Ireland's defamation law regime, among the harshest in Europe, has been condemned by the Council of Europe, the European Court of Human Rights, the European Commission, as well as freedom-of-speech NGOs. Huge awards and unpredictability are regarded by media organisations as threats to the freedom of the press and to their financial viability. Those payouts, and the lack of transparency surrounding them, have been criticised also by the Supreme Court.
The welcome – although long overdue – review from the Department of Justice yesterday sets out important steps to reforming the system. Most notably it suggests bringing defamation law into line with the bulk of civil law litigation by ending the role of juries, which have considerably lengthened trials, increasing their prohibitive costs, and shown a disposition to award damages that put those given in physical injury cases into the halfpenny place. The recommendation of the introduction of a right to seek dismissal of groundless or exaggerated suits, a so-called “anti-Slapp” (Strategic Lawsuit Against Public Participation) defence, could provide important protection against all-too-familiar attempts by the rich and powerful to muzzle investigative journalism with pre-emptive actions.
There are, however, a number of regrettable omissions. Additional protection against massive damages awards could be provided by setting a ceiling on them, as in the UK. The introduction of a "serious harm" defence, similar to that introduced in England and Wales in 2013, would require litigants to prove that the alleged defamation is likely to cause serious harm to reputation, before a case could go forward.
The report's recommendations on encouraging the use of alternative dispute resolution mechanisms such as the Press Council/Ombudsman should help the latter in its work. It was given statutory recognition by the Defamation Act in 2009, and provides a cheaper, less arduous route to redress for aggrieved members of the public. Engagement with the Press Council redress system by publishers, the report recommends, would be among the grounds considered by a judge in mitigating the scale of awards if the complaint reached the courts.
In facilitating the public’s right to require online platforms to name posters of alleged defamation, toughening up their obligations speedily to take down complained-of material, and to provide support for early and quick resolution of disputes, the report is making a welcome start to curbing the impunity of powerful social media companies. That power must be tempered by responsibility. In the end, the reform of the defamation regime must be about balancing protection of freedom of the media and the justiciable rights of citizens to a good name.