any book of quantum

would be unlikely to have the effect of reducing defamation awards.

 Appellate courts (in particular in cases decided following the ECtHR judgment of 17

June 2017 in Independent Newspapers (Ireland) Ltd v. Ireland)

671

set out in detail the

reasoning for the level of damages awarded to successful plaintiffs. This reasoning

should provide guidance for future awards.

 Section 31 of the Act already sets out issues to be taken into account in determining the

level of damages; this is a more appropriate approach given that it is not possible to

compare defamation cases.

Option 5: Require all cases to be initiated in Circuit Court

See chapter 4 – Circuit Court and High Court Jurisdictions.

Option 6: Allow courts to award modest damages with summary reliefs

See below regarding summary relief.

Option 7: Set out rules in relation to closing instructions to jury

This option will not be relevant if the recommendation to abolish juries is accepted (see chapter

2).

Arguments in favour

 This would address concerns raised by some respondents to the review in relation to the

instructions issued to juries.

Arguments against

 This type of detailed issue in relation to the conduct of cases would best be dealt with by

judges or in rules of court.

 This issue will not arise if juries are removed from defamation actions.

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[2017] ECHR 567 (App no. 28199/15).

212

Option 8: Require the plaintiff to explicitly set out the quantum of damage caused

Arguments in favour

 An obligation on the plaintiff to explicitly set out the quantum of damage caused might

facilitate the settlement of disputes as the defendant would be in a position to determine

whether to settle the case or to allow it to go to court.

Arguments against

 Section 6(5) of the 2009 Act provides that the tort of defamation is actionable without

proof of special damage. This proposal would tend to undermine section 6(5).

 A defamatory statement is defined as “a statement that tends to injure a person’s

reputation in the eyes of reasonable members of society”. It would therefore be very

difficult for the plaintiff to specify in monetary terms the amount of damage caused.

 This recommendation would overlap with the recommendation to provide for the making

of a tender by the defendant following receipt of a tender by the plaintiff which would be

taken into account in determining costs.

Recommendations

The following options are recommended:

 Option 1: Clarify the situations where aggravated damages may be awarded;

 Option 2: Amend section 31 to set out in greater detail the issues to be taken into account

in determining damages.

The following options are not recommended:

 Option 3: Provide for a cap on damages;

 Option 4: Draw up a book of quantum or guidelines;

 Option 7: Set out rules in relation to closing instructions to jury;

 Option 8: Require the plaintiff to explicitly set out the quantum of damage caused.

6.2 Lodgement of money in settlement of action

6.2.1 Current legal position

Section 29 of the 2009 Act provides that in any action for damages for defamation the defendant

may, upon giving notice in writing to the plaintiff, pay a sum of money into court in satisfaction

of the action when filing his/her defence to the action. Where a payment is made, the plaintiff

may accept the payment (i) in accordance with the relevant rule of court,

672

or (ii) inform the

court, on notice to the defendant, of his/her acceptance of the payment in full settlement of the

action. The lodgement can be made without any admission of liability.

Order 22, rule (1A) of the Rules of the Superior Courts provides that in an action for damages

for defamation the defendant may, upon giving notice in writing to the plaintiff, pay a sum of

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Such rule of court for the time being in force as provides for the payment into court of a sum of money in

satisfaction of an action for damages for defamation.

213

money into court in satisfaction of the action in accordance with section 29 of the 2009 Act.

Order 15, rule (9A) of the Circuit Court Rules makes similar provision for payment into court.

6.2.2 Main issues raised in course of review

The following amendments to section 29 were proposed in the course of the review:

 it should be possible to make a lodgement even if an offer to make amends has been made

under section 23;

673

 it should be possible to make a lodgement at any stage of the proceedings/the wording of

the section should be clarified in relation to when and how a lodgement can properly be

made;

674

 cost orders should take into account the difference between the damages awarded and the

amount lodged into court;

675

a judge should be obliged to take into account the level of

success of the plaintiff in beating the payment into court or persuading the court that

aspects of the claim were not covered by the defence.

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6.2.3 Lessons from comparative jurisdictions

Defamation legislation in the UK, Australia, New Zealand and Ontario does not appear to

include specific provisions in relation to payments/lodgements into court. It would appear

therefore that this issue may be dealt with in procedural law or rules of court.

6.2.4 Options for reform

Based on the submissions received, the following options were identified:

 allow for the making of a lodgement where an offer of amends has been made;

 remove the requirement that a lodgement must be made when the defence is being

provided so that the issue could be dealt with in rules of court.

Option 1: Allow for the making of a lodgement where an offer of amends has been made

Arguments in favour

 A defendant might be encouraged to make a reasonable lodgement and a plaintiff might

be encouraged to accept such a lodgement in order to avoid costs, which would facilitate

the early settlement of the case.

Arguments against

 There are no obvious arguments against this recommendation.

673

RTE.

674

MGM Ltd.

675

NewsBrands, MGM Ltd.

676

NewsBrands.

214

Option 2: Remove the requirement that a lodgement must be made when the defence is being

provided so that the issue could be dealt with in rules of court

Arguments in favour

 This would be in line with Order 22 Rule 1(1) of the Superior Courts. (A lodgement in a

defamation action is made under Order 22 Rule 1(1A)).

677

Arguments against

 There are no obvious arguments against this proposal.

Recommendations

The following options for reform are recommended:

 Option 1: Allow for the making of a lodgement where an offer of amends has been made;

and

 Option 2: Remove the requirement that a lodgement must be made when the defence is

being provided so that the issue could be dealt with in rules of court.

6.3 Declaratory Order, Correction Order, Order Prohibiting Publication

(Injunction) and Summary Disposal of Action

6.3.1 Current Legal position

Declaratory order

Section 28 of the Act provides that a person may apply to the Circuit Court for a declaratory

order i.e. an order declaring that a statement was false and defamatory.

677

Rules of Superior Courts, Order 22, Rule (1), (1A) and (2) provide as follows:1. (1) In any action for a debt or

damages (other than an action to which Section 1(1) of the Courts Act 1988 applies) or in an admiralty action the

defendant may—

(a) at any time after he has entered an appearance in the action and

(i) before it is set down for trial or

(ii) in the case of proceedings subject to case management under Part II of Order 63C, within four

weeks of the fixing of a trial date or

(b) at any later time by leave of the Court, upon notice to the plaintiff,

pay into Court a sum of money in satisfaction of the amount recoverable by the plaintiff from the defendant

in the claim or (where several causes of action are joined in one action) in satisfaction of the amount

recoverable by the plaintiff from the defendant in one or more of the causes of action.

(1A) In an action for damages for defamation the defendant may, upon giving notice in writing to the plaintiff,

pay a sum of money into court in satisfaction of the action in accordance with section 29 of the Defamation Act

2009.

(2) A defendant may once, without leave, and upon notice to the plaintiff, pay into Court an additional sum of

money as an increase in a payment made under paragraph (1) hereof. Such notice must be given and payment

made at least three months before the date on which the action is first listed for hearing. Such increased

lodgement shall thereupon become the sum paid into Court and the date of such increased payment the date of

the payment into Court. If such notice is not given, and such payment not made as aforesaid the payment made,

under paragraph (1) shall be deemed to be the only payment into Court and this Order shall be construed

accordingly.

215

Before making such an order the court must be satisfied that:

(a) the statement is defamatory and the respondent has no defence,

(b) the applicant requested the respondent to make and publish an apology, correction or

retraction of the statement, and

correction or retraction the same or similar prominence as was given to the offending statement.

An applicant who makes an application under this section is not entitled to bring any other

proceedings arising out of the statement to which the application relates.

Damages cannot be awarded on foot of an application for a declaratory order; the court can

however make a correction order and an order prohibiting further publication of the defamatory

statement.

Correction order

Section 30 of the Act provides that where, in a defamation action, there is a finding that a

statement was defamatory and the defendant has no defence, the court may, on the application

of the plaintiff, make a correction order directing the defendant to publish a correction of the

defamatory statement. This relief is available regardless of whether the plaintiff seeks

declaratory relief, a prohibition order, or damages.

Order prohibiting publication or further publication (injunction)

Section 33 provides that the court may, upon the application of the plaintiff, make an order

prohibiting the publication or further publication of a statement if in its opinion the statement

is defamatory and the defendant has no defence to the action that is likely to succeed. An order

under this section does not prohibit the reporting of the making of the order provided that the

reporting does not include the publication of the statement which the order relates. Such an

order can be an interim, interlocutory or permanent order.

Summary Disposal of Action

Section 34 (subsection (1)) provides that the court may, on the application of the plaintiff, grant

summary relief (i.e. grant either a correction order, or an order prohibiting further publication

of the statement to which the action relates, without proceeding to a full hearing )

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if it is

satisfied that -

(a) the statement in respect of which the action was brought is defamatory, and

(b) the defendant has no defence that is reasonably likely to succeed.

A plaintiff who makes such an application is not entitled to damages.

Similarly, section 34 (subsection (2)) provides that the court may, upon application of the

defendant, dismiss the action summarily (without proceeding to a full hearing) if it is satisfied

that the statement in respect of which the action was brought is not reasonably capable of being

found to have a defamatory meaning.

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Section 2.

216

6.3.2 Main issues raised in course of review

Declaratory order

In the submissions to the review, the following observations/suggestions were made in relation

to section 28:

 section 28 is very useful, efficient and cost effective but applying for a declaratory order

is risky for plaintiffs as in order to prevent a declaratory order being made a defendant

only needs to show that he/she has an arguable defence. It can only therefore be used

where success is effectively guaranteed thereby reducing its utility;

679

 section 28 should be clarified to require a judge to explore the evidence, including oral

evidence, to verify that a defendant has no defence of merit before making a declaratory

order;

680

 the fact that no other proceedings can be brought if the application fails is a deterrent to

a plaintiff in availing of such an order;

681

 the defence is not effective as it is voluntary;

682

 the Explanatory Memorandum on the Act states that section 28 is intended to provide an

expeditious avenue of redress for a plaintiff where damages are not being sought (and

cannot be awarded against the defendant). However, in Lowry v Smyth,

683

it was held that

in order to obtain summary judgment under section 34 of the Act it would be necessary

for the plaintiff to satisfy the judge that the defendant has no defence with a reasonable

chance of success. Therefore, if the defendant had merely an arguable case to suggest

that his/her defence might be reasonably likely to succeed, then such an application

would fail. The court added, albeit obiter, that there was an even higher burden of proof

imposed on the plaintiff under section 28 i.e. he/she would have to prove that the

defendant had no defence. This means that section 28 has very little utility as it would be

almost impossible for a plaintiff to obtain a declaratory order and if he/she brings such

an application but fails he/she cannot seek any other remedy.

Correction order

It was suggested that a correction order is not effective as it is voluntary.

684

Basis for granting summary relief

The following proposals for amendments to section 34 were made in response to the review:

679

Johnsons Solicitors.

680

The Bar Council of Ireland.

681

The Bar Council of Ireland; William Fry, Solicitors.

682

Crowley Millar Solicitors.

683

Lowry v Smyth [2012] IR 400.

684

Crowley Millar Solicitors.

217

 some modest award of damages should be allowed on an application for summary relief

which would make this procedure a more attractive option to try to achieve speedy and

straightforward resolution of an action;

685

 the requirement to prove that the defendant has no arguable case to suggest that the

defence might be reasonably likely to succeed sets a very high bar so many plaintiffs will

take their chances on bringing their case to trial;

686

 consideration should be given to widening the grounds on which plaintiffs’ claims may

be dismissed in appropriate circumstances; there are no provisions in the Act for the

dismissal of claims on the grounds of no ‘real and substantial tort’ e.g. an issue that arises

frequently as regards on-line defamation, where only a small number of people in Ireland,

if any, may have viewed the publication; there are few interlocutory measures available

to encourage settlement or to enable unmeritorious claims to be dismissed;

687

 the section should be amended to permit any party to the proceedings to apply for

summary disposal at any stage.

688

6.3.3 Symposium on Reform of Defamation Law

In his presentation to the Symposium on Reform of Defamation Law, Professor Neville Cox

noted that the test for injunctive relief (section 33) and summary relief (section 34) is that the

defendant has “no defence to the action that is reasonably likely to succeed” whereas a

declaratory order (section 28) or a correction order (section 30) can only be made if there is

“no defence”.

689

He pointed out that the absence of the words “that is likely to succeed” in the

cases of declaratory relief and correction order would seem to imply that “if there was a defence

that was not reasonably likely to succeed – indeed a defence that was fanciful or specious –

then relief could not be granted”. This greatly limits the potential relevance of these reliefs as

they can, unless consented to, be resisted simply by the defendant putting forward any kind of

defence, even one that is not likely to succeed. In Lowry v. Smyth,

690

Kerins P. held that a

plaintiff would have to satisfy the court that the defendant had no arguable case to suggest that

his/her defence was reasonably likely to succeed in the case of summary relief or that the

defendant had no defence for the purposes of a declaratory order. Professor Cox explained that

this means that there are huge obstacles for a plaintiff seeking relief under sections 28, 30, 33

or 34. He also noted that the burden of proof in relation to the absence of a defence rests on the

plaintiff. In Gilroy & Byrne v. O’Leary,

691

Allen J. concluded that notwithstanding the

difference in wording, the tests under sections 28, 30, 33 and 34 are the same and, because of

the seriousness of what was at stake, would necessarily entail the applicant demonstrating that

the statement was defamatory and that the defendant had no defence. Allen J. also held that the

threshold test for injunctive relief under the Act was the same as that which had previously

existed under common law.

685

The Bar Council of Ireland.

686

William Fry.

687

McCann Fitzgerald.

688

MGM Ltd.

689

Prof. Neville Cox, (Trinity College Dublin), ‘Irish defamation law: the 2009 Act and the need for reform’.

(Download PDF) at Prof. Neville Cox, (Trinity College Dublin), ‘Irish defamation law: the 2009 Act and the

need for reform’. (Download PDF) at.:

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf .

690

[2012] IEHC 22.

691

[2019] IEHC 52.

218

The above analysis led Professor Cox to suggest that the following issues might be examined

as part of the review of the Act:

 the terminology differences between the four sections which has caused confusion, but

may have no impact;

 the extremely high tests for all four forms of relief;

 the different approaches adopted in respect of plaintiffs and defendants under section 34;

a plaintiff can obtain summary disposal of the action if he/she can show that the material

is defamatory and the defendant has no defence that is reasonably likely to succeed.

However, a defendant can only obtain summary disposal if he/she can show that the

statement is not reasonably capable of being found to have a defamatory meaning. There

is no provision for a defendant to obtain an order for summary disposal if he/she can

show that the plaintiff was manifestly not identified, the statement was manifestly not

published, or if there is some defence that must, inevitably succeed. Furthermore, it is

unclear how to reconcile the summary disposal power under section 34 as it benefits

defendants with the court’s inherent power to strike out an action as an abuse of process

or as manifestly ill-founded.

6.3.4 Comparative Perspectives

In England, Wales and Northern Ireland,

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sections 8 to 10 of the Defamation Act 1996

apply to summary disposal of defamation claims. The Act provides that the court may;

 dismiss the plaintiff’s claim if it appears to the court that it has no realistic prospect of

success and there is no reason why it should be tried;

 give judgment for the plaintiff and grant summary relief if it appears to the court that

there is no defence to the claim which has a realistic prospect of success, and there is no

other reason why the claim should be tried.

Summary relief is defined as a declaration that the statement was false and defamatory of the

plaintiff; an order that the defendant publish or cause to be published a suitable correction and

apology; damages not exceeding £10,000 or such other amount as may be prescribed; an order

restraining the defendant from publishing or further publishing the matter complained of. The

content of any correction and apology, and the time, manner, form and place of publication is

a matter, in the first instance, for the parties but if they cannot agree on these issues the matter

may be determined by the courts.

The 2016 report on Reform of Defamation Law in Northern Ireland

693

does not propose any

changes to sections 8 to 11 of the 1996 Act.

In New Zealand, section 26 of the Defamation Act 1992 provides that in any proceedings for

defamation, the court may, on application by the plaintiff, make a recommendation that the

defendant publish, or cause to be published, a correction of the matter that is the subject of the

proceedings. Where the defendant complies with the recommendation, the court may award

costs to the plaintiff, the plaintiff is entitled to no other relief or remedy against the defendant,

and the proceedings are deemed to be finally determined. Where the defendant fails to comply

692

In their application to Northern Ireland, sections 8 to 10 apply only to proceedings in the High Court (section

11).

693

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, Dr Andrew

Scott, June 2016.

219

with the recommendation, if the court gives final judgment in favour of the plaintiff the failure

to comply with the recommendation will be taken into account in assessing damages (if any)

and the plaintiff is entitled to costs (unless the court otherwise orders).

In Ontario, the “rarest and clearest of cases” test applies to the granting of interlocutory

injunctive relief. The rule prohibits such relief being granted unless the impugned words are so

manifestly defamatory and impossible to justify that an action in defamation would almost

certainly succeed. In recent decisions, the test has been characterised as a “guiding principle

…. that interlocutory injunctions should only be granted to restrain in advance written or

spoken words in the rarest and clearest of cases”.

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6.3.5 Options for reform

Based on the submissions received and the experience in other relevant jurisdictions, the

following options were identified:

 review sections 28, 30, 33 and 34 to ensure consistency in wording;

 extend the grounds on which a defendant can obtain summary relief to include where

he/she can show that the plaintiff was manifestly not identified, the statement was

manifestly not published, or if the defendant has a defence that will succeed;

 remove the prohibition in section 28(4) on the taking of any other action;

 allow for the award of limited damages (e.g. up to €10,000) where summary relief is

granted under section 34;

 amend section 30 of the Act (‘Correction order’) to provide that unless the plaintiff

requests otherwise, the correction of a defamatory statement is to be published with

equal prominence to the publication of the defamatory statement.

Option 1: Review wording of sections 28, 30, 33 and 34 with a view to clarifying any

differences in wording

Arguments in favour

 The difference in wording used in these sections has been raised judicially as well as by

a number of commentators.

 The implications of the different wording is not clear and has created confusion.

Arguments against

 There are no obvious arguments against this proposal.

Option 2: Extend the grounds on which a defendant can obtain summary relief to include

where he/she can show that the plaintiff was manifestly not identified, the statement was

manifestly not published, or if the defendant has a defence that will succeed

Arguments in favour

 The grounds on which a defendant can seek to have an action dismissed under section

34(2) of the 2009 Act are currently very limited (i.e. that the statement in respect of which

the action was brought is not reasonably capable of being found to have a defamatory

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Defamation Law in the Internet Age, Law Commission of Ontario, March 2020 at pp. 54 & 55.

220

meaning). Extending the grounds on which a case could be dismissed on the application

of the defendant would add value to section 34(2).

Arguments against

 The courts already have jurisdiction to strike out pleadings which fail to disclose a

reasonable cause of action or defence.

695

Furthermore, a court may dismiss an action

where it is of the view that it is frivolous or vexatious or bound to fail.

696

 Extending the grounds on which a defendant may seek to have a case dismissed to include

a situation where a defendant has a defence that will succeed may not be suitable for

summary judgment.

Option 3: Remove the prohibition in section 28(4) on the taking of any other action

Arguments in favour

 The threshold for obtaining a declaratory order under section 28 is very high (the

respondent has no defence); a plaintiff who fails to obtain such an order might still have

an arguable case and should not be prevented from pursuing his/her case.

 The prohibition in subsection (4) means that no matter what information emerges during

the course of the hearing e.g. information that would give rise to aggravated or punitive

damages, the plaintiff cannot take any further proceedings based on the defamatory

statement which may make plaintiffs reluctant to avail of this provision.

697

 It appears that this section has been rarely used so removing this restriction might make

the section more attractive.

Arguments against

 Section 28(5) already provides that an applicant may also obtain a correction order under

section 30 and/or a prohibition order under section 33.

 It is open to a plaintiff who wishes to obtain alternative redress to seek it from the outset.

 Allowing an applicant who succeeds in obtaining a declaratory order to seek alternative

redress (e.g. damages) could have the effect of prejudicing the outcome of the subsequent

case.

 Allowing an applicant who fails to obtain summary relief to go on to seek other forms of

relief would add to the costs associated with defamation actions.

Option 4: Allow for the award of limited damages (e.g. up to €10,000) where summary relief

is granted under section 34

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Rules of Superior Courts, Order 19, rule 28.

696

Maher J., The Law of Defamation, 2

edn., at p. 419.

697

Maher J, at p. 426.

221

Arguments in favour

 This would provide an incentive to avail of summary relief which should facilitate the

early resolution of disputes.

 Summary relief can only be awarded under section 34 where the defendant has no

defence to the action that is reasonably likely to succeed. Allowing for the awarding of

limited damages in such cases should facilitate a person to vindicate his/her right to a

good name where there is “no defence to the action that is reasonably likely to succeed”

without incurring the expense and delay involved in a full trial.

 This objective could easily be achieved by amending the definition of “summary relief”

to include an award of limited damages.

698

Arguments against

 The legal implications of allowing for the award of damages without a hearing would

need careful consideration.

 There is a danger that allowing for the award of up to €10,000 on the basis of summary

proceedings could be seen as setting a benchmark for damages in non-serious cases

which could militate against the settlement of less serious cases as plaintiffs may prefer

to avail of the summary proceedings rather than settle their case.

Option 5: Amend section 30 of the Act (‘Correction order’) to provide that unless the plaintiff

requests otherwise, the correction of a defamatory statement is to be published with equal

prominence to the publication of the defamatory statement.

Arguments in favour

 This would ensure the effectiveness of a correction of a defamatory statement.

 It would add to and reinforce the requirement under section 30 that a correction (unless

the plaintiff otherwise requests) must be published in such manner as will ensure that it

is communicated to all or substantially all of those persons whom the defamatory

statement was published.

Arguments against

 The requirement under section 30 that a correction (unless the plaintiff otherwise

requests) must be published in such manner as will ensure that it is communicated to all

or substantially all of those persons whom the defamatory statement was published may

be adequate.

Recommendations

698

Summary relief is currently defined in section 2 of the Act as follows:

“summary relief” means, in relation to a defamation action –

(a) a correction order, or

(b) an order prohibiting further publication of the statement to which the action relates.

222

The following options for reform are recommended:

 Option 1: review wording of sections 28, 30, 33 and 34 with a view to clarifying any

differences in wording;

 Option 4: consider whether to allow for the award of limited damages (e.g. up to €10,000)

where summary relief is granted under section 34;

 Option 5: amend section 30 of the Act (‘Correction order’) to provide that unless the

plaintiff requests otherwise, the correction of a defamatory statement is to be published

with equal prominence to the publication of the defamatory statement.

The following options for reform are not recommended:

 Option 2: Extend the grounds on which a defendant can obtain summary relief to include

where he/she can show that the plaintiff was manifestly not identified, the statement was

manifestly not published, or if the defendant has a defence that will succeed;

 Option 3: Remove the prohibition in section 28(4) on the taking of any other action.

223

Chapter 7: Online defamation: special considerations

7.1 Overview

The Defamation Act 2009 expressly applies to a defamatory statement that is published on

the internet, and also, much more broadly, to one published via electronic communications

generally.

However, a number of stakeholders argued that the Act does not adequately address the rapid

development, complexity and global reach of online communications – which throw up a

number of issues and challenges for national and EU law regarding defamatory online

statements.

Part 7.2 of this chapter identifies some specific aspects of online communication that raise

particular issues or challenges for Irish defamation law.

Part 7.3 then outlines the main legal provisions relevant to online defamation - under the

Defamation Act 2009, the EU e-Commerce Directive 2009, and the recent EU proposal for

a ‘Digital Services Act’, a new EU Regulation to modernise and extend EU regulation of

digital communication. It also considers a judgment of the European Court of Human Rights

on the potential liability of online service providers for the content of user-generated material

hosted on their sites.

Part 7.4 looks at the practical application of defamation law by Irish courts regarding online

defamation, including the use of important remedies developed by the courts, such as the

‘Norwich Pharmacal’ order, for an online services provider to provide identifying details of

an anonymous poster of defamatory material.

Part 7.5 briefly outlines parallel reform developments: the 2016 Law Reform Commission

report on Harmful Communications and Digital Safety, and the publication in December 2020

of a revised and expanded General Scheme of the Online Safety and Media Regulation Bill.

(In January 2022, the Government published the Online Safety and Media Regulation Bill. It

proposes to reform the regulatory structures for online media, including replacing the

Broadcasting Authority of Ireland with a new Media Commission and Online Safety

Commissioner (while retaining the ‘Right of Reply’ scheme).)

Part 7.6 then outlines relevant law reforms in other common law jurisdictions regarding

online defamation.

Part 7.7 summarises stakeholders’ views and issues regarding online defamation, and Part

7.8 sets out options and recommendations for reform in this area.

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7.2 The special nature of online defamation

In recent years, the media landscape has been transformed by the development, and rapid

proliferation, of online publication. Some media organisations operate exclusively online,

while even traditional news media now tend to publish their content online, as well as their

traditional print or broadcast publication. More lately, there has been the development and

rapid expansion of social media publication, which is done mainly through mobile phones

and other personal communication devices, in parallel to the more conventional internet-

based publication.

Defamation law also applies to online publication, but the new characteristics of these

rapidly developing forms of communication throw up a number of questions and challenges.

Both national and international defamation law, and judges charged with interpreting and

applying the law, are still coming to terms with these. The challenges include:

7.2.1 Ease and speed of online publication

With modern internet communications, anyone with an internet connection is able to publish

material, commentary and statements, which can then be replicated or disseminated widely

across multiple platforms, irrespective of physical geography or borders. With modern web

analytical technology and alt-metrics, it is often possible to quantify the impact of a

particular article, webpage, blog post or social media statement, by counting the instances of

access, clicks, downloads, shares or other engagement.

699

However, the sheer speed and

global reach of online communication means that a defamatory statement could potentially

reach huge audiences across the world within hours. This greatly magnifies the potential

damage caused to an individual plaintiff and the potential liability of defendants.

Moreover, online communication now allows for easy and cost-free linking, retweeting, re-

posting or otherwise republishing by multiple users in different countries. That can make it

extremely difficult, or impossible, to be sure that all instances of a defamatory publication

have been identified and removed.

Professor Neville Cox noted, in his paper to the Symposium, that “the fact that section 31 of

the [Defamation] Act, in dealing with damages awards, specifically lists the extent of

publication as a relevant factor in assessing quantum should, at least in theory, mean that

concerns with the inherent breadth of internet publication would be covered”

700

. However,

a further concern for defamation plaintiffs regarding online publication is that since the

material can be published online without any cost to the person posting it, a person defamed

by the post may often find that they cannot in practice recover any damages, or even their

legal costs, from the defendant.

In Tansey v. Gill,

701

Peart J. commented that:

“The internet has facilitated an inexpensive, easy, and instantaneous means whereby

unscrupulous persons or ill motivated malcontents may give vent to their anger and

their perceived grievances against any person, where the allegations are patently

699

See John Maher, The Law of Defamation, 2

edition, 2018, p. 90-93

700

Prof. Neville Cox, (Trinity College Dublin), ‘Irish defamation law: the 2009 Act and the need for reform’ at

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf .

701

Tansey v. Gill [2012] IEHC 42, [2012] 1 IR 380.

225

untrue, or where no right thinking person would consider them to be reasonable or

justified. By such means, anything can be said publicly about any person, and about

any aspect of their life whether private or public, with relative impunity, and

anonymously – whereby reputations can be instantly and permanently damaged, and

where serious distress and damage may be caused to both the target, children and

adults alike, leading in extreme cases to suicide. So serious is the mischief, so easily

achieved, that in my view the Oireachtas should be asked to consider the creation of

an appropriate offence under criminal law, with a penalty upon conviction sufficient

to act as a real deterrent to the perpetrator. The civil remedies currently available

have been recently demonstrated to be an inadequate means of prevention and

redress.”

702

7.2.2 Complexity of online publication

A defamatory statement published online may now involve one or more of many types of

actors – for example, an internet platform provider, a search engine provider, website

operator, news portal, blogger, social media poster, a sharer or re-sharer of social media

content, or a poster in a ‘below the line’ comment sections.

The law is still working out how best to attribute liability for a defamatory statement that

can involve such a range of different actors. International textbooks shared and debated, for

instance, a Canadian judgment on whether a person who shares a link to a website should,

or should not, be considered as having re-published a defamatory statement contained in the

linked site (the Canadian Supreme Court held in this case that sharing a hyperlink did not

constitute a defamatory re-publication)

703

However, it has also been argued that efforts to specify details and parameters of ‘secondary

responsibility’ for internet publication run a risk of fast becoming obsolete and

unpredictable, given the rapid development of digital technology.

704

7.2.3 Liability of online service providers for user-generated content

One question which received relatively early attention is the question of how far providers

of online services (such as search engines, social media platforms, and operators or hosts of

websites) may be liable for content which is created and posted online by users through the

provider’s platform. Given the enormous volumes of material that are posted every few

minutes on huge platforms such as Facebook, or apps such as Twitter, major providers

contend that they cannot be aware of the content, at least unless specifically notified.

The EU e-Commerce Directive

705

already, in 2000, provided an exemption from liability for

such providers, subject to certain conditions (see section 7.3.2). However, the liability of

digital service providers, and their obligations to users, are now also addressed by the

702

Tansey v. Gill [2012] IEHC 42, para 25. In this case, anonymous allegations of criminality and unprofessional

conduct had been posted anonymously about a solicitor on a website entitled ‘rate-my-solicitor.ie’. After

considering the evidence offered by the defendants, the court was satisfied that the material was seriously

defamatory. See Maher, The Law of Defamation, 2

edition, paras 11.78-11.82.

703

Crookes v. Newton, Supreme Court of Canada, [2011] SCC 47

704

Prof. Neville Cox, Defamation Law and the 2009 Defamation Act, paper to the Defamation Symposium 2019,

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf

705

Directive 2000/13/EC, transposed in Ireland by the e-Commerce Regulations, S.I. No. 68 of 2003.

226

proposal for a new EU Regulation (the ‘Digital Services Act’), discussed at section 7.3.3,

which aims to modernise and extend EU regulation of digital communication..

Conversely, Professor Cox argues, in his paper to the Symposium on Reform of Defamation

Law in 2019 that the ‘standout issue’ regarding online defamation and Irish law is that the

e-Commerce Directive and Regulations do not protect “multiple other kinds of entity that

are involved in the publication process online, but have no realistic control over material

posted by others.”.

706

For instance, a private individual, on whose Facebook page another

person posts a defamatory comment. Other possible examples would include where an

individual posts defamatory material on a community group page, or forum.

The defence of ‘innocent publication’, under section 27 of the 2009 Act, has been seen as a

potential shield both for mainstream providers of online services, and for those responsible

for community group pages of this sort. However,

Professor Cox argues that “the application

of this defence to the issue of online publication poses huge interpretative difficulties” and

considers the pros and cons of amending the 2009 Act, instead, along the lines of the general

defence in England and Wales for ‘operators of websites’ contained at section 5 of their

Defamation Act 2013

707

7.2.4 Anonymous online statements

Online communication has made it easy for individuals to publish material online, either

anonymously, or using a user-name which does not reveal their identity to the public.

The person’s identity, however, will normally be accessible to the website operator or other

digital intermediary. As a result, defamation plaintiffs may be obliged to apply to a reluctant

third party - the service provider- to obtain the poster’s identity.

The courts have developed a remedy to meet these situations (known as a ‘Norwich

Pharmacal’ order, after a copyright case where it was first used) but some problems and

issues remain: they are discussed in part 7.4 of this chapter.

7.2.5 Multiple jurisdictions

The potential of online communication for rapid global reach also raises complex procedural

issues, if defamatory material is generated or accessed in more than one country.

This was already possible for traditional hard copy publication, for instance of newspapers,

but such cases were rare, and generally involved a very limited potential readership. The

nature of online publication, and the increasing globalisation of family, social and business

networks, have transformed that picture. For example, defamatory online comments might

be posted and published in one country, by a user who is resident in another, on a website or

platform that is hosted in a third, before being accessed and extensively re-published in a

fourth.

708

In which country’s courts is the defamed person to apply for orders restraining

further publication, or asking for identification of the anonymous author?

706

Cox, 2019, Defamation Law and the 2009 Defamation Act,

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf

707

Cox, Defamation Law and the 2009 Defamation Act, above.

708

Maher J, The Law of Defamation, 2

edition, p. 83-90.

227

There are EU rules governing the choice of jurisdiction in civil proceedings (including

defamation) with a cross-border dimension, as between EU Member States. The position

may be more complicated if some of the countries are not in the EU. In either case, a plaintiff

or defendant may have to take proceedings in more than one jurisdiction, potentially at

significant cost. (See chapter 4.5 of this Report for a detailed discussion on this aspect.)

It is worth noting that some major online intermediaries with an Irish base may stipulate a

contractual term, for any service users not based in North America, that any litigation about

the service will be taken in the Irish courts. This was the case, for instance, in Muwema v

Facebook, where both the plaintiff and the defendant were based in Uganda, but the

defamation proceedings were decided by the Irish courts because the statements in question

were published via a Facebook account.

709

7.2.6 EU law dimension

Defamation is not, in general, a matter for EU law, if it arises from traditional publication

via a book or a newspaper article.

However, aspects of online defamation do have a specific EU law dimension: see sections

7.3.2 and 7.3.3 of this chapter. This is due to the e-Commerce Directive, which exempts

certain providers of online services from liability for user-generated content (subject to

conditions): see also the proposal for a new EU ‘Digital Services Act’.

7.3 The legal framework

7.3.1 The Defamation Act 2009

Application to online publication

The Defamation Act 2009 does expressly include defamatory statements that are published

via electronic communications, including internet-based publication, at section 2.

However, the extent of online communication has expanded very considerably since 2009,

and the Act did not address the issue of online defamation in any great detail.

Section 2 of the Act defines a (defamatory) ‘statement’ as including “a statement published

on the internet”, and “an electronic communication”.

Section 2 also defines an “electronic communication”, as including “a communication of

information in the form of data, text, images or sound (or any combination of these) by means

of guided or unguided electromagnetic energy, or both”.

A “periodical” is defined as “any newspaper, magazine, journal or other publication that is

printed, published or issued, or that circulates, in the State at regular or substantially

regular intervals and includes any version thereof published on the internet or by other

electronic means”.

709

[2016] IEHC 519.

228

"Publication” means “the publication, by any means, of a defamatory statement … to one or

more than one person”, other than the person concerned by the statement

710

. The general

position in Irish defamation law is that publication takes place at the point in time, and in the

place, where the statement is received, and read, by that other person

711

. Thus, posting a

defamatory statement online does not in itself constitute publication: “a defamatory

statement will not become actionable until the moment it is seen, heard or otherwise brought

to the attention of a person other than the plaintiff.”

712

Relevant defences

The ‘innocent publication’ defence under section 27 of the Defamation Act is often argued

to have particular relevance for online service providers, who may contend that given the

huge volume of material posted on their platforms, they cannot be aware of the nature of all

of its content – at least till notified in a specific instance. (See also, however, part 7.2 of this

chapter on questions raised regarding the effectiveness of this defence in practice in the

digital context

713

The section

714

provides for the defence of innocent publication, where the defendant proves

that it:

- was not the author, editor or publisher of the statement complained of,

- took reasonable care in relation to its publication, and

- did not know, and had no reason to believe, that what it did caused or contributed

to the publication of a statement that would give rise to a cause of action in

defamation.

The terms “author”, “editor” or “publisher” are not defined, but section 27(2) describes a

series of functions and activities that are excluded from their scope.

715

710

Section 6(2) Defamation Act 2009. However, there is no publication if a defamatory statement is published to

the person to whom it relates and to another person, where (a) it was not intended that the statement would be

published to the other person, and (b) it was not reasonably foreseeable that publication of the statement to the

first person would result in it being published to the other person (section 6(4)).

711

Maher, The Law of Defamation, 2

edition, para 3.29.

712

Maher, The Law of Defamation, 2

edition, para 3.04.

713

Cox, Defamation Law and the 2009 Defamation Act, paper to the Defamation Symposium 2019,

http://www.justice.ie/en/JELR/NCox_Paper_Defamation.pdf/Files/NCox_Paper_Defamation.pdf

714

Section 27(1) provides:

‘It shall be a defence (to be known as the ‘defence of innocent publication’) to a defamation action for the

defendant to prove that –

(d) he or she took reasonable care in relation to its publication, and he or she did not know, and had no

reason to believe, that what he or she did caused or contributed to the publication of a statement that

would give rise to a cause of action in defamation.’

715

Section 27(2) provides:

‘A person shall not, for the purposes of this section, be considered to be an author, editor or publisher of a

statement if -

(a) in relation to printed material containing the statement, he or she was responsible for the printing,

production, distribution or selling only of the printed material,

(b) in relation to a film or sound recording containing the statement, he or she was responsible for the

processing, copying, distribution, exhibition or selling only of the film or sound recording,

responsible for the processing, copying, distribution or selling only of the electronic medium or was

229

Section 27(3) sets out factors to which the court must have regard, when determining

whether a person took reasonable care, or had reason to believe that what he/she did caused

or contributed to the publication of a defamatory statement.

716

Date of publication for purposes of limitation of actions

Section 38 of the Act defines the date of publication, in an internet-based communication,

in the context of the limitation of actions:

“For the purposes of bringing a defamation action within the meaning of the

Defamation Act 2009, the date of accrual of the cause of action shall be the date upon

which the defamatory statement is first published and, where the statement is published

through the medium of the internet, the date on which it is first capable of being viewed

or listened to through that medium.”

717

7.3.2 The e-Commerce Directive 2000

Overview

The e-Commerce Directive

718

, adopted in 2000, seeks to facilitate free movement of

‘information society services’ between EU Member States. It does so by establishing important

common minimum rules, which in effect regulate the liability and responsibilities in Ireland

and in other EU Member States of online service providers (including ‘Big Tech’ providers

such as Google or Facebook) for the content of defamatory material posted by users of their

online services.

The Directive was implemented in Ireland by the European Communities (Directive

2000/31/EC) Regulations 2003.

719

The relevant provisions of the Directive are in Part 4, comprising Articles 12 to 15, which deal

with the liability of ‘intermediary service providers’ for any illegal content that they transmit

and/or store for users of their services.

(Under the proposed Digital Services Act

720

, Articles 12 to 15 of the Directive are largely

reproduced, respectively, as Articles 3, 4, 5 and 7 of the Digital Services Act. Under Article 71

responsible for the operation or provision only of any equipment, system or service or means of which

the statement would be capable of being retrieved, copied, distributed or made available.’

716

Section 27(3) provides:

‘The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe

that what he or she did caused or contributed to the publication of a defamatory statement, have regard to –

(d) the extent of the person’s responsibility for the content of the statement or the decision to publish it,

(e) the nature or circumstances of the publication, and

(f) the previous conduct or character of the person.’

717

“A defamation action within the meaning of the Defamation Act 2009 shall not be brought after the expiration

of one year, or such longer period as the court may direct not exceeding 2 years, from the date on which the cause

of action accrued.”

718

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects

of information society services, in particular electronic commerce, in the Internal Market:

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32000L0031&from=EN

719

S.I. No. 68/2003 - European Communities (Directive 2000/31/EC) Regulations 2003:

http://www.irishstatutebook.ie/eli/2003/si/68/made/en/print

720

References to the text of the Digital Services Act proposal are provisional: the text is still subject to negotiation.

230

of the Act, Articles 12 to 15 are then deleted, and references to those Articles are to be construed

as references respectively to Articles 3, 4, 5 and 7 of the Digital Services Act.)

In relation to online defamation, the e-Commerce Directive focused on limiting the possible

liability of ‘information society services’ providers for the content of any user-generated

material that was transmitted or accessed using their services, subject to certain conditions.

At the same time, the Directive prohibited Member States from imposing on the service

providers any ‘general obligation to monitor’ the content of user-generated material

transmitted using their services.

In summary, Part 4 of the Directive:

 prohibits Member States from imposing any general obligation on an online services

provider to monitor the information that they transmit and store (Article 15.1);

 sets out specific rules that exempt online service providers from legal liability for the

content held on their websites, if the provider has no actual knowledge of the nature of

that content or of any illegality (Articles 12-14);

 specifies three different levels of exemption, at Articles 12-14, depending on whether

the service provider is hosting, caching, or is a “mere conduit” for, the content

concerned

721

;

 specifies graduated conditions at Articles 12-14 for each of these three levels of

exemption – for example, the exemption for a provider of hosting services applies only

if the provider complies with a “notice and takedown” regime: if a hosting service

provider is informed of illegal content on its website, it must “act expeditiously to

remove or to disable access to the information”; and

 specifies that the Directive does not affect the possibility of a court in a Member State

requiring a service provider to terminate or to prevent an infringement, in accordance

with the national legal system

722

These provisions also establish the context for online service providers in Ireland complying

with orders of national courts, such as take-down orders or “Norwich Pharmacal” orders, as

discussed later in this chapter.

Another key element of the e-Commerce Directive is the ‘country of origin’ clause, under

which a provider of online services is subject to the law of the Member State in which it is

established, rather than of the Member State in which the service is accessed.

Article 3.1 of the Directive provides that:

721

‘Mere conduit’ services focus on passive transmission of large volumes of data (e.g. a traditional internet access

provider). ‘Caching’ services store large volumes of data temporarily for onward transmission: e.g. a proxy server.

‘Hosting’ services provide a platform on which users can upload, store, and transact with their own data (e.g. a

web-hosting company.)

722

At Articles 12.3, 13.2 and 14.3.

231

“Each Member State shall ensure that the information society services provided by

a service provider established on its territory comply with the national provisions

applicable in the Member State in question which fall within the coordinated field

[of the Internal Market].”

723

Online services providers and publication

Articles 12 to 15 of the e-Commerce Directive provide for what is often described as a “safe

haven” regime, under which three types of service providers are exempt from liability for

the content of the material they hold, under certain conditions.

The approach taken was not to deny that the service provider’s work and functions involved

publication, but to provide them with a specific range of defences, dependant on the level of

responsibility for publication/awareness of the content of the material that a relevant service

provider could reasonably be said to have.

724

The exemption from liability is conditional on it being, in fact, the case that the service

provider is merely an ‘intermediary’, with an essentially ‘passive’ role as regards the content

of the material. However, the level of passivity required differs according to the three

categories of service providers.

The three categories of providers

The three types of providers, the relevant Article and the conditions attached, are as

follows

725

"Mere conduit" service providers (Article 12)

These providers deliver either network access services, or network transmission services.

The typical ‘mere conduit’ service are traditional internet access providers, and backbone

operators.

Both types of service providers transmit enormous amounts of data at the request of their

subscribers (whom they may not even know), and are therefore envisaged as having a strictly

passive role. This liability exemption applies when the service provider is only passively

involved in the transmission of data. If the service provider were involved in decisions on

selecting, transmitting or modifying the data, or selecting the recipients, the exemption

would not apply.

"Caching" providers” (Article 13)

These providers temporarily and automatically store data, in order to make the onward

transmission of this information more efficient. The typical service envisaged by Article 13

is a so-called "proxy server", which stores local copies of websites accessed by a customer.

When the same website is subsequently accessed again, the proxy server can deliver the

723

See also Recital 22 of the Directive, which explains that ‘Information society services should be supervised

at the source of the activity …’ .

724

Cox N. and McCullough, E., Defamation Law and Practice, Clarus Press, 2014, p. 372-3.

725

See: EU study on the Legal analysis of a Single Market for the Information Society. New rules for a new

age? Liability of online intermediaries:

https://ec.europa.eu/information_society/newsroom/cf/document.cfm?doc_id=835

232

locally stored copy of the website, which avoids needing to contact the original web server

again: this reduces network traffic, and speeds up the delivery process.

Caching providers can be more actively involved with their users. Article 13 permits the

caching provider to select the data or the recipient of the service, as it may want to restrict

the access to its services, or to filter the information made available to its users.

However, the Article does not permit the provider to modify the local copy of the data that

it stores. As information is locally stored by the caching provider during a certain period of

time — which, depending on the configuration of the servers and websites involved, can be

up to several months — various conditions need to be met by the caching provider in order

to benefit from the liability exemption. The most important conditions are that the local copy

must be identical to the original information, and that the service provider must comply with

the access conditions associated with the locally stored information. Furthermore, the service

provider must update the copy in the manner specified by the original website.

Article 13(1)(e) requires a caching provider to take down illegal content - but only where it

has actual knowledge of the illegality, and only where the original data has already been

taken down or its takedown has been ordered by a court. The provider shall:

“act expeditiously to remove or to disable access to the information it has stored

upon obtaining actual knowledge of the fact that the information at the initial source

of the transmission has been removed from the network, or access to it has been

disabled, or that a court or an administrative authority has ordered such removal or

disablement.”

“Hosting providers” (Article 14)

726

These providers store data provided by their users. The data being stored is specifically

selected and uploaded by a user of the service, and is intended to be stored ("hosted") for an

unlimited amount of time. The typical service envisaged by Article 14 is a webhosting

company, which provides web space to its customers, on which they can upload content to

be published on a website.

The required level of passivity is the lowest for hosting providers. Under Article 14, they are

permitted to select and modify the data they store, as well as to select the recipient of the

data. However, the liability exemption would not apply if the service user was acting under

the authority or control of the hosting provider.

Hosting providers can only benefit from the liability exemption when they are "not aware of

facts or circumstances from which the illegal activity or information is apparent" (in relation

to civil claims for damages) or they "do not have actual knowledge of illegal activity or

information" (in relation to other claims).

727

A further condition that is specific to Article 14 and to hosting providers is that once a

hosting provider is on notice that specific content is illegal, it is obliged to “act expeditiously

to remove or to disable access to” the content concerned.

726

Cox and McCullough, 2014, p. 371-379; Gatley 2017, p. 243-246; Maher, 2018, p. 320-324

727

See for example Google v Louis Vuitton & others, Joined Cases C-236/08 to C-238/08; L’Oréal v eBay,

Case C‑324/09.

233

Article 14 is seen as the basis for the development of ‘notice and take down’ procedures in

relation to illegal and harmful information. The Directive does not itself set out any

procedural obligations for ‘notice and takedown’, providing instead at Article 14.3 that:

“This Article shall not affect … the possibility for Member States of establishing

procedures governing the removal or disabling of access to information.”

No general obligation to monitor

Article 15.1 of the e-Commerce Directive provides that:

“Member States shall not impose a general obligation on providers, when providing

the services covered by Articles 12, 13 and 14, to monitor the information which they

transmit or store, nor a general obligation actively to seek facts or circumstances

indicting illegal activity.”

Article 15.2 provides an exception to that general principle: Member States may ‘establish

obligations’ requiring providers to inform the relevant public authorities promptly of possible

illegal activities or information, or to provide the authorities on request with information on

the identity of service recipients.

The prohibition on general monitoring has been upheld by the EU Court of Justice on several

occasions.

728

An example is Scarlet Extended,

729

where Scarlet was an internet service provider which

provided its customers with access to the internet without offering other services such as

downloading or file sharing. The Belgian courts upheld SABAM’s complaint that Scarlet’s

service users were downloading music in SABAM’s catalogue from the internet, without

permission and without paying royalties, by means of peer-to-peer networks. SABAM sought

an order compelling Scarlet to install a filtering system to prevent this recurring.

The Belgian court sought guidance from the Court of Justice, which held that:

“ … it is common ground that implementation of that filtering system would require:

– first, that the ISP identify, within all of the electronic communications of all its

customers, the files relating to peer-to-peer traffic;

– secondly, that it identify, within that traffic, the files containing works in respect

of which holders of intellectual property rights claim to hold rights;

– thirdly, that it determine which of those files are being shared unlawfully; and

– fourthly, that it block file sharing that it considers to be unlawful.

Preventive monitoring of this kind would thus require active observation of all electronic

communications conducted on the network of the ISP concerned and, consequently,

would encompass all information to be transmitted and all customers using that network.

In the light of the foregoing, it must be held that the injunction imposed on the ISP

concerned requiring it to install the contested filtering system would oblige it to actively

728

SABAM v Netlog NV (Case C‑360/10); Scarlet Extended SA v SABAM (C‑70/10).

729

Scarlet Extended SA v SABAM (C‑70/10).

234

monitor all the data relating to each of its customers in order to prevent any future

infringement of intellectual property rights. It follows that that injunction would require

the ISP to carry out general monitoring, something which is prohibited by Article 15(1)

of Directive 2000/31.”

730

Court intervention in specific cases, however, remains permitted

However, Article 15.1’s prohibition on Member States imposing a general monitoring

obligation on hosting providers in relation to illegal content does not prevent national courts

from imposing such obligations on them in a specific case.

731

The Court referred, in this context, to Recital 47 of the Directive, which explains that:

“Member States are prevented from imposing a monitoring obligation on service

providers only with respect to obligations of a general nature; this does not concern

monitoring obligations in a specific case and, in particular, does not affect orders by

national authorities in accordance with national legislation.”

In October 2019, the Court of Justice handed down an important judgment in Eva

Glawischnig-Piesczek v. Facebook Ireland Limited

732

. This was seen as a landmark decision

on the limits of Article 15’s prohibition of general monitoring obligations

733

, and it referred

specifically to the publication of defamatory material.

In this case, a Facebook user had shared on their personal Facebook page an article published

in an Austrian online newspaper, entitled ‘Greens: Minimum income for refugees should

stay’, which included publication of a photo of Ms Glawischnig-Piesczek, the Austrian

federal spokesperson for the Green Party. The user added a comment which the Austrian

courts held to be insulting and defamatory of Ms Glawischnig-Piesczek. The post could be

accessed by any Facebook user.

734

Ms Glawischnig-Piesczek applied to the Vienna Commercial Court, which issued an interim

order directing Facebook to cease immediately publishing or disseminating photographs

showing the applicant, if they were accompanied by text that contained the defamatory

comment (either verbatim, or in equivalent wording.) In response, Facebook disabled access

to the original post, but appealed other aspects of the ruling.

The appeal court in Vienna upheld the order extending to other identical text, but held that

it should only apply to equivalently worded text if that text was notified to Facebook (by Ms

Glawischnig-Piesczek, a third party, or otherwise). Both parties appealed against the appeal

ruling. The Austrian Supreme Court referred the question to the Court of Justice, stating that

730

Scarlet Extended SA v SABAM (C‑70/10), at paras 38-40.

731

Eva Glawischnig-Piesczek v Facebook Ireland Ltd (C-18/18), at para 34.

732

Glawischnig-Piesczek v Facebook Ireland (C-18/18)

733

Court of Justice of the European Union PRESS RELEASE No 128/19:

https://curia.europa.eu/jcms/upload/docs/app.lication/pdf/2019-10/cp190128en.pdf ;

‘Facebook can be forced to remove content worldwide after landmark EU court ruling’:

https://www.rte.ie/news/business/2019/1003/1080941-facebook-can-be-forced-to-remove-content-worldwide/ ;

‘Facebook to be subject to tougher controls after EU court ruling’:

https://www.theguardian.com/technology/2019/oct/03/facebook-faces-tougher-controls-after-eu-ruling ;

734

At para 12 of the Court’s judgment.

235

according to its own case-law, such a takedown order was proportionate, if the host provider

was aware that the applicant’s interests had already been harmed at least by the original post,

and the risk of other infringements had thus been demonstrated.

The Court of Justice held that the Directive, and in particular Article 15(1), does not preclude

a court of a Member State ordering a host provider to remove (or block access to) content

that it stores which is:

 identical to content previously declared unlawful, or

 equivalent to content previously declared unlawful, provided that the provider is only

being required to monitor and search for information that:

o “convey[s] a message the content of which remains essentially unchanged”

compared to the unlawful content,

o contains the elements specified in the court’s injunction, and

o does not differ in wording from the unlawful content to an extent that requires

the provider to carry out an independent assessment of the content.

Nor, the Court added, did the Directive, and in particular Article 15(1), preclude a Member

State court ordering the hosting provider to remove, or block access to, information covered

by its injunction on a world-wide basis - provided that this is done within the framework of

relevant international law.

The Court did refer particularly to the fact that the hosting service was a social media

company, as a relevant factor:

“Such a specific case [as is mentioned in Recital 47] may, in particular, be found ….

in a particular piece of information stored by the host provider concerned at the

request of certain user of its social network …. [which was determined to be illegal

by the national court]. Given that a social network facilitates the swift flow of

information stored by the host provider between its different users, there is a genuine

risk that information which was held to be illegal is subsequently reproduced and

shared by another user of the network.”

735

This judgment – and particularly, its conclusion that the Directive permits a Member State

court to order hosting platforms to filter out specified unlawful content on a worldwide basis

in an individual case - was seen as a landmark decision on the limits of Article 15’s

prohibition of general monitoring obligations

736

737

. However, it has also been pointed out

735

Glawischnig-Piesczek v Facebook Ireland (C-18/18), paras 35-36.

736

Court of Justice of the European Union PRESS RELEASE No 128/19:

https://curia.europa.eu/jcms/upload/docs/app.lication/pdf/2019-10/cp190128en.pdf ;

‘Facebook can be forced to remove content worldwide after landmark EU court ruling’:

https://www.rte.ie/news/business/2019/1003/1080941-facebook-can-be-forced-to-remove-content-worldwide/ ;

‘Facebook to be subject to tougher controls after EU court ruling’:

https://www.theguardian.com/technology/2019/oct/03/facebook-faces-tougher-controls-after-eu-ruling ;

737

‘Monitoring online content: the impact of Eva Glawischnig-Piesczek v Facebook Ireland Limited’,

236

that the ruling does not explore in any detail which kinds of injunctions or filtering

technologies may be permissible, nor does it specify considerations for fundamental rights

when courts are asked to order platforms to monitor users. It was also suggested that the

Court’s reservation where the equivalent wording is sufficiently different to require an

‘independent assessment’ may make it difficult for courts to devise injunctions that both

follow the CJEU’s guidance under the e-Commerce Directive, and meet the requirements of

fundamental rights.

738

Assessment

Over twenty years on from its adoption, there has been a clear sense that despite the

important principles which it established, the e-Commerce Directive has become somewhat

outdated in its terminology, and risks lagging behind a digital economy that has continued

to transform and reinvent itself with remarkable speed.

A report on the EU liability regime for online intermediaries, prepared for the European

Parliament in 2020, noted that:

“… numerous studies have shown that the way the E-commerce Directive has been

implemented across the EU varies greatly and that national jurisprudence on online

liability today remains very fragmented”.

739

The report concluded that the e-Commerce Directive is limited in several respects:

 It remains unclear to what extent the new type of online services, such as social

media companies that have appeared since the adoption of the e-Commerce

Directive, fall within the definition of 'information society services' providers that

can benefit from the liability exemption.

 The 'safe harbour' conditions and 'notice-and-take down' obligations are unclear

essentially because the underlying notions which are used to trigger the liability

exemption, such as the distinction between 'passive' role and 'active' and the

meaning of 'illegal activities', lack a proper definition. There are also considerable

differences both with regard to the definition and the functioning of notice-and-

take down, throughout the EU.

 It is becoming difficult to differentiate between prohibited 'general' content

monitoring and acceptable 'specific' content monitoring, while automatic filtering

mechanisms are increasingly used to detect illegal content.

https://www.reedsmith.com/en/perspectives/2019/11/monitoring-online-content-the-impact-of-eva-glawischnig-

piesczek-v-facebook ; ‘Facebook Responsible for Worldwide Removal of Defamatory Comments’,

https://www.mccannfitzgerald.com/knowledge/disputes/facebook-responsible-for-worldwide-removal-of-

defamatory-comments

738

Keller, Daphne (2020), ‘Facebook Filters, Fundamental Rights, and the CJEU’s Glawischnig-Piesczek

Ruling’, in GRUR International, Volume 69, Issue 6, June 2020, 616–623: https://doi.org/10.1093/grurint/ikaa047

739

‘Reform of the EU liability regime for online intermediaries’, European Parliamentary Research Service,

May 2020, p. 1 Executive summary.

https://www.europarl.europa.eu/RegData/etudes/IDAN/2020/649404/EPRS_IDA(2020)649404_EN.pdf?fbclid=

IwAR3LDz1RRGtSeB88ZORuwW20HuB9rV9tp97nzxbEfuhVqeCpLN-yXhqqy1c

237

Against this overall background, the European Commission signalled its intention to revise

the liability and enforcement regimes for online intermediaries, through its proposal for a

new EU Regulation (the ‘Digital Services Act’).

7.3.3 Proposed EU Digital Services Act

Overview

On 15 December 2020, the European Commission published two important new legislative

proposals: the proposed “Digital Services Act”

740

and the proposed “Digital Markets Act”

741

describing the package as:

“an ambitious reform of the digital space, a comprehensive set of new rules for all

digital services, including social media, online market places, and other online

platforms that operate in the European Union.”

The complementary proposals aim to establish a clearer, much more modern and more

comprehensive EU regulatory framework, applying the same framework of rules to a wider

range of digital service providers.

The Commission added that:

“Under the Digital Services Act, binding EU-wide obligations will apply to all digital

services that connect consumers to goods, services, or content, including new

procedures for faster removal of illegal content as well as comprehensive protection

for users' fundamental rights online.

The new framework will rebalance the rights and responsibilities of users, intermediary

platforms, and public authorities and is based on European values - including the

respect of human rights, freedom, democracy, equality and the rule of law.”

742

The legislative proposal for the Digital Services Act first needs to be considered by the

European Council (the representatives of the Member States) and the European Parliament,

before coming into effect. Under the EU legislative process, the proposal may be amended by

each of these institutions, and the final text must be approved by both.

743

The Council reached an agreement of all Member States (a ‘common position’) on an amended

text of the Digital Services Act, and published its amended text on 25 November 2021

744

and

the European Parliament published its proposed amendments on 20 January 2022. Trilogue

740

Text of the Digital Services Act proposal at: https://eur-lex.europa.eu/legal-

content/en/TXT/?uri=COM:2020:825:FIN

741

Text of the Digital Markets Act proposal at: https://eur-lex.europa.eu/legal-

content/en/TXT/?uri=COM%3A2020%3A842%3AFIN .

The DMA proposal seeks to strengthen the competition law framework for digital services provision: it will apply

only to major players (so-called ‘gatekeepers’. It sets out harmonised rules to define and prohibit anti-competitive

and unfair practices by gatekeepers, and provides an enforcement mechanism based on market investigations.

742

https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2347

743

Accordingly, references below to the text of the Digital Services Act proposal are provisional: the text is still

subject to negotiation.

744

https://www.consilium.europa.eu/en/press/press-releases/2021/11/25/what-is-illegal-offline-should-be-

illegal-online-council-agrees-on-position-on-the-digital-services-act/

238

negotiations between the Commission, European Council and European Parliament are

currently ongoing. The DSA proposal provides that it will take effect in Member States 18

months after adoption and publication.

Despite their names, the proposals are for EU Regulations (not for ‘Acts’ as the term is

understood in national legislation). If adopted at EU level, the final text will have binding legal

force in all EU Member States after the agreed transition period. (As amended by the Council,

the DSA proposal provides at Article 74 that it will take effect in Member States 18 months

after adoption and publication.)

Relevant provisions of e-Commerce Directive

Under the proposed Digital Services Act, the relevant provisions of the e-Commerce Directive

will effectively be subsumed into the Act.

Articles 12 to 15 of the Directive are largely reproduced, respectively, as Articles 3, 4, 5 and 7

of the Digital Services Act. Under Article 71 of the Act, Articles 12 to 15 are then deleted, and

references to those Articles are to be construed as references respectively to Articles 3, 4, 5 and

7 of the Digital Services Act.

Definition of illegal content

The Digital Services Act covers content which is unlawful under either national or EU law.

Article 2(g) defines “illegal content” as “any information, which, in itself or by its reference to

an activity, including the sale of products or provision of services is not in compliance with

Union law or the law of a Member State, irrespective of the precise subject matter or nature of

that law”.

‘Country of origin’ principle

Article 44a of the Common Position (formerly Article 40) provides that the Member State in

which the main establishment of the intermediary services provider is located shall have

exclusive powers for the supervision and enforcement by Digital Services Coordinators,

subject to certain exceptions in relation to very large online platforms or very large search

engines (reserved to the European Commission).

Modernised, clearer scope

The Digital Services Act proposal covers a wider range of digital services providers more

clearly than the e-Commerce Directive. It refers generally to ‘intermediary services providers’,

which includes the three main categories regulated by the e-Commerce Directive (‘mere

conduit’, caching and hosting services): the Council Common Position adds search engines

within that category (Article 2).

The Commission indicates that the Digital Services Act will apply binding obligations to all

digital services that connect consumers to goods, services, or content

745

. Intermediary services

providers will include:

 internet access providers,

 domain name registrars,

 cloud and webhosting services,

745

https://ec.europa.eu/info/strategy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-

safe-and-accountable-online-environment_en#new-obligations

239

 online platforms bringing together sellers and consumers (online marketplaces, app

stores, collaborative economy platforms), and

 social media platforms.

New obligations on service providers regarding unlawful content

The Digital Services Act proposal lays down additional obligations regarding unlawful content

for all intermediary service providers, and introduces higher levels of obligations for two new

categories of provider: large online platforms (LOPs) and very large online platforms

(VLOPs).

A VLOP is a platform providing services that reach 45 million, or more, EU service recipients

per month on average (Article 25). They are considered by the Commission proposal as posing

particular risks, due to their scale, in the dissemination of illegal content and societal harms.

These new graduated additional obligations for intermediary service providers (ISPs) under the

proposal include:

 Any ISP that receives an order of a national court directing it to act regarding unlawful

content must inform the court without undue delay of the action it has taken, and when, in

response. (Article 8)

 Any ISP that is a hosting service or an online platform must set up a user-friendly process

to facilitate any service user (or ‘trusted flagger’) notifying it of content the user believes

to be illegal: must process and decide such notifications in a timely manner; and must

inform the notifier promptly of their decision. (Article 14: Article 19))

 Any online platform (other than a SME) must also provide a free, user-friendly internal

complaints process, if the notifier is not satisfied with its decision; consider and decide the

complaint in a timely and objective manner; and inform the complainant promptly of their

decision. (Article 17)

 An online platform is also obliged, if the complainant is dissatisfied with the decision on

the complaint, to engage in good faith in an independent out of court resolution process.

That process is to be conducted by an impartial dispute settlement body with relevant

expertise, selected by the complainant from those certified for this purpose by the national

Digital Services Coordinator (see below). (Article 18)

 Any very large online platform is also obliged to:

o conduct annual assessments of how its systems and services risk disseminating

illegal content, with particular attention to potential negative impact on

fundamental rights (Article 26);

o put in place proportionate and effective mitigation measures to address those risks

(Article 27); and

o undergo an independent annual audit on compliance with their DSA obligations,

at its own expense (Article 28).

240

A significantly strengthened enforcement framework

The Digital Services Act proposal establishes a significantly strengthened enforcement

framework - both at national and at EU level - for intermediary services providers’ obligations

regarding unlawful content. It includes the following:

 Each Member State must designate a competent authority to act as its impartial and

independent national Digital Services Coordinator (DSC), and ensure that they are

adequately resourced (Articles 38, 39);

 The DSC is responsible at national level for effective supervision and enforcement of the

Digital Services Act within their Member State, with a range of specific legal powers under

the DSA (Articles 38, 41);

 The DSA provides for ‘effective, proportionate and dissuasive’ fines and financial

penalties for infringements of its requirements (Article 42);

 There is provision for extensive cross-border cooperation between DSCs in different

Member States (Article 45);

 A European Board for Digital Services, chaired by the Commission and composed of

national DSCs, will support national DSCs in the supervision of Very Large Online

Platforms (VLOPs) (Article 47);

 The European Commission will also have specific supervision and enforcement powers,

in relation to VLOPs (Article 50).

7.3.4 European Convention on Human Rights

Online defamation also has a specific ECHR case-law dimension, arising from Delfi v.

Estonia

746

in 2015. In that case, the European Court of Human Rights held that it was not

contrary to freedom of expression rights, under Article 10 of the Convention, for national

legislation to impose liability for defamation on the owners of a news portal for (largely

anonymous) defamatory comments uploaded by third parties.

The Court found that the newspaper had editorial control over the third-party comments’

section on its news site and should have prevented unlawful comments from being published,

even though Delfi had taken down the offensive comments immediately upon being notified

of them.

However, the Court seems to have nuanced this approach in subsequent judgments

747

, by

underlining that the offensive material amounted to hate speech.

746

[2015] EMLR 26 (App no. 64569/09).

https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-155105%22]}

747

insert reference

241

7.4 Application in practice – redress in the online defamation context

Given the specific features of online defamation as outlined above, the main court orders

sought by plaintiffs are likely to be:

o a ‘take-down order’, to restrain continuing or further publication; and

o if defamatory material has been posted anonymously, a ‘Norwich Pharmacal’ order.

7.4.1 Orders against continuing or future publication

The Defamation Act 2009 provides for the Court to make an order prohibiting further

publication of defamatory material. Section 33(1) provides that:

“The High Court, or, where defamation action has been brought, the court in which it

was brought, may, upon the application of the plaintiff, make an order prohibiting the

publication or further publication of the statement in respect of which the application

was made if, in its opinion –

(a) the statement is defamatory, and

(b) the defendant has no defence to the action that is reasonably likely to succeed.”

Subsection 33(3) specifies that the order may be interim, interlocutory or permanent.

However, the standard of proof required is considered quite strict: for example, the court

must consider that the statement is defamatory.

In Philpott v. Irish Examiner

748

, the High Court commented that:

“At common law, for injunctive relief to be granted, the court had to be satisfied that

the material complained of was unarguably defamatory. If anything, this Court would

note, the position appears even stronger under s.33. Under that provision, the court

must be of the opinion that an impugned statement “is defamatory”, not that it is

arguably or even unarguably so, but that, in the court’s opinion, it “is” so. This is a

high threshold for a plaintiff to satisfy”.

749

In 2016, in Muwema v. Facebook Ireland Ltd

750

the plaintiff (a well-known lawyer in

Uganda) sought an order under section 33 of the 2009 Act against Facebook in the Irish

courts, prohibiting further publication on the Facebook page of an anonymous user of articles

accusing the plaintiff of accepting bribes and seeking to frustrate an election.

In accordance with section 33 of the 2009 Act, an order can be made under that section only

where the defendant has no defence that is likely to succeed. The High Court held that the

defence of innocent publication under section 27 of the 2009 Act was likely to be available

to the defendant, and on that basis an order under section 33 of the Act could not be made.

748

Philpott v. Irish Examiner Ltd [2016] IEHC 62.

749

ibid para 27.

750

[2016] IEHC 519.

242

The Court also noted that Regulation 18 of the e-Commerce Regulations

751

appears to

envisage the granting of injunctive relief to safeguard legal rights but that this provision is,

in the case of an allegedly defamatory statement, subject to the limitations set out in section

33 of the 2009 Act.

Furthermore, the Court considered that the application should be refused as it would serve

no useful purpose because of the availability of material containing the same or similar

damaging allegations elsewhere on the internet. The Court observed that this decision means

that a person who has been defamed by an internet posting may be left without any remedy,

unless the author of the material is identified and amenable to the court.

752

In Gilroy & another v O'Leary

753

, Mr Justice Allen noted that different sections of the 2009

Act use different language – for example, section 28 (declaratory orders) provides that a

court must be “satisfied” that a statement is defamatory and section 30 (correction orders)

says that there must be a “finding” that a statement is defamatory, while section 33

(prohibition orders) says that the court must be of the “opinion” that a statement is

defamatory. He ultimately concluded that “there is no difference between an “opinion” and

a “finding” or the court being “satisfied””:

“It seems to me that the key to understanding what the test in section 33 is, is that

the same test is applicable to interim, interlocutory, and permanent orders. The

jurisdiction of the court to make prior restraint orders is as delicate post 2010 as it

previously was. I cannot conceive that the court would permanently interfere with

free speech or the free expression of opinion unless in a case where it was satisfied

and/or had made a finding that the statement was defamatory of the plaintiff and that

the defendant had no defence”.

754

The Law Reform Commission Report on ‘Harmful Communications and Digital Safety’,

discussed below at part 7.5 of this chapter, considered the effectiveness in practice of

available remedies for online defamation.

755

The Report stated that in online defamation cases, plaintiffs generally prioritise removing

the content over an award of damages - because the speed and ease with which content can

spread online increases the urgency to have it removed. As a result, the Report saw

injunctions as an important remedy in this context, yet also noted that ensuring their

effectiveness is an ongoing challenge.

756

751

European Communities (Directive 2000/31/EC) Regulations 2003 (S.I. No. 68 of 2003)

752

Maher, The Law of Defamation, 2

edition, p. 410-412.

753

Gilroy & another v O'Leary [2019] IEHC 52: https://www.courts.ie/acc/alfresco/cbcf6502-3a04-449b-b27f-

8244606b49bf/2019_IEHC_525_1.pdf/pdf ; Ben Gilroy fails in bid for injunction in defamation case:

https://www.irishtimes.com/news/crime-and-law/courts/high-court/ben-gilroy-fails-in-bid-for-injunction-in-

defamation-case-1.3779090

754

Gilroy & anor v O'Leary [2019] IEHC 52: https://www.courts.ie/acc/alfresco/cbcf6502-3a04-449b-b27f-

8244606b49bf/2019_IEHC_525_1.pdf/pdf

755

Law Reform Commission Report Harmful Communications And Digital Safety, (2016), (LRC 116 - 2016),

available at:

https://www.lawreform.ie/_fileupload/Reports/Full%20Colour%20Cover%20Report%20on%20Harmful%20Co

mmunications%20and%20Digital%20Safety.pdf

756

Harmful Communications And Digital Safety, (2016), 126

243

As an example of a more successful case, it cited Tansey v Gill,

757

where the plaintiff was

granted interlocutory injunctions restraining the publication of any further material, ordering

the removal of the defamatory material and ordering the termination of the website upon

which the material was posted. In Tansey, Peart J stated that damages are an empty remedy

in the context of online defamation - as the harm caused can be so serious and irreversible.

This is because the “inexpensive, easy and instantaneous” nature of internet publication

allows individuals to make very serious allegations with “relative impunity and

anonymously” “whereby reputations can be instantly and permanently damaged and where

serious distress and damage” can be caused. Peart J thus suggested that interlocutory

injunctions should be granted more readily in cases of online defamation.

758

However, the Report also noted that injunctions can also be ineffective in the context of

internet communications, citing McKeogh v John Doe

759

as in that case, despite an interim

order, the plaintiff’s name continued to be published by newspaper coverage of the case.

That case also illustrated the potentially large cost of civil proceedings, with the plaintiff

reportedly left with a significant legal bill.

760

In that case, the plaintiff was defamed by an anonymous YouTube user who wrongly

identified him as a person who ran from a taxi without paying. In addition, the plaintiff

received “vitriolic messages” on Facebook calling him, amongst other things, a “scumbag”

and a “thief.” This abuse continued even after the plaintiff obtained interim injunctions to

prohibit such messages. The falsity of this claim was not at issue, because the plaintiff could

show that at the time of the incident he was in Japan. The High Court accepted that the

incorrect identification amounted to defamation. However, the interim orders granted were

not effective, because newspapers continued to name the plaintiff in reports about the video;

and in some cases, did not report the plaintiff’s statements that he could not have been the

taxi fare evader.

The Report commented that a further difficulty with injunctions, in the context of online

communications, is that often the material ordered to be removed can spread beyond the

control of the individual ordered to remove the content, such as in Kelly v National

University of Ireland.

761

In that case, the plaintiff was ordered to remove content from the internet. At a subsequent

hearing, the defendant claimed that this order had been breached as the plaintiff had

redirected visitors to his site to other websites where the material could be found. The High

Court granted a second order requiring the removal from any website, whether controlled by

the plaintiff or otherwise, of references to the information specified in the previous order,

but the plaintiff said that he would be unable to remove anything from websites which he

did not control. The Court held that if the plaintiff had no knowledge, either actual,

constructive or implied, he would not breach the order. However, were he to pass on the

material to another who then published it, or were he to redirect visitors to his website to

other websites publishing the material, then he would be in breach.

757

[2012] IEHC 42.

758

Law Reform Commission Report Harmful Communications And Digital Safety, (2016), p. 127.

759

McKeogh v John Doe 1 (username Daithii4U) [2012] IEHC 95.

760

Harmful Communications And Digital Safety, (2016), 127

761

[2010] IEHC 48 Harmful Communications And Digital Safety, (2016), p. 127-128.

244

7.4.2 Notice and takedown requirements

Article 14 of the e-Commerce Directive provides that hosting service providers are exempted

from liability for hosting third-party illegal content if they do not have ‘actual knowledge’

of the activity or information and if, upon obtaining such knowledge, they ‘expeditiously’

remove the content, once a national court has directed them to do so. In order for ‘hosts’ and

‘intermediary service providers’ to be eligible for protection, the service provider must play

a neutral role, in the sense that its conduct is merely technical, automatic and passive and

that it has no knowledge or control over the data it stores.

Similarly under the ‘innocent publication’ defence to secondary publication, at section 27 of

the Act, an online services provider is required to act expeditiously once notified of

defamatory content, to remove it.

This has been described as a ‘notice and take-down regime’ for online service providers.

However, recent case law from both the European Court of Justice and the European Court

of Human Rights (ECHR) has created some uncertainty around the extent of the hosting

defence in the e-Commerce Directive for internet service providers.

Following the judgement of the European Court of Human Rights in Delfi AS v. Estonia

762

discussed above, the Court of Justice issued a somewhat similar judgement.

In Case C-291/13 Papasavvas

763

the limitations of civil liability specified in Articles 12 to

14 of the e-Commerce Directive were held not to apply to a newspaper publishing company

“which operates a website on which the online version of a newspaper is posted, that

company being, moreover, remunerated by income generated by commercial

advertisements posted on that website, since it has knowledge of the information

posted and exercises control over that information, whether or not access to that

website is free of charge.”

7.4.3 ‘Norwich Pharmacal’ orders

A ‘Norwich Pharmacal order’ is a particular type of disclosure order developed by the

courts. It essentially compels a defendant who has become mixed up in the alleged

wrongdoing of a third party, whether knowingly or innocently, to disclose information that

would assist the applicant in identifying this third party wrongdoer.

764

In defamation cases, a ‘Norwich Pharmacal’ order is typically issued by the court to an online

service provider who hosts a platform for user-generated content, directing the provider to

provide identifying details of an anonymous poster/account holder who has posted

defamatory material, so that he or she can be served with proceedings or court orders. In

general, the online services provider will be prepared to provide the identifying details, if so

required by a court.

762

Delfi AS v. Estonia - 64569/09: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-8960%22]}

763

Case C-291/13 Papasavvas: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62013CJ0291

764

David Culleton, The Law Relating to Norwich Pharmacal Orders, 2021 Irish Judicial Studies Journal vol.

5(1).

245

Norwich Pharmacal orders are not expressly provided for under court rules or legislation in

this jurisdiction, and can only be granted by the superior courts.

As the poster is rarely a party to the proceedings, and these orders could potentially breach

privacy rights and data protection concerns, the courts have indicated that orders will only be

granted “sparingly”: they tend to take a restrictive view of information which will be made

available, usually confining it to details relating to the identity of the wrongdoer.

765

The traditional test is that to obtain a Norwich Pharmacal order, the applicant must prove that

they have suffered a legal wrong. The Supreme Court (Doyle v The Commissioner An Garda

Síochána

766

) has stressed that this type of relief is not akin to an interlocutory motion for

discovery, which can rely on assertions or hearsay. In the absence of concrete evidence of a

legal wrong, Norwich Pharmacal relief will not be granted.

767

In some cases however a prima facie case has been sufficient and there are English precedents

for a more flexible approach – although these may instead follow a proportionality test (see

Culleton, below.)

In Muwema v. Facebook Ireland Ltd

768

the plaintiff (a well-known lawyer in Uganda) objected

to articles published on the Facebook page of an anonymous activist under the pseudonym

TVO. The articles accused Mr Muwema of accepting bribes and seeking to frustrate an

election. The applicant issued proceedings in Dublin against Facebook, seeking a section 33

order against further publication, and a Norwich Pharmacal order requiring Facebook to

disclose any details they had in relation to the identity and location of TVO. The Court was

satisfied that the articles were likely to be defamatory and made the Norwich Pharmacal order,

while refusing the section 33 order for reasons discussed above.

Unusually, based on new evidence provided by Facebook that TVO was in fact a political

activist whose identification to the Ugandan authorities was likely to put him at risk of

imprisonment and possible ill-treatment, the High Court then declined to proceed with the

Norwich Pharmacal order that TVO be identified to the applicant. Instead the Court

769

directed

Facebook to contact TVO and to notify him forthwith that unless the offending postings were

removed within 14 days, the plaintiff would be entitled to renew his application for Norwich

Pharmacal relief which would be granted.

This decision was appealed to the Court of Appeal

770

, which dismissed the appeal. The Court

held that it was a matter for the trial judge to be satisfied that the evidence established to the

necessary level of cogency, and on the balance of probabilities, that there was a real risk posed

to the life and/or bodily integrity of TVO if their identity was disclosed. There was no error

in law in the trial judge’s conclusion that he was so satisfied.

765

https://www.mccannfitzgerald.com/knowledge/disputes/a-rare-example-of-norwich-pharmacal-relief-in-

ireland

766

[1999] 1 IR 249

767

https://www.mhc.ie/latest/insights/norwich-pharmacal-relief-uncovering-the-anonymous-wrongdoer

768

[2016] IEHC 519.

769

[2017] IEHC 69.

770

[2018] IECA 104.

246

Even where possible, Norwich Pharmacal orders can be costly for a plaintiff, who is usually

expected to bear the costs of the service provider as well as their own, and the length of time

taken for them to be obtained and enforced reduces their overall effectiveness.

771

Suggested reforms

772

include a greater focus by the courts on seeking to contact the

anonymous poster before an order is made, and extending a Norwich Pharmacal jurisdiction

to the Circuit Court, where most defamation cases are heard, in order to reduce costs.

7.5 Harmful Communications and Online Safety – proposals

7.5.1 The Law Reform Commission Report (2016)

In 2016, the Law Reform Commission published a report ‘Harmful Communications and

Digital Safety’ on some online communications and behaviour that cause harm to others.

773

While the Report found that existing criminal law in Ireland already addressed some harmful

communications, it nevertheless highlighted certain other gaps which required reform.

The Report proposed that existing criminal law, together with the proposals intended to deal

with new forms of harmful communications, could be consolidated into a single piece of

legislation and included a draft ‘Harmful Communications and Digital Safety Bill’. The

Report recommended that this could be done under a proposed Office of the Digital Safety

Commissioner of Ireland, modelled on comparable offices in Australia and New Zealand.

The proposed Commissioner, while having a general oversight and monitoring role, could

also oversee and monitor an efficient and effective “take down” system enabling harmful

communications to be removed as quickly as possible, such as from social media sites. This

could include the publication of a statutory code of practice on take down procedures and

associated national standards, which would build on existing non-statutory take down

procedures and industry standards already developed by the online and digital sector.

The proposed statutory model envisaged that applications for take down of harmful

communications could initially be made to the relevant digital or online service provider,

with the Commissioner becoming involved by way of appeal, if the take down procedure did

not operate in accordance with the statutory standards.

774

During the Law Reform Commission’s consultations with stakeholders, it was suggested

that the absence of an adequate, speedy and standardised takedown procedure for online

communications is a significant problem.

775

The Report also noted that among difficulties

of obtaining takedown is the exemption of internet intermediaries under the e-Commerce

771

‘A Rare Example of Norwich Pharmacal Relief in Ireland’:

https://www.mccannfitzgerald.com/knowledge/disputes/a-rare-example-of-norwich-pharmacal-relief-in-ireland ;

‘Norwich Pharmacal Relief: Uncovering the Anonymous Wrongdoer’:

https://www.mhc.ie/latest/insights/norwich-pharmacal-relief-uncovering-the-anonymous-wrongdoer

772

Culleton, above

773

Law Reform Commission Report Harmful Communications And Digital Safety, (2016), (LRC 116 - 2016).

774

Harmful Communications and Digital Safety, (2016), 1-2.

775

Harmful Communications and Digital Safety, (2016), p. 128.

247

Directive - the requirements for notice and takedown under that Directive were seen as

unclear.

776

Some of the Report’s recommendations on ‘Takedown Procedure and Civil Law’ are of

interest in the context of online defamation.

777

These include:

 that an Office of a Digital Safety Commissioner should be established on a statutory

basis to promote digital and online safety and to oversee and regulate a system of “take

down” orders for harmful digital communications. [paragraph 3.82]

 that the Digital Safety Commissioner should have responsibility for overseeing and

regulating a wide group of digital service undertakings including an intermediary

service provider, an internet service provider, an internet intermediary, an online

intermediary, an online service provider, a search engine, a social media platform, a

social media site, or a telecommunications undertaking. [paragraph 3.83]

 that the general functions of the Digital Safety Commissioner should include ensuring

the oversight and regulation of a timely and efficient take down procedure for digital

service undertakings to remove harmful digital communications (the “take down

procedure”), and that the take down procedure is made available to all affected

individual persons by digital service undertakings free of charge; and that the Digital

Safety Commissioner should prepare and publish, in an easily accessible form, a Code

of Practice on Take Down Procedure for Harmful Communications. [paragraph 3.85]

 that the Digital Safety Commissioner should have jurisdiction to hear an appeal by an

individual who has sought to have specified communications concerning him or her

removed using the complaints scheme and take down procedure of a digital service

undertaking. [paragraph 3.90]

 where a digital service undertaking refuses to comply with a direction issued by the

Commissioner, the Commissioner should be empowered to apply to the Circuit Court

for an injunction requiring compliance with the direction. [paragraph 3.91]

 that the jurisdiction to grant Norwich Pharmacal orders be placed on a statutory basis

and that both the High Court and the Circuit Court should be empowered to make such

an Order. [paragraph 3.112]

 that a one-step procedure be adopted for such orders whereby only one application

would be required which would apply, in the online context, to the website and the

telecoms company. [paragraph 3.113]

 that the person alleged to have posted the harmful communications should be given the

opportunity of appearing and making representations to the court before the court

makes a Norwich Pharmacal order. [paragraph 3.114]

776

Harmful Communications and Digital Safety, (2016), p. 126. See section 7.3.2 of this chapter.

https://ec.europa.eu/digital-single-market/en/e-commerce-directive

777

Harmful Communications and Digital Safety, (2016), p. 157-159.

248

 that the provisions concerning the Office of the Digital Safety Commissioner and

concerning Norwich Pharmacal orders should apply to harmful communications,

where:

a) such harmful communications affect an Irish citizen or a person ordinarily resident

in the State, and the means of communication used in connection with such harmful

communications are within the control of an undertaking or company established

under the law of the State, and

b) such harmful communications affect an Irish citizen or a person ordinarily resident

in the State and where the means of communication used in connection with such

harmful communications are within the control to any extent of an undertaking

established under the law of another State and where a court established in the State

would have jurisdiction to give notice of service outside the State in respect of civil

proceedings to which harmful communications refer. [paragraph 3.121].

7.5.2 The Online Safety and Media Regulation Bill

In January 2020, the Government approved the General Scheme of the Online Safety and

Media Regulation Bill, for formal drafting. That Bill does not cover online defamation as such,

but it proposes to reform the regulatory structures for online media, including replacing the

Broadcasting Authority of Ireland with a new Media Commission and Online Safety

Commissioner.

A revised and expanded General Scheme was published in December 2020, and forwarded by

the Department of Media, Tourism, Arts, Culture, Sports, and the Gaeltacht to the Office of the

Attorney General, to continue detailed drafting of the Bill. The expanded General Scheme was

also referred for pre-legislative scrutiny to the Joint Oireachtas Committee on Tourism,

Culture, Arts, Sport and Media: their Report, with a number of detailed recommendations, was

published on 2 November 2021

778

. The Online Safety and Media Regulation Bill 2022 was

published on 25 January 2022.

The Bill

779

is intended to develop a regulatory framework in Ireland to tackle the spread of

harmful online content, as well as transposing into Irish law the requirements of the revised EU

Audiovisual Media Services Directive of 6 November 2018

780

Several elements of the Law Reform Commission’s Report have been included in the Bill,

particularly the creation, powers and remit of an Office of the Online Safety Commissioner.

However, where the Report envisaged a dual oversight role over criminal and civil aspects of

778

https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_tourism_culture_arts_sport_and_

media/reports/2021/2021-11-02_report-of-the-joint-committee-on-the-pre-legislative-scrutiny-of-the-general-

scheme-of-the-online-safety-and-media-regulation-bill_en.pdf

779

https://www.oireachtas.ie/en/bills/bill/2022/6/.

780

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018, amending

Directive 2010/13/EU concerning the provision of audiovisual media services.

249

online harms (including takedown orders and Norwich Pharmacal orders) the scope of the Bill

does not include civil law or defamation matters

781

The Bill provides for the appointment of an Online Safety Commissioner as part of a wider

Media Commission to oversee the new regulatory framework for online safety. The

Commissioner will govern this new framework through binding online safety codes and robust

compliance, enforcement and sanction powers. Online safety codes will deal with a wide range

of issues, including measures to be taken by online services to tackle the availability of harmful

online content. The Media Commission will replace the Broadcasting Authority of Ireland, and

will also take on the role of regulating the audiovisual sector.

7.6 Comparative Perspectives

In the United Kingdom, the Government has stated that, after the end of the Brexit transition

period, it will not provide for continued application of the e-Commerce Directive’s rules to

UK-based online service providers. The intention is to fully remove the Directive’s ‘country

of origin’ principle from legislation in the UK.

782

In England and Wales, section 5 of the Defamation Act 2013 makes specific provision

exempting ‘Operators of websites’, in certain circumstances, in respect of a defamatory

statement posted on the website.

783

It has been suggested that the section is of interest for Ireland, as it is capable of applying to

smaller website operators who would not be protected by the e-Commerce Directive

784

“5. Operators of websites

(1) This section applies where an action for defamation is brought against the

operator of a website in respect of a statement posted on the website.

(2) It is a defence for the operator to show that it was not the operator who posted

the statement on the website.

(3) The defence is defeated if the claimant shows that-

(a) it was not possible for the claimant to identify the person who posted the

statement,

(b) the claimant gave the operator a notice of complaint in relation to the

statement, and

with any provision contained in regulations.

781

Recommendation 7 of the Oireachtas pre-legislative scrutiny Report (above, at page 12) is that “the Bill be

altered to remove exclusions of defamatory content, as well as of violations of data protection, privacy, consumer

protection and copyright law.”

782

‘The E-Commerce Directive after the transition period’, https://www.gov.uk/guidance/ecommerce-directive-

what-online-service-providers-in-the-uk-should-do-to-get-ready-for-brexit ; ‘E-Commerce Directive – changes

at the end of the transition period’, https://www.fca.org.uk/brexit/e-commerce-directive-changes-end-transition-

period .

783

https://www.legislation.gov.uk/ukpga/2013/26/section/5/enacted

784

Neville Cox, paper to Symposium on Reform of Defamation Law, above; see also the two possible caveats to

such an approach, set out in his paper.

250

(4) For the purposes of subsection (3)(a), it is possible for a claimant to "identify" a

person only if the claimant has sufficient information to bring proceedings against

the person.

(5) Regulations may-

(a) make provision as to the action required to be taken by an operator of a

website in response to a notice of complaint (which may in particular include

action relating to the identity or contact details of the person who posted the

statement and action relating to its removal);

(b) make provision specifying a time limit for the taking of any such action;

after the expiry of a time limit as having been taken before the expiry;

(d) make any other provision for the purposes of this section.

(6) Subject to any provision made by virtue of subsection (7), a notice of complaint

is a notice which-

(a) specifies the complainant's name,

(b) sets out the statement concerned and explains why it is defamatory of the

complainant,

(d) contains such other information as may be specified in regulations.

(7) Regulations may make provision about the circumstances in which a notice which

is not a notice of complaint is to be treated as a notice of complaint for the purposes

of this section or any provision made under it.

(8) Regulations under this section-

(a) may make different provision for different circumstances;

(b) are to be made by statutory instrument.

(9) A statutory instrument containing regulations under this section may not be made

unless a draft of the instrument has been laid before, and approved by a resolution

of, each House of Parliament.

(10) In this section "regulations" means regulations made by the Secretary of State.

(11) The defence under this section is defeated if the claimant shows that the operator

of the website has acted with malice in relation to the posting of the statement

concerned.

(12) The defence under this section is not defeated by reason only of the fact that the

operator of the website moderates the statements posted on it by others.”

The Defamation (Operators of Websites) Regulations 2013

785

make further provision

regarding:

 specified information to be included in a notice of complaint,

785

See the Defamation (Operators of Websites) Regulations 2013:

https://www.legislation.gov.uk/ukdsi/2013/9780111104620

251

 the action which must be taken by a website operator in response to a notice of

complaint, and

 a time limit for taking any such action.

Section 13 of the Defamation Act 2013 provides for an:

“ Order to remove statement or cease distribution

(1) Where a court gives judgment for the claimant in an action for defamation the

court may order—

(a) the operator of a website on which the defamatory statement is posted to

remove the statement, or

(b) any person who was not the author, editor or publisher of the defamatory

statement to stop distributing, selling or exhibiting material containing the

statement.”

In Northern Ireland, the Scott Report on Reform of Defamation Law

786

discussed the many

issues involved in relation to defamation and online intermediaries, online publication, and

balancing reputation and online free speech

787

It noted that all of the respondents to its public consultation considered it desirable to provide

defences as set out in section 5 (‘Operators of websites’) and section 10 (‘Action against a

person who was not the author, editor’) of the Defamation Act 2013 in England and Wales.

Similarly, respondents who commented specifically on section 10 unanimously took the

view that this was an important reform. Both provisions were thought to be consistent with

the policy approach that “it is not for website hosts to police content on the internet”, and

that instead it is appropriate for responsibility to be laid upon the primary makers of

allegations.

788

Section 10 of the draft Bill attached to the Report detailed an “Action against a person who

was not the author, editor etc.”, whereby a court does not have jurisdiction to hear and

determine an action for defamation brought against a person who was not the author, editor

or publisher of the statement complained of; with the meanings of “author”, “editor” and

“publisher” defined.

It also specifies that a person shall not be considered the author, editor or publisher of a

statement if he is only involved—

 in printing, producing, distributing or selling printed material containing the statement;

 in processing, making copies of, distributing, exhibiting or selling a film or sound

recording containing the statement;

 in processing, making copies of, distributing or selling any electronic medium in or on

which the statement is recorded, or in operating or providing any equipment, system or

service by means of which the statement is retrieved, copied, distributed or made

available in electronic form;

786

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, 2016:

https://www.finance-ni.gov.uk/sites/default/files/publications/dfp/report-on-defamation-law_0.pdf

787

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, 2016, 2.50-

2.59.

788

Reform of Defamation Law in Northern Ireland, Recommendations to the Department of Finance, 2016, 2.50

252

 as the operator of or provider of access to a communications system by means of which

the statement is transmitted, or made available, by a person over whom he has no

effective control;

 as the broadcaster of a live programme containing the statement in circumstances in

which he has no effective control over the maker of the statement;

 as the operator of or provider of access to a communications system by means of which

the statement is transmitted, or made available, by a person over whom he has no

effective control;

 in the moderation of statements posted on a website by others.

It also provides for Regulations that may—

 define a category of persons who, while not being an author, editor or publisher as

defined in subsections (2) and (3), will nonetheless be treated as a publisher for the

purposes of defamation law generally;

 make provision for an appropriate defence of innocent dissemination, applicable to any

person who is treated as a publisher in accordance with Regulations made under this

subsection;

 section 14 of the draft Bill attached to the Report also makes provision for a Court Order

to remove statement or cease distribution. Where a court gives judgment for the claimant

in an action for defamation, the court may order:

the operator of a website on which the defamatory statement is posted to remove the

statement, or

any person who was not the author, editor or publisher of the defamatory statement to

stop distributing, selling or exhibiting material containing the statement.

In Scotland, the Defamation and Malicious Publication (Scotland) Act 2021

789

, contains

several provisions of note in relation to online aspects, which take influence from elements

of the draft Northern Irish Bill (above). Section 3 of the Act

790

, “Restriction on proceedings

against secondary publishers”, limits the circumstances in which an action can be brought

against parties who are not the primary publisher of an allegedly defamatory statement. It

specifies that no defamation proceedings may be brought against a person unless that person

is the author, editor or publisher of the statement that is complained about, or is an employee

or agent of that person and is responsible for the content of the statement or the decision to

publish it.

 “author” is defined as “the person from whom the statement originated, but does not

include a person who did not intend the statement to be published”,

 “editor” is defined as “a person with editorial or equivalent responsibility for the content

of the statement or the decision to publish it”,

 “publisher” is defined as “a commercial publisher (that is to say, a person whose business

is issuing material to the public or to a section of the public) who issues material

containing the statement in the course of that business”.

Section 3 also specifies certain activities and actions that are not to be taken as constituting

editing, in the specific context of statements in electronic form. This is intended to cover

789

Defamation and Malicious Publication (Scotland) Act 2021:

https://www.legislation.gov.uk/asp/2021/10/enacted

790

https://www.legislation.gov.uk/asp/2021/10/section/3/enacted

253

instances such as someone providing links to content containing an allegedly defamatory

statement by way of, CD/DVD, removable flash memory card, email, retweeting such a

statement or a hyperlink to it, “liking” or “disliking” an article containing such a statement,

or posting another similar online “reaction” or “emoji” on republishing the statement. In all

circumstances, for a person to avoid being considered the editor of the statement, the

statement itself must remain unaltered.

It also sets out the further qualification that the persons publishing or marking interaction

must not materially increase the harm caused by the original statement.

It sets out a list of activities that are not to be taken as placing a person in the category of an

author, editor, or publisher. These include moderating and processing the material in relation

to which proceedings are brought, making copies, and operating equipment. Moderating may

involve performing functions offline, such as in relation to letters to the editor in hard copy

newspapers and magazines, as well as online functions.

Section 4 of the Act,

791

“Power to specify persons to be treated as publishers” gives

Ministers powers to make regulations specifying categories of persons who are to be treated

as publishers of a statement, for the purposes of the bringing of defamation proceedings,

despite not being persons who would be classed as authors, editors or publishers by virtue

of section 3. This is designed to cater for a future scenario in which a new category of

publisher emerges and is actively facilitating the causing of harm. The section also makes

provision for further regulations for a defence to defamation proceedings, for persons who

are treated as publishers under those regulations, but who did not know, and could not

reasonably be expected to have known, that the material which they disseminated contained

a defamatory statement and who satisfy any further conditions.

Section 30 of the Act

792

, “Power of court to require removal of a statement”, provides that

in defamation proceedings, a court may order the operator of a website on which the

statement complained of is posted:

 to include on the website a prominent notice that the statement is subject to the

proceedings, or

 to remove the statement, or

 any person who was not the author, editor or publisher of the statement to stop

distributing, selling or exhibiting material containing the statement.

For a notice to be deemed prominent, in must be in a place or form that ensures that a person

accessing the statement is made aware of the notice every time that the person accesses the

statement.

In Ontario, the Law Commission Report on Defamation Law in the Internet Age contains a

series of recommendations in relation to online aspects:

793

791

https://www.legislation.gov.uk/asp/2021/10/section/3/enacted; Defamation and Malicious Publication

(Scotland) Bill Explanatory Notes: https://beta.parliament.scot/-/media/files/legislation/bills/current-

bills/defamation-and-malicious-publication-scotland-bill/introduced/explanatory-notes-defamation-and-

malicious-publication-scotland-bill.pdf

792

https://www.legislation.gov.uk/asp/2021/10/section/30/enacted; Defamation and Malicious Publication

(Scotland) Bill Explanatory Notes: https://beta.parliament.scot/-/media/files/legislation/bills/current-

bills/defamation-and-malicious-publication-scotland-bill/introduced/explanatory-notes-defamation-and-

malicious-publication-scotland-bill.pdf

793

Defamation Law in the Internet Age, Final Report, March, 2020.

254

Definition of Publication

The new Defamation Act should provide that a defamation action may only be brought

against a publisher of the expression complained of. “Publisher” should be defined to require

an intentional act of communicating a specific expression. The Act should also provide that

a publisher of a defamatory expression should not be liable for republication of the

expression by a third party unless the publisher intended the republication.

Online Complaints

Notice to Publisher – A person claiming that a publication is defamatory shall serve a

prescribed notice of complaint on the publisher where it is reasonably possible to do so. For

online publications, service may be made by sending the notice to an intermediary platform

hosting the publication.

Contact Information – Intermediary platforms hosting third party content shall be required

to post their contact information for the purpose of receiving notices of complaint in a

conspicuous location on their platform.

Intermediary Platform Obligations

Forwarding a Notice – An intermediary platform receiving a notice of complaint that meets

the content requirements shall make all reasonable efforts to forward the notice to the

publisher of the allegedly defamatory content expeditiously.

No Assessment of Merits – Intermediary platforms shall not assess the merits of a notice of

complaint.

Administrative Fee – Intermediary platforms may charge an administrative fee to the

complainant for passing on notice in an amount to be established by regulation.

Retain Records – An intermediary platform receiving a notice of complaint meeting the

content requirements shall retain records of information identifying the publisher for a

reasonable period of time to allow the complainant to obtain a court order requiring the

release of the information.

Applicable to intermediary platforms only – The notice obligation should apply to

intermediary platforms hosting third party content made available to users. Internet service

providers, search engines and other intermediaries not directly hosting user content should

have no responsibility to pass on notice.

Online Dispute Resolution

The government should explore the potential for an online dispute resolution mechanism to

improve access to justice in online defamation disputes. This review should take into account

the possibility that, in the future, social media councils or other regulatory models may play

a similar role to online dispute resolution, in informally resolving online defamation

disputes.

Interlocutory Takedown Motions

The new Defamation Act should provide that, on motion by a plaintiff, the court in a

defamation action may issue an interlocutory takedown or de-indexing order against any

person having control over a publication, requiring its removal or otherwise restricting its

accessibility pending judgment in the action, where:

255

 there is strong prima facie evidence that defamation has occurred and there are no valid

defences; and

 the harm likely to be or have been suffered by the plaintiff as a result of the publication

is sufficiently serious that the public interest in taking down the publication outweighs

the public interest in the defendant’s right to free expression.

Takedown Process

The new Defamation Act should provide for a takedown obligation on intermediary

platforms hosting third party content. This takedown obligation shall operate in conjunction

with the integrated notice regime above and should contain the following elements:

 Response – A publisher who receives a notice of complaint from an intermediary

platform may send a response to the platform within two days after receipt of the

complaint. A response must be written but need not be in any particular format. Where

the intermediary platform receives a response within the deadline, it shall forward the

response to the complainant (maintaining anonymity where necessary) and take no

further action.

 Anonymity – Where a publisher is anonymous, the intermediary platform shall maintain

that anonymity in regards to the complainant.

 No Assessment of Merits – Intermediary platforms shall not assess the merits of a

response to a complaint.

 Takedown – Where an intermediary platform is unable to forward the complaint to the

publisher or does not receive a written response from the publisher within two days after

forwarding the complaint, it shall take down the allegedly defamatory content

expeditiously.

 Content to be Taken Down – Intermediary platforms shall only take down the specific

language that is alleged to be defamatory in the complaint.

 Put-Back – An intermediary platform taking down content shall provide notice of the

takedown to the publisher and complainant. If a publisher requests put-back, the

intermediary platform shall repost the content where there is evidence that the publisher

failed to receive the notice or unintentionally missed the deadline and where it is

technologically reasonable to do so.

 Administrative Fee – Intermediary platforms shall be entitled to charge an administrative

fee to the complainant for these services, the amount to be determined by regulation.

 Statutory Damages – Failure by an intermediary platform to comply with its notice and

takedown duties will entitle complainants to an award of statutory damages, the amount

to be determined in the discretion of the court.

 Applicable to Intermediary Platforms only – The takedown obligation shall apply to

intermediary platforms hosting user content. Internet service providers, search engines

and other intermediaries not directly hosting user content shall have no responsibilities

under this legislation.

 Information Resources – Intermediary platforms hosting user content available in

Ontario shall post in a conspicuous location plain language information resources

developed by the Ontario government on making a defamation complaint and the notice

and takedown process.

 Abuse – A person filing a notice of complaint in bad faith or without a reasonable belief

that the impugned content is defamatory shall be liable for statutory damages in an action

brought by the publisher where the notice results in takedown, the amount to be

determined in the discretion of the court.

256

Final Takedown Orders

The new Defamation Act should provide that, where a court gives judgment for the plaintiff

in an online defamation action, the court may order any person having control over the

defamatory publication to take it down or otherwise restrict its accessibility.

In Australia, the Model Defamation Amendment Provisions 2020

794

contain the following

provisions in relation to electronic aspects:

Content of offer to make amends

Section 15 makes provision for an offer to make amends that may include any other kind of

offer, or particulars of any other action taken by the publisher to redress the harm sustained

by the aggrieved person. The list of particulars include an offer to remove the matter from

the website or location, if the matter has been published on a website or any other

electronically accessible location.

Defence of innocent dissemination

Section 32 provides for a defence of innocent dissemination and includes

 a provider of services consisting of the processing, copying, distributing or selling of any

electronic medium in or on which the matter is recorded;

 the operation of, or the provision of any equipment, system or service, by means of which

the matter is retrieved, copied, distributed or made available in electronic form;

 an operator of, or a provider of access to, a communications system by means of which

the matter is transmitted, or made available, by another person over whom the operator

or provider has no effective control;

 a person who, on the instructions or at the direction of another person, prints or produces,

reprints or reproduces or distributes the matter for or on behalf of that other person.

Single publication rule

Schedule 4, 1A introduces a single publication rule based on the 2013 England and Wales

Defamation Act. It also provides for the commencement of the limitation period in relation

to electronic publications to be determined by reference to when the publisher uploads it for

access or sends it electronically rather than by reference to when it is downloaded or

received. This is limited to determining the commencement of the limitation period.

Consequently, it does not change the law concerning when the elements for a cause of action

for defamation are established or the choice of law for determining that cause of action.

Concerns Notice

Part 3 “Resolution of civil disputes without litigation” makes provision for a ‘Concerns

notice’ from an applicant to a publisher in writing, specifying the location where the matter

in question can be accessed (e.g. a webpage address), and informing the publisher of the

defamatory imputations. An aggrieved person cannot commence defamation proceedings

unless:

 the person has given the proposed defendant a concerns notice in respect of the matter

concerned, and

 the imputations to be relied on by the person in the proposed proceedings were

particularised in the concerns notice, and

 the applicable period for an offer to make amends has elapsed.

794

https://www.pcc.gov.au/uniform/2020/Consolidated_Model_Defamation_Provisions.pdf

257

7.7 Issues raised in submissions

Online and offline parity

Several respondents expressed the view that any regulations and thresholds for defamation

should apply to all media content, irrespective of the mode of publication. They argued that

there should be no new differentiation between offline and online defamatory conduct.

795

was also argued that the requirements for proving publication in online defamation cases

needs further clarification particularly in the case of false and defamatory material on the

social networking sites.

796

Innocent/Secondary Publication, and defence for website operators

Several respondents expressed the view that the 2009 Act does not adequately address online

defamation, and in particular, the question of secondary publication. They proposed that the

section 27 defence of innocent publication should be maintained, and extended to operators

of websites, citing the example provided in sections 5 and 10 of the Defamation Act 2013 in

England and Wales.

797

In the event of such an extension, it was proposed that such defences

be restricted to ISPs that follow statutory defamation complaints guidelines.

798

Submissions

also proposed that section 27 be reviewed, following the High Court judgment in Muwema

v. Facebook Ireland Ltd

799

in light of the European Court of Human Rights’ general

principles on freedom of expression and defamation.

800

Third party online content/ User-Generated Content

Third party online content, User-Generated Content (UGC), or User-Created Content

(UCC), includes any form of content (such as images, videos, text, and audio) that has been

posted by users of online platforms such as social media sites, blogs or comment sections of

websites - as opposed to content posted by the owners and operators of same.

Several respondents stated that greater clarity in relation to the responsibilities and liabilities

of internet intermediaries regarding user-generated content was required;

801

and that greater

protections were needed for online hosts with respect to alleged defamatory user-generated

content on their sites.

802

795

Technology Ireland, Law Society, Irish Times, Yahoo.

796

Law Society.

797

Automattic, DCU, Journal, McCann Fitzgerald, Google, Technology Ireland,

798

Public Relations Institute of Ireland: “Statutory guidelines on how complaints are to be made could include:

the timeline for resolution of complaints; how issues can be expedited in particular and defined circumstances;

how an item will be removed, including any follow up or related material; the requirement for a named person

responsible for dealing with such complaints”.

Similar guidelines have since been proposed for online entities as part of the proposed EU Digital Services Act

(Dec 2020),

https://ec.europa.eu/digital-single-market/en/news/proposal-regulation-european-parliament-and-council-single-

market-digital-services-digital

799

[2016] IEHC 519.

800

Tarlach McGonagle, Eoin O’Dell, Dublin Institute of Technology.

801

The Journal, DCCAE.

802

DIT, Automattic.

258

It was argued that providers of news websites are at risk of being held liable for user-

generated commentary below the articles they put up, if such commentary is defamatory,

and that greater protections for online hosts are needed, with respect to alleged defamatory

user-generated content on their sites.

803

It was also argued that such a differentiation placed

some news websites at a disadvantage when compared to defences available to other similar

websites who meet the requirements of the e-Commerce Directive to be considered Internet

Service Providers and the defences available to such designates (e.g. Facebook).

804

It was proposed that legislation be adopted, similar to section 5 of the England and Wales

Defamation Act 2013, to provide specific protections to news websites for third party

comments, regardless of whether they are pre-monitored or not.

805

It was also argued that ‘good faith moderation’ of user-generated content should not deprive

a defendant online service provider or host of the ‘hosting defence’ that would otherwise be

available to it under EU and Irish law in its capacity as an online service provider (e.g. e-

Commerce Regulations (S.I. No. 68 of 2003)/e-Commerce Directive (2000).

806

Notice/Take-down/Initial Remedies

One submission contended that a more efficient mechanism is required for obtaining take-

down of user-generated comments from social media sites. It argued that applying for a

Norwich Pharmacal Order is prohibitively costly for a plaintiff, and also too slow to mitigate

any damage caused by the time the order could be obtained and enforced.

807

A number of online services providers argued that they should not have the responsibility of

policing or censoring content on the internet, particularly in alleged defamation cases, and

that the role of arbiter of online speech should remain with the judiciary.

808

It was proposed that a standardised procedure (similar to the Notice of Complaint process

under section 5 of the Defamation Act 2013 in England and Wales) should be introduced, as

well as a provision similar to section 13 outlining Court Orders to remove a third party

statement or cease distribution etc.

809

Twitter suggested that the US preliminary injunction

process in cases of alleged defamation is a possible model.

810

Google proposed that any notice and takedown procedures envisaged should be compatible

with those of the e-Commerce Directive and e-Commerce Regulations in addressing

notifications of allegedly unlawful information.

811

803

DIT, Automattic.

804

DIT.

805

Newsbrands, Yahoo!, INM, Technology Irl,

806

Local Ireland, NUJ.

807

William Fry.

808

Google, Yahoo!, Automattic, Twitter.

809

McCann Fitzgerald, Technology Irl, Eoin O’Dell, Yahoo!, Google.

810

Twitter. The US preliminary injunction process enables a plaintiff to apply to a court for an initial ruling that

a published statement is likely/capable of being found defamatory before their case enters a full litigation process.

It the plaintiff receives such an order, platforms and online services can give due consideration to such an order

and take action on content containing the statement where appropriate.

811

Google.

259

7.8 Options for Reform

The following options were identified:

 specify that any regulations and thresholds for defamation should apply to all

media content irrespective of the mode of publication;

 clarify the requirements for proving online publication;

 extend the existing defence of ‘innocent publication’ to operators of websites;

 introduce standardised Notice of Complaint process and procedures;

 make specific statutory provision for courts to order an intermediary to remove a

third-party statement or cease its distribution, or to do so while proceeding are

ongoing;

 specify that moderation of user-generated content should not deprive an online

service provider, or host, of the ‘hosting defence’ otherwise available under EU

and Irish law; and

 provide a statutory jurisdiction for the High Court and the Circuit Court to grant a

Norwich Pharmacal order (directing an online services provider to disclose the

identity of an anonymous poster of defamatory material).

Option 1: Specify that any regulations and thresholds for defamation should apply to all

media content online, irrespective of the mode of publication

Arguments in favour

 Current law does not address publication and dissemination of defamatory material via

‘non-traditional’ media such as social networking sites, internet service providers and

bloggers.

 Traditional media publishers face risk of defamation and legal burdens in the digital

world, but non-traditional publishers, such as large ISPs, do not.

 All online publishers should be subject to the same degree of regulation as traditional

media, given their shared capacity for rapid dissemination of content, and potential for

reputational damage.

Arguments against

 Smaller websites, online entities and bloggers do not always operate along the same

professional standards, publishing models or parameters as traditional media.

 Some persons and groups operating smaller websites, online entities and blogs are not

always personally identifiable or readily contactable, and would not have the same

level of editorial control as traditional media has over non-online content.

 In other jurisdictions, the emerging consensus on the issue of online liability is to

define and differentiate between those who should ordinarily be considered ‘author’,

‘editor’ or ‘publisher’, and those who should not.

 Differing treatment and liabilities are already applied to certain types of Internet

Service Providers under the EU e-Commerce Directive; and obligation proposals

260

under the EU Digital Services Act continue to make graduated distinctions between

intermediary service providers according to their scale.

Based on the submissions received and the experience in other relevant jurisdictions, it is

not recommended that the same regulations and thresholds for defamation should apply to

all media content, irrespective of the mode of publication.

Such an approach would not reflect the many varying standards, publishing models or

parameters in the modern media landscape. It would not reflect the current focus in other

jurisdictions, which is to define and differentiate between those who should ordinarily be

considered ‘author’, ‘editor’ or ‘publisher’, and those who should not. It would not reflect

the varying treatment, liabilities and distinctions between information society service

providers, already provided under the e-Commerce Directive. The proposed EU Digital

Services Act continues to make similar graduated distinctions (and introduces additional

ones, in the case of Very Large Online Platforms).

Option 2: Clarify the requirements for proving online publication

Arguments in favour

 Current law does not address the issue of online publication in any great detail, or in

its own right.

 Current law only provides generic definitions for “electronic communications”,

“periodicals” and “statements” ‘published on the internet’; and does not reflect the

variety and nature of content uploaded to, or interacted with, on social media.

 The Defamation and Malicious Publication (Scotland) Act 2021 defines and

distinguishes between ‘author’, ‘editor’ and commercial ‘publisher’; specifies certain

activities and actions that are not to be taken to place a person in the category of an

editor in the specific context of statements in electronic form; and makes provision for

future regulations to classify further categories of persons who may be treated as

publishers of a statement, for the purposes of the bringing of defamation proceedings.

 The Northern Ireland Report made similar recommendations regarding differentiation

between author, editor and publisher.

 The Ontario Law Commission Report recommended that defamation actions should

only be brought against a publisher of the expression complained of; that “publisher”

should be defined to require an intentional act of communicating a specific expression;

and that a publisher of a defamatory expression should not be liable for republication

of the expression by a third party, unless the publisher intended the republication.

Arguments against

 The nature of publication versus dissemination on social media is complex,

particularly given its potentially very high public visibility, potentially ephemeral

nature, and the high risk of re-publication inherent in a social media context,

particularly private groups and pages.

261

 Efforts to identify persons behind non transparent social media content are not always

straightforward, and are complicated by user anonymity.

 Intermediary service providers are reluctant to divulge user data and details without a

court order.

 Even if online publication is established, it may be difficult to measure its impact –

given the varying levels of potential audience reach of different online media platforms

and the difficulty of comparing the quantifiable alt-metrics of a social media post that

is viewed by a large number of people, with the qualitative impact of a post that was

viewed by a few.

 Establishing a unique electronic identifier, origin or initial publication point is not

always straightforward, due to differing technological architecture in use by different

social media platforms.

812

Based on the submissions received and the experience in other relevant jurisdictions, it is

recommended that clarifying requirements in relation to online publication by providing

definitions and/or thresholds would be beneficial.

Doing this would reflect the approaches and direction taken in other comparable

jurisdictions. Clarifying liabilities and/or defences in relation to primary online ‘authors’,

‘editors’ or ‘publishers’ - as opposed to online ‘publication’ as an entity in itself - would

help to avoid many technical complexities, infrastructure and issues regarding various social

media platforms.

Option3: Extend existing defence of ‘innocent publication’ to operators of websites

Arguments in favour

 The Act does not address user-generated content (third-party comments).

 Responsibility for user-generated content and posts should lie with those who have

created it. Internet intermediaries, in most cases, are not the publisher, editor or author

of content, and should not be liable for such.

 The Act already contains the basis of such a defence of innocent publication.

 Conflicting case-law in recent years has created potential for stakeholder uncertainty

on whether the hosting defence in the e-Commerce Directive is available regarding

comments posted on websites.

 Such a defence already exists in England and Wales, and similar proposals have been

made in Scotland, Northern Ireland, Australia and Ontario.

 The Legal Advisory Group on Defamation recommended a much more extensive

defence of innocent publication than was ultimately enacted, involving an integration

812

https://www.irishtimes.com/news/crime-and-law/courts/high-court/facebook-unable-to-find-allegedly-

defamatory-post-about-td-1.4459670

262

of defence of innocent publication and the operation of the e-Commerce Directive

immunities and notice-and-takedown procedures.

Arguments against

 It is not always clear whether the e-Commerce Directive’s exemptions from liability

for intermediary service providers should apply, certain providers also perform editing

functions, such as operators of websites which seek and host third-party reviews,

opinions or feedback on goods and services (e.g. TripAdvisor, eBay, Amazon).

Based on the submissions received and the experience in other relevant jurisdictions, it is

recommended that extending the existing defence of ‘innocent publication’ to operators of

websites would be beneficial. The Act already contains the basis of such a defence of

innocent publication. Doing so would reflect the approaches and direction taken in other

comparable jurisdictions.

Option 4: Introduce standardised Notice of Complaint process and procedures

Arguments in favour

 Defamation in the online world can be immediate, and any potential remedies need to

be faster.

 Current complaint and removal processes from social media platforms can be slow to

access or communicate, involve administrative delays, and are not user friendly.

 There are a variety of notification procedures and practices among hosting service

providers, who may process terms of service violations separately from legal requests,

or have a single contact point. Notices are handled differently by each service

provider.

813

 The proposed change would provide a more timely and efficient process of alerting

internet intermediaries, hosts and platforms to potential defamatory content, than the

existing legal route of seeking Norwich Pharmacal orders.

 In England and Wales, such a process is provided for, in the 2013 Act and Regulations.

 The Law Commission of Ontario Report recommends a new integrated notice regime

applicable to all defamation complaints that:

- is mandatory for complainants but does not preclude them from accessing the

formal court process;

- encourages parties to agree on a range of informal remedies appropriate to the

internet era; and

- operates consistently in respect of both offline and online publications.

813

Overview of the legal framework of notice-and action procedures in Member States, SMART 2016/0039:

https://op.europa.eu/en/publication-detail/-/publication/c5fc48ac-2441-11e9-8d04-01aa75ed71a1/language-

en/format-PDF/source-search

263

The Ontario Report recommends a prescribed notice of complaint on the publisher,

where possible; and for online publications, service may be made by sending the notice

to an intermediary platform hosting the publication. Intermediary platforms hosting

third party content shall be required to post their contact information for the purpose

of receiving notices of complaint in a conspicuous location on their platform. It also

recommends that a standardized form of notice be developed to make it easier for

intermediary platforms to comply with their obligation to pass on notice. It expressed

the view that a form of notice containing language modelling the elements of a

defamation claim and possible defences would have the additional benefit of assisting

complainants to “understand and diagnose their problem, and frame their complaint.

 In the Australian Model Defamation Provisions, defamation proceedings cannot be

commenced without a ‘Concerns Notice’. Part 3 ‘Resolution of civil disputes without

litigation’ makes provision for a ‘Concerns notice’ from an applicant to a publisher in

writing, specifying the location where the matter in question can be accessed (e.g. a

webpage address), and informing the publisher of the defamatory imputations. An

aggrieved person cannot commence defamation proceedings unless:

- the person has given the proposed defendant a concerns notice in respect of the

matter concerned,

- the imputations to be relied on by the person in the proposed proceedings were

particularised in the concerns notice, and

- the applicable period for an offer to make amends has elapsed.

 In relation to the limitation of liability of providers of information society services, the

e-Commerce Directive does not exclude possible procedures established for the

purpose of notification at national level, and provides for the possibility of Member

States' “establishing specific requirements which must be fulfilled expeditiously prior

to the removal or disabling of information”.

814

Arguments against

 Online intermediaries and service providers should not have the responsibility of

policing defamation allegations or censoring content on the internet. The role of arbiter

of online speech should remain with relevant judiciaries.

 In England and Wales, it has been reported that the take up of the section 5 procedure

for responding to defamation complaints concerning third-party content has been very

low, with no reported cases in which section 5 has been invoked at a hearing. The

procedure is seen as complicated, and website operators are often able to rely on other

substantive defences.

815

 The e-Commerce Directive does not provide common notice-and-action procedure,

nor is there a common standard for minimum notice requirements.

816

814

Recital 46, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32000L0031&rid=5

815

https://www.brettwilson.co.uk/blog/defamation-act-2013-a-summary-and-overview-six-years-on/

816

Overview of the legal framework of notice and action procedures in Member States, SMART 2016/0039:

https://op.europa.eu/en/publication-detail/-/publication/7779caca-2537-11e9-8d04-01aa75ed71a1/language-en

264

 Similar procedures and complaint procedures are envisaged by the forthcoming EU

Digital Services Act for information society providers in addressing notifications of

allegedly unlawful information.

817

The Act proposes that online platforms and other

providers of hosting services put mechanisms in place to allow any individual or entity

to notify them of the presence on their service of alleged illegal content. These

mechanisms must be easy to access, user-friendly, and allow for the submission of

notices exclusively by electronic means.

Based on the submissions received and the experience in other relevant jurisdictions, it is

recommended to introduce a prescribed Notice of Complaint process, with time limits, such

as that envisaged by Australia and Ontario, which incentivise parties to make contact at an

early stage, use the intermediary role of internet platforms in connecting complainants and

online publishers, and promote the possibility of swift resolution of defamation disputes

without recourse to litigation.

Option 5: Make specific statutory provision for the court to order an intermediary to

remove a third-party statement or cease its distribution (final order), or to do so while

proceedings are ongoing (interlocutory order)

Regarding a final order:

Arguments in favour

 In England and Wales, section 13 of the Defamation Act 2013 makes provision for a

court order to remove the statement or to cease its distribution. Where a court gives

judgment for the claimant in a defamation action, the court may order the operator of

a website on which the defamatory statement is posted to remove the statement, or

order any person who was not the author, editor or publisher of the defamatory

statement to stop distributing, selling or exhibiting material containing it.

 The Ontario Law Commission Report recommended providing that where a court

gives judgment for the plaintiff in an online defamation action, it may order any person

having control over the defamatory publication to take it down or otherwise restrict its

accessibility.

 A statutory provision empowering the court to order the removal of a specific

statement would be beneficial in cases where the author has refused to do so, especially

if a claimant has secured a final injunction to prevent publication, or has secured a

judgment that it was defamatory.

Arguments against

 It has been argued that the decision of the Supreme Court in Merck Sharp & Dohme v.

Clonmel Healthcare Limited

818

highlighted the question of the settled Campus Oil

819

test for determining injunctive relief, with the Court emphasising the need for essential

817

Article 14, Notice and action mechanisms, and Article 17, Internal complaint-handling system; Proposal for a

regulation of the European parliament and of the Council, on a Single Market For Digital Services (Digital

Services Act) and amending Directive 2000/31/EC:

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52020PC0825&from=en

818

[2019] IESC 65.

819

See: Campus Oil Ltd v Minister for Industry and Energy [1984] ECR 2727.

265

and increased flexibility of the remedy going forward. This will likely apply to all

injunction applications.

820

 In England and Wales, there has been no reported case of a court making such an order

under section 13 of the Defamation Act 2013.

 Many of the leading social media platforms tend to voluntarily remove material which

is subject of a court order, even if the order does not touch upon them directly.

Regarding an order while proceedings are ongoing (interlocutory order):

Arguments in favour

 In Scotland, section 20 of the Defamation and Malicious Publication (Scotland) Act

2021 empowers the court to order the removal of material which is the subject of

defamation proceedings from any website on which it appears, as well as to order a

person who was not the author, editor, or publisher of the material to stop distributing,

selling, or exhibiting material containing the statement. The exercise of the power is

not dependant on the final outcome determined in proceedings, and as such, the court

would be entitled in an appropriate case to grant such an order on an interim basis.

 The Ontario Law Commission Report made a series of recommendations for a

takedown obligation on intermediary platforms hosting third party content in

conjunction with an integrated notice regime, including:

o that the takedown obligation shall apply to intermediary platforms hosting user

content. Internet service providers, search engines and other intermediaries not

directly hosting user content shall have no responsibilities under this legislation;

o where an intermediary platform is unable to forward the complaint to the

publisher or does not receive a written response from the publisher within two

days after forwarding the complaint, it shall take down the allegedly defamatory

content expeditiously;

o intermediary platforms shall only take down the specific language that is alleged

to be defamatory in the complaint;

o intermediary platforms shall be entitled to charge an administrative fee to the

complainant for these services, the amount to be determined by regulation;

o failure by an intermediary platform to comply with its notice and takedown

duties will entitle complainants to an award of statutory damages, the amount to

be determined in the discretion of the court;

o a person filing a notice of complaint in bad faith, or without a reasonable belief

that the impugned content is defamatory, shall be liable for statutory damages in

an action brought by the publisher where the notice results in takedown, the

amount to be determined at in the court’s discretion.

Arguments against

 Interlocutory injunctions are already available in the Irish courts.

820

‘Joanne Ryan: Interlocutory injunctions and the fallout from Merck Sharpe & Dohme’:

https://www.irishlegal.com/article/joanne-ryan-interlocutory-injunctions-and-the-fallout-from-merck-sharpe-

dohme; ‘Tipping the Balance: Interlocutory Injunctions in Ireland Refreshed’:

https://www.lexology.com/library/detail.aspx?g=9431f3c4-7b6d-45d2-81a2-ff024ee5c27b

266

 Need to strike the appropriate balance between the rights of the multiple parties, access

to justice and freedom of expression.

 May be utilised in SLAPP actions to chill free speech, legitimate criticism, healthy

debate, and genuine investigative journalism.

 Strong preference by internet intermediaries for leaving content accessible to users, in

its original form, until a court process determines whether the material should be left

up or taken down on a proper evaluation of the evidence.

 May result in increase in vexatious allegations on dubious grounds, with an increase

in applications to court and internet intermediaries being required to remove large

amounts of content.

 Practical and technical considerations involved in content removal, and the ease with

which content can be re-uploaded subsequently to other sites, may cause compliance

difficulties for internet intermediaries.

Based on the submissions received and the experience in other relevant jurisdictions, it is

recommended to make statutory provision for Courts to order an intermediary to remove a

third-party statement or cease its distribution, or to do so while proceedings are ongoing.

While section 33 of the 2009 Act provides for a Court to make an interlocutory order

prohibiting the publication of a defamatory statement, subsequent judgments have pointed

to a disparity of language in the 2009 Act in relation to ‘orders’ and ‘opinion’, and confirmed

that the threshold to obtain injunctive relief under the 2009 Act remains as high as that

previously available at common law.

Introducing a faster mechanism for the court to rule on whether material appears defamatory,

to enable online platforms to take down material quickly under protection of an initial court

ruling, would provide a more effective and less expensive alternative.

Option 6: Provide that moderation of user-generated content should not deprive an online

service provider or host of the ‘hosting defence’ otherwise available under EU and Irish

law.

Arguments in favour

 It is next to impossible to check the factual basis of statements or the honesty of the

opinion expressed in user-generated comments, given the volume of traffic, posts and

24-hour nature of websites.

 Automatic pre-moderation of user-generated content is regularly employed to filter out

obscene language and attempted spam, but does not involve deliberate editorial

selection of content.

 Such ‘good faith’ moderation and/or modification (both human and automated) of user-

generated content by an online service provider should not deprive the provider of the

defence that would otherwise be available to it, under EU and Irish law, in its capacity

as an online service provider.

267

Arguments against

 The ‘hosting’ defence set out in the e-Commerce Regulations (S.I. No. 68 of 2003),

implementing the e-Commerce Directive, already exempts an online service provider

from liability for defamatory user-generated content, if the provider takes down the

material expeditiously, once it is notified or otherwise becomes aware of its

defamatory nature.

 To benefit from the liability exemption under Article 14 e-Commerce Directive, the

hosting service provider must carry out an activity of a mere technical, automatic and

passive nature, which requires that it does not have knowledge or control over the

information stored (passive and neutral hosting service provider). The CJEU linked

the liability exemption under Article 14 to Recital 42 of the e-Commerce Directive,

which requires that the activity is ‘of a mere technical, automatic and passive nature’.

 Exemption from liability is thus available only to passive and neutral hosting service

providers. The CJEU has provided some guidance, requiring that the hosting service

provider must not have knowledge and control over the data stored. However,

absence of knowledge or control must be evaluated in relation to each activity.

Recent case-law indicates that hosting service providers may be neutral and passive

for certain activities but active for others.

 According to the case-law reviewed, classification as an active hosting service

provider stems mainly from the ‘human component’ in the categorisation of the

uploaded content rather than an algorithm, or from advertising by means of support

or promotion of offers, by way of "adopting" the third-party content, or from active

promotion of sales through similar offer banners.

821

Based on the experience in other relevant jurisdictions, it is not recommended to make

provision that ‘moderation’ of user-generated content should not deprive an online service

provider or host of the ‘hosting defence’ otherwise available under EU and Irish law. The

area is complex in terms of EU case-law, and is likely to be the subject of further guidance

from the Court of Justice of the EU and of further provision under the EU Digital Services

Act (when adopted).

Option 7: Provide a statutory jurisdiction for the High Court and the Circuit Court to grant

a Norwich Pharmacal order (directing an online services provider to disclose the identity of

an anonymous poster of defamatory material)

Arguments in favour

 This option was among the recommendations made by the Law Reform Commission

in its 2016 Report ‘Harmful Communications and Digital Safety’ (see section 7.5.1 of

this chapter) and is particularly relevant in defamation cases.

 The Circuit Court has jurisdiction to hear and decide defamation cases (including online

defamation), but no jurisdiction to make a Norwich Pharmacal order.

821

Overview of the legal framework of notice-and action procedures in Member States, SMART 2016/0039:

https://op.europa.eu/en/publication-detail/-/publication/c5fc48ac-2441-11e9-8d04-01aa75ed71a1/language-

en/format-PDF/source-search

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 Making a Norwich Pharmacal order available in the Circuit Court should also reduce

the costs involved for all parties (and particularly for the plaintiff, who often has to pay

the online services provider’s legal costs, as well as their own) and ensure that such

orders are more accessible in practice.

Arguments against

 No significant arguments against were identified.

Based on these considerations, it is recommended to provide a statutory power to grant a

Norwich Pharmacal order (directing an online services provider to disclose the identity of an

anonymous poster of defamatory material), and that such orders could be granted by the Circuit

Court (along the lines recommended by the Law Reform Commission in 2016) rather than only

by the High Court, as at present.

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Chapter 8: Recommendations

KEY RECOMMENDATIONS