The absence of a “serious harm” test for defamation claims in the government’s new Defamation Bill is “significant, material and unjustified”, an employers’ representative body has said.
Neil McDonnell, chief executive of the Irish Small and Medium Employers (Isme) group, said the Bill contains some welcome reforms but falls short of the “material” reforms required.
Urging the introduction of a legislative cap on defamation damages, he said Isme had recommended the maximum award for general damages in most defamation cases be set at a statutory maximum of €75,000, with some exceptions.
The guidance on defamation damages issued by the Supreme Court in a 2022 judgment, Higgins v Irish Aviation Authority, is “ill-considered” and “totally inconsistent” with the Judicial Council’s guidance on damages for serious and catastrophic injuries, he said.
The Defamation (Amendment) Bill 2024, published last week, is expected to come before the Oireachtas in the autumn. A coalition of editors of national and local newspapers and websites has written to the Taoiseach and the Minister for Justice urging its enactment be prioritised.
On Tuesday, Isme welcomed some key proposals in the Bill, including the abolition of juries in High Court defamation actions and an expanded definition of qualified privilege to address “vexatious” use of defamation actions in retail settings.
Proposals regarding security for costs, and applications to strike out claims in Slapp (Strategic Litigation Against Public Participation) cases were welcome but must be “rigorously applied” by the courts, it said.
“Slapp cases in particular are very damaging and are an effective abuse of the legal process, where the primary objective is to harass, intimidate and apply undue and improper psychological and financial pressure against one’s opponent,” Mr McDonnell said.
The anti-Slapp proposals are “most welcome” but “insufficient”, he said. Isme wanted explicit protection for complainants to the Legal Services Regulatory Authority (LSRA) to prevent some “unscrupulous” lawyers issuing defamation threats against them.
[ Defamation Q&A: How will law change for those defamed or being sued?Opens in new window ]
He described the absence of a serious-harm test as equivalent to saying: “We will continue to allow people, against whom you have done no wrong, to sue you in the courts; but allow you to claim qualified privilege when mounting a defence against them. This will cost you tens of thousands of euro, which you will not subsequently recover even if you win.”
It is “not at all clear” that the Department of Justice’s view that such a test could compromise a plaintiff’s constitutional right of access to justice is well grounded in constitutional law, he said.
The absence of a serious-harm test and reforms to stop “libel tourism” will mean Irish courts will continue to host “nonsensical” defamation proceedings into the future, he said.
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