Judges will take into account attempts at mediation when deciding on damages payouts or redress in defamation cases as part of landmark reforms being brought to Cabinet this week.
Minister for Justice Helen McEntee is to seek Government approval to develop a Bill which would overhaul Ireland’s defamation laws on foot of a review of the 2009 Defamation Act.
The report recommends the abolition of juries in High Court defamation cases, and says a judge should decide the level of redress, including the amount of any damages, as well as whether defamation has occurred.
The report also recommends measures to stop powerful individuals or entities from bringing vexatious legal proceedings to weaken or deter public interest discussion and investigative journalism.
An “anti-SLAPP” mechanism would allow a person to apply to court for summary dismissal of defamation proceedings. A typical SLAPP – “Strategic Lawsuit Against Public Participation” – is defined as a groundless or grossly exaggerated action which is often issued by wealthy companies or individuals against weaker parties. The weaker parties may have engaged in criticism or debate that is uncomfortable to the litigant on an issue of public interest.
Such proceedings are seen as being designed to censor, silence or intimidate critics by burdening them with deliberately high costs of legal defence.
Another recommendation would allow defendants to lodge a sum of money in court as a reasonable compensation offer when parties cannot agree on a damages amount.
Under another recommendation the participation by a party in alternative dispute resolution processes would be among the factors to be considered by a judge in assessing the redress to be awarded in defamation proceedings.
The reforms could also give powers to the court to dismiss a defamation claim that is not progressed within two years of being issued unless special circumstances justify the delay. This is in order to reduce a proliferation of stale claims.
The report also recommends the introduction of a requirement for a court to be satisfied that Ireland is the most appropriate place for an action to be heard. This aims to address a perceived risk of international forum-shopping or “defamation tourism” into Ireland.
A cap on damages in defamation cases is not being recommended due to this posing “difficult constitutional issues”.
A general requirement to prove “serious harm” is also not being recommended except in two instances. In the first instance such a test could be available in cases of “transient defamation” such as when a comment is made in the course of providing or refusing retail services. There have been a number of defamation actions arising from allegations of shoplifting in recent years.
In the second instance a corporate entity would not be able to 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.
Consideration may also be given as to whether smaller entities such as small and medium enterprises should be exempted from this requirement.
Ireland’s restrictive defamation laws have long been criticised by the media as constraining investigative journalism.
The industry group representing newspapers, Newsbrands, last year criticised the high level of awards paid out to plaintiffs who took defamation cases against media outlets, which were “far in excess of other jurisdictions”.
The costly fallout from defamation cases was having a “profound impact on the financial viability of both national and local news publishers”, it said.
The Paris-based Reporters Without Borders group, also known as Reporters sans Frontières , also said the lack of reform had helped to sustain “a prohibitive atmosphere for journalists reporting stories involving high-profile public figures and significant private interests”.