The Minister for Justice’s proposals for reform of the Defamation Act are welcome but do not go far enough, according to ISME, the small and medium employers representative group.
ISME welcomed several of the proposed reforms, particularly one setting a harm test for “transient defamation” which, it hoped, will “put a stop” to the most frequent source of lawsuits against retailers, involving people alleging they have been wrongly accused of shoplifting.
“The notion that someone who has been asked to open their shopping bag by a security guard should be awarded thousands of euros by our courts for defamation is patently absurd, yet it has been going on here for years.” it said in a statement.
It was reacting to reports that the Minister for Justice Helen McEntee will bring proposals to Cabinet next week for defamation law reform set out in a report compiled following a review of the Defamation Act.
The report recommends the abolition of juries in High Court defamation cases, and proposes that judges decide whether or not there was defamation and on any redress. The hope is that will reduce the number of excessive or disproportionate awards and reduce the length of hearings and legal costs.
The report stops short, due to what is described as difficult constitutional issues, of proposing a cap on damages awarded for defamation cases. Other proposed reforms include a statutory obligation for parties to a defamation dispute to consider mediation as well as measures to discourage SLAPP (Strategic Lawsuits Against Public Participation) litigation.
SLAPP cases involve exaggerated claims typically issued by wealthy companies or individuals against less well-resourced parties who engage in criticism or debate on an issue of public interest that the claimant finds uncomfortable.
ISME welcomed the anti-SLAPP proposals, saying it regularly faces vexatious lawsuits as a result of its lobbying activity, but said it is “very concerned” about “three key omissions” from the reform proposals.
It appears there will be no accommodation of “fair trial rights” when a “perverse” outcome of the current act is that aggravated damages can be awarded where a defendant mounts a robust defence against the claim lodged against them, it said.
“This is most unfair where a statement may in fact be true, but the defendant cannot access the necessary proof to prove the truth of a statement. It forces many defendants to plead guilty, even when they are not.”
The fact there “appears to be no general requirement to prove harm” is another “very serious” omission because a defamation claim requires the defendant to prove themselves innocent, it said.
This omission would mean plaintiffs can sue in cases where there might be no written record, or where the wording complained of is ambiguous.
Unless a “serious harm” test is introduced, the Defamation Act as it currently stands “will require so much amendment as to be effectively rewritten”, it said.
The absence of a proposal to cap damages is another serious concern, ISME said.
The suggestion of “constitutional issues” with a cap “is legal and constitutional nonsense”.
ISME’s position that there is no constitutional impediment to the capping of damages has been affirmed by the Law Reform Commission and several pieces of primary legislation, which have capped damages for decades have also not been held to be unconstitutional, it said.
The absence of a cap went to the heart of the finding by the European Court of Human Rights, in a case by Independent Newspapers (Ireland) Limited against Ireland, that “unreasonably high” damages for defamation claims can have a chilling effect on freedom of expression and that there must be adequate domestic safeguards to avoid disproportionate awards.
If the government decides against a fixed cap on damages, it can recommend a proportionate cap, such as in the Unfair Dismissals and Protected Disclosures Acts, which tie compensation to the remuneration of the plaintiff, ISME said.
Without a cap, it is unlikely an amended Defamation Act will survive an appeal to the European Court of Human Rights and the Minister should address this “flaw” before bringing the proposed amendments before the Oireachtas, ISME warned.