As outlined in further detail in our briefing in December 2023, the General Scheme of the Defamation (Amendment) Bill was unveiled in March 2023 and, in September 2023, the Houses of the Oireachtas Joint Committee on Justice (the “Committee”) produced a report on the General Scheme (the “Committee Report”).

Our December 2023 briefing highlighted the key reforms proposed in the General Scheme and the recommendations of the Committee (including the retention of juries in High Court defamation actions to make findings of fact).

We analyse the Bill below, noting those recommendations which have been adopted and, notably, have been excluded.  

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Key Takeaways

Jury Trials

The General Scheme had proposed the elimination of jury trial in High Court defamation cases, with a view to increasing transparency and certainty and reducing disproportionate awards, legal costs and the length of hearings. aims to streamline the process and potentially reduce litigation costs.

Following the receipt of divergent submissions on this point by the Committee, the Committee Report ultimately recommended that juries should maintain their role in High Court defamation actions with regards to making findings of fact and indicative proposals of suitable levels of damages, with judges making the final decision on the quantum of damages.

The Bill has departed from the Committee Report and provides for the elimination of jury trials in all proceedings instituted after the date of implementation.

Serious Harm Test

The Bill proposes the introduction of a “serious harm” threshold for defamation actions involving bodies corporate. To this end, a company claiming defamation will have to demonstrate that the harm caused or is likely to cause “serious harm” to its reputation.

As we outlined in our previous briefing, this narrow application differs from the UK’s approach, which applies the “serious harm” test to all defamation actions.

Strategic Lawsuits Against Public Participation (“SLAPPs”)

The General Scheme had recommended measures to address defamation actions being used as SLAPPs, including judicial training, a broader definition of SLAPPs and alignment with the EU’s anti-SLAPP Directive.

Part 7 of the Bill mirrors the EU’s anti-SLAPP Directive and, in cases where defamation proceedings are based on unfounded claims and are not genuinely intended to assert or exercise a right, but rather aim to prevent, restrict, or penalise public participation — often exploiting an imbalance of power between the parties — the defendant may apply to the Court to seek an Order:

1. striking out the claim as being manifestly unfounded; and
2. declaring that the proceedings amount to a SLAPP.

These measures seek to balance a party’s right of access to the Court to vindicate their right to a good name with the defendant’s right to fair procedures and freedom of expression.

The Statute of Limitations

The Committee had recommended that consideration be given to setting the statute of limitations for defamation actions at two years, thereby increasing the current one-year limit (with a possible extension to two years), to address criticism that the current limit is impractical where defamation is not immediately apparent. The Committee had, further, recommended incorporating a “discoverability” test for certain defamation actions, enabling individuals to bring a claim within a reasonable period after becoming aware of the defamation, and that the clock be paused for a set period when individuals engage in alternative dispute resolution.

Notably, the Bill has not followed these recommendations and the clock will run for one year from when the alleged defamatory content is first posted and accessible to the public.

Norwich Pharmacal Orders

The General Scheme had proposed allowing both the Circuit and High Court to make identification orders (“NPOs”) in cases of anonymous defamation, in circumstances where there is currently no statutory basis for such relief in Ireland.

The Bill does not make provision for this recommendation, although there is some indication that it will be part of subsequent amending legislation.

Notice of Complaint Procedure

The General Scheme proposed the introduction of a Notice of Complaint process with a view to resolving complaints as early as possible without recourse to the Courts. The language in the General Scheme, however, had attracted criticism given the operational burden it placed on online platforms to assess potentially defamatory material and the Committee had recommended that the Courts, rather than social media companies, be responsible for assessing whether on-line material is defamatory.

Although this provision is arguably overtaken by the provisions of the Digital Services Act, this procedure has been omitted from the Bill.

Tackling Libel Tourism

The General Scheme sought to address the perceived risk of forum-shopping by providing that the Courts would not have jurisdiction over defamation actions against persons not domiciled in Ireland, another EU Member State, Switzerland, Norway or Iceland unless the Court is satisfied that Ireland is the most appropriate jurisdiction. This approach mirrored the precedent set in English law.

These proposals have, notably, been excluded from the Bill.

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Looking Ahead

The overhaul of Ireland’s defamation laws, and the publication of the Bill, was widely anticipated. The Bill is expected to garner significant debate over the coming months, particularly in light of the delicate balancing act of the right to freedom of expression and the right to a good name protected under the Irish Constitution.   

We will continue to monitor developments, and particularly any amendments, as the Bill makes its way through the Oireachtas. Given the likelihood of an upcoming election, there is limited time to pass the Bill. If the Bill is not passed before the dissolution of the Dáil, it will lapse and have to be reintroduced.

If you would like to discuss any of the matters covered in this briefing, please get in touch with any member of our Litigation, Dispute Resolution, and Investigations Group.