Defamation reforms seek to clamp down on ‘libel tourism’ and anonymous online posts

A major reform of defamation laws that will abolish juries in High Court actions, clamp down on “libel tourism” and make it easier to access information about anonymous posters online is set to be approved by the Government on Tuesday.

Minister for Justice Simon Harris will seek approval for draft legislation to reform the Defamation Act 2009 at the weekly meeting of the Cabinet.

He has said he hoped the legislation would be prioritised with the formal Bill being published by the end of this year.

The legislation proposes fundamental changes to the laws used by individuals and groups for protection of reputation in the face of rapid changes in technology which have changed the way information is distributed and handled.

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The law aims to decrease the substantial level of damages often awarded, and the associated high legal costs and delays, when cases progress to the courts. The legislation also proposes the abolition of juries in High Court defamation actions.

Under the proposed law, if a person is defamed, the correction must be published with equal prominence to the defamatory publication. If the offending report was the lead story for a news organisation, the correction would occupy the same space or slot.

Mr Harris is also expected to tell colleagues that he will add new provisions to address “libel” tourism, where a plaintiff chooses to take the defamation case in a jurisdiction which awards the highest damages. There have been a number of these high-profile defamation cases taken in Ireland in recent years, where neither of the parties were resident in the State.

Other reforms include a new defence for live broadcasting should a contributor unexpectedly make a defamatory comment during a programme. The broadcaster will need to show, however, that it took reasonable measures, before and during the broadcast, to prevent that from happening.

There is also a measure to tackle strategic lawsuits against public participation (Slapps). These pre-emptive legal actions can have a chilling effect, say critics, as they burden the other party with the prospect of prohibitive legal costs.

The power of the High Court to compel online companies and social media providers to provide identification details of anonymous users of their services will now be extended to the Circuit Court.

It also intends to introduce a statutory Notice of Complaint process, to make it easier, quicker and cheaper to notify a digital publisher of online defamatory content, and request that it be taken down.

The 2009 legislation has been overtaken somewhat by technology and developments in defamation law elsewhere, which have left Ireland as somewhat of an outlier in terms of the quantum of damages being awarded.

Mr Harris is expected to tell colleagues that without robust protection for the right of freedom of expression, democracy can be compromised. He is also expected to argue that a balance must be struck between that right and that of an individual to protect their good name and reputation.

The proposed legislation comes on the back of a major review of the 2009 Act ordered by Helen McEntee which, among other things, highlighted the need for easier access to justice. The draft Bill is expected to ensure that defamation is no longer seen as a “rich man’s law”.