1. Introduction
The origins of the aphorism “better late than never” may lie in Livy’s History of Rome (c27-9 BCE). Its first recorded use in English seems to be in Chaucer’s Canterbury Tales (c1387-1400); in The Canon’s Yeoman’s Tale, the Yeoman (pictured right, from the Ellesmere Chaucer) says ([1410]-[1411]):

Lest ye lese al; for bet than nevere is late.

Lest you lose all; for late is better than never.

Nevere to thryve were to long a date.

Never to thrive would be too long a time.

No doubt there are scholars of Latin or Middle English in the Department of Justice, as the Defamation (Amendment) Bill 2024, long long in the making, has finally arrived, better late than never, though it is very very late indeed. On 1 January 2010, the Defamation Act 2009 came into effect, modernising Irish defamation law and putting it largely on a statutory footing. Section 5 provided for a review of the Act to commence within five years, and to be completed within a further year. In the first of many pushed deadlines, the review process commenced in November 2016. After extensive consultation, in March 2022, the Department of Justice published a Report of the Review of the Defamation Act 2009 (the Report); in March 2023, the Department published a Draft General Scheme of the Defamation (Amendment) Bill (the Heads); in September 2023, the Joint Oireachtas Committee on Justice published their Report on Pre-Legislative Scrutiny of the General Scheme of the Defamation (Amendment) Bill (pdf) (the PLS); and today, the Defamation (Amendment) Bill 2024 and accompanying Explanatory Memorandum (pdf) have been published on the Oireachtas website. It has therefore been a long time coming; but better late than never.

The Bill was announced last week, and it was welcomed (Addleshaw Goddard | BBC | Belfast Newsletter | Irish Times editorial | Matheson | NewsBrands) and criticised (Judge Bernard Barton | Prof Neville Cox: here and here | Examiner editorial | The Law Society) in equal measure. The most balanced assessment was by Catherine Sanz, who described it as a valiant attempt to change the status quo, and concluded that the jury was still out on whether the Bill’s reforms could deliver meaningful change

Now that we have the full text of the Bill, we can see which of these positions are justified. It is largely as anticipated, covering issues such as the abolition of juries in defamation cases, requiring serious harm in the case of defamation of bodies corporate, providing for a qualified privilege in cases of transient retail defamation, clarifying aspects of the offer to make amends procedure, providing a new defence in relation to live broadcasts, and significant new provisions relating to engagement in public participation and alternative dispute resolution.

In this post, I want to welcome the Bill, and make a few comments about two things I particularly welcome, two things that I think could and should be improved, two things that have disappeared from the Heads, and two things that have recently emerged that could be included in the Bill as it goes through the Oireachtas.


2. Two good things
I am very happy to see that the Bill has (i) extensive provisions relating to Strategic Lawsuits Against Public Participation (SLAPPs), and (ii) expanded the definition of “periodical” to ensure that online publications can be members of the Press Council.

2.1 SLAPPs
Part 7 of the Bill introduces a new Part 4A into the 2009 Act: “Additional Provisions Regarding Defamation Proceedings Relating to Engagement in Public Participation”. In the case of defamation proceedings

that pursue unfounded claims and that are not brought to genuinely assert or exercise a right, but that have as their main purpose the prevention, restriction or penalisation of public participation, frequently exploiting an imbalance of power between the parties (see section 17 of the Bill, introducing a new section 34A into the 2009 Act)

then the defendant in the defamation may apply to the Court (i) to strike out the claim as being manifestly unfounded and (ii) to declare that the proceedings amount to abusive court proceedings against public participation (see section 17 of the Bill, introducing new sections 34E and 34F into the 2009 Act).

This is an attempt to balance the plaintiff’s right of access to the court to vindicate the right to a good name, with the defendant’s right to fair procedures and freedom of expression. When the Oireachtas is essentially engaged in a balancing of constitutional rights and duties, then the role of the Court, according to Finlay CJ in Tuohy v Courtney [1994] 3 IR 1, 47 

is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.

It does not seem to me that an anti-SLAPP provision would fail this rationality standard of review. But the devil will be in the detail, and it may be that there is too much of it here. As the PLS recommended, training should be offered to judges in relation to the hallmarks of a SLAPP case, so that they are better able to identify these cases when they present. Moreover, is important that the test that the applicant in the anti-SLAPP application has to satisfy (here, that the defamation claim is “unfounded”) is not so high, or interpreted so strictly, as to render the process a legislative dead letter. And it is equally important that respondents in these applications are not able to introduce so much procedural complexity and substantive assessment as to render the process practically unworkable (see, eg, Park Lawn Corporation v Kahu Capital Partners Ltd (2023) 165 OR (3d) 753, C2023) ONCA 129 (CanLII) (28 February 2023) [38] (Pepall JA; Trotter and Thorburn JJA concurring); Hansman v Neufeld [2023] __ SCR __, 2023 SCC 14 (CanLII) (19 May 2023) [49], [51], [93] (Karakatsanis J; Wagner CJ and Rowe, Martin, Jamal and O’Bonsawin JJ concurring))). In either case, the statutory provisions must not be too cumbersome.

2.2 Online publications and the Press Council
I am a big fan of the Press Ombudsman and Press Council provided for in the 2009 Act. Since then, some ambiguity had emerged as to whether online publications could be members, subject to its dispute resolution architecture. Section 3 of the Bill amends the definition of “periodical” in section 2 of the 2009 Act, to expand the jurisdiction of the Press Ombudsman and Press Council to online publications.

Also welcome are the amendments relating to the procedure for an offer of amends, and the new defence in relation to live broadcasts.

3. Two not-so-good things
There are two things in the Bill that I think could and should be improved, relating to its treatment of serious harm, and to its headline recommendation on the abolition of juries.

3.1 Serious harm
In England and Wales, section 1(1) of the 2013 Act provides that a statement “is not defamatory unless its publication has caused or is likely to cause serious harm” to the reputation of the plaintiff (emphasis added). As Lord Sumption explained (Lords Kerr, Wilson, Hodge and Briggs concurring) in Lachaux v Independent Print Ltd [2020] AC 612, [2019] UKSC 27 (12 June 2019) [16], the main reason why harm which was less than “serious” had given rise to liability before the Act was that damage to reputation was presumed from the words alone and might therefore be very different from any damage which could be established in fact. Hence, in his view ([12]), section 1(1) provided for a high threshold, to be determined by reference to the actual facts about the impact of the defamation and not just to the meaning of the words. In a review of the post-Lachaux authorities, Stephen Bogle & Bobby Lindsay (“How serious is the serious harm threshold?” (SSRN)) paint a picture of a provision operating reasonably well, though often at quite a late stage in proceedings (though, again, better late than never). The 2023 Heads did not follow this lead, but the PLS recommended that consideration be given to introducing a serious harm test for all cases of defamation. The 2023 Heads had instead added a similar test in three specific contexts, relating to claims by bodies corporate and public authorities, and in the setting of transient retail defamation (where I think a serious harm test makes the most sense). Now, the Bill has retained this only for bodies corporate (see section 6 of the Bill, providing for a new section 12 of the 2009 Act), says nothing in respect of public authorities, and provides a specialist transient retail defence of qualified privilege (see section 8 of the Bill, amending section 18 of the 2009 Act).

It might be thought that such a serious harm test, either generally or in specific contexts, raises questions about the plaintiff’s constitutional right of access to justice. I’m not convinced that the right is engaged here. But, even if it is, it is countervailed by other constitutional rights, such as the defendant’s right to freedom of expression. On this basis, it does not seem to me that a serious harm test would fail the rationality standard of review set out by Finlay CJ in Tuohy v Courtney (above). Nevertheless, the Department is not likely to change its mind on this issue at this stage.

3.2 Juries
Section 4 of the Bill provides that “a defamation action in the High Court … shall not be tried with a jury”. Since it was discussed in the Report and proposed in the Heads, it has proved a controversial proposal. For example, the PLS rejected the proposal and recommended that juries be retained in the High Court. One alternative position is that High Court defamation cases would not be tried with a jury, unless the judge decides that the interests of justice required otherwise. This, for me, is the optimal solution (here and here). It is the position in England and Wales, and in Northern Ireland; it is very unusual that an application that the case be tried with a jury would be successful; though it is not impossible (Swann v Morrison [2023] NICA 19 (28 March 2023)). A related proposal is that, to the extent that juries are retained, their role should be more limited than it is now; for example, they might be able to decide questions such as whether the plaintiff has established a claim in defamation, and whether a defendant has established a defence; but matters of remedy, especially as to quantum of damages, should be decided by judge alone. The PLS recommended that the jury still be able to recommend damages, but that the judge should not be bound by that recommendation. The Bill does not go down either road, but amendments cannot be ruled out (perhaps as the price of opposition co-operation on other aspects of the Bill).


4. Two disappearances
At least two important matters have been dropped between the Report and Heads, on the one hand, and today’s Bill, on the other. They relate to the defence of reasonable publication and libel tourism.

4.1 Reasonable publication
Section 26 of the Defamation Act 2009 introduced a new defence of fair and reasonable publication into Irish defamation law. But it proved too cumbersome to be effective. By way of contrast, in England and Wales, section 4 of the Defamation Act 2013 subsequently introduced a similar defence, but in much simpler terms. The Report and Heads proposed to replace section 26 of the 2009 Act with a provision similar to that in section 4 of the 2013 Act. I don’t recall any great pushback against that recommendation – (indeed, the PLS recommended that the defence be further simplified) – but it doesn’t seem to have made its way into today’s Bill. I just don’t understand why this should be.

4.2. Libel Tourism
Libel tourists are those who come to Dublin, to see the sights, drink the Guinness and whiskey, and commence a defamation action with little connection to the jurisdiction. To address this perceived risk, the Report and Heads proposed that an Irish court would not have jurisdiction unless it was satisfied that Ireland is “clearly the most appropriate place” for the action to be brought (as is now the case in England and Wales: see section 9 of the 2013 Act). Unfortunately, this provision has also disappeared. And, again, I just don’t understand why this should be.

Also unaccountably missing from the Bill are provisions similar to those in the Heads relating to the duties of operators of websites, in particular on their duties when put on notice of defamatory material.

5. Two recent developments
Two matters that have emerged since the Report and Heads relate to the protection of sexual assault victims and the jurisdiction of the Circuit Court.

5.1 The protection of sexual assault victims
Section 22 of the Justice Legislation Amendment (Integrity, Defamation and Other Matters) Bill 2024, currently working its way through Parliament in Victoria, Australia, provides a new defence of absolute privilege where

the matter is published to a person who, at the time of the publication, is an official of a police force or service of an Australian jurisdiction and it is published to the official while the official is acting in an official capacity; …

The aim here is to ensure that victims of crime (and, in particular, victims of sexual crime) will be immune from defamation lawsuits for reporting crimes to the police. The Attorney-General, Jaclyn Symes, said:

We know how hard it can be for victim-survivors to report what happened to them – these reforms remove some of the barriers they face in their bravery by coming forward. With these changes, we’re making sure our justice system responds better to serious offending like family violence and sexual assault and is more accessible to all Victorians.

Defamation laws can have a chilling effect on reporting sexual abuse or harassment, with some victim-survivors not reporting the crime due to fear of being subjected to potential defamation proceedings. Plainly there is, at present, a qualified privilege here; but this strengthens the privilege into an effective immunity. And it is a development that could, with profit, be easily incorporated into the Bill.

5.2 The Jurisdiction of the Circuit Court
Many of the problems which the Bill addresses stem from the fact that defamation cases are usually commenced in the High Court; so moving such cases to the Circuit Court in the first instance would go a long way (if not necessarily all the way) toward dealing with those problems. Most of the problems arising out of inconsistent, disproportionate and unpredictable damages would be minimised by limiting damages to the Circuit Court jurisdiction of €75,000. Circuit Court cases, by and large, are less costly, come on more quickly, are less complex, and shorter, than High Court cases. SLAPPs take advantage of these problems in the High Court, so moving defamation cases to the Circuit Court would make SLAPPs far less attractive. And, since there is no jury in Circuit Court defamation cases, moving defamation cases to the Circuit Court would effectively remove juries from the equation. In a previous post, I proposed a draft section to accomplish just such a move. In a later post, I will have occasion to revise that draft in the light of the text of the Bill. For the present, it is sufficient to say that this is a development that could, with profit, be easily incorporated into the Bill.

If defamation cases are to be commenced in the Circuit Court, it may be tempting to increase the damages jurisdiction from €75,000. But that temptation should be resisted, because a plaintiff who wants more than that can still apply to the court to transfer the case to the High Court, where it is in the interests of justice to do so. Hence, if defamation cases were to be routinely commenced in the Circuit Court rather than the High Court, then, at a stroke, the problems with Ireland’s current defamation regime associated with the fact that cases are usually taken in the High Court would disappear. Of course, the Bill has specific solutions to these various problems as well; and those specific these solutions, in combination with the move to the Circuit Court, would go a very long way to achieving meaningful improvements in our defamation regime. The Taoiseach, when he was acting Minister for Justice, published the 2023 Heads, with an objective of stopping our defamation laws from acting as a “rich man’s law“. Routinely commencing defamation cases in the Circuit Court would go a very long way towards meeting that objective.

As we have seen, one of the specific solutions introduced by the Bill is the abolition of juries from High Court defamation actions. Given the controversy generated by this proposal, amendments to it cannot be excluded. If the Bill were to be amended to retain juries, to some limited extent, in the High court, then the ability to seek a jury trial might very well be one of the reasons why it could, in an individual case, be in the interests of justice to transfer the matter from the Circuit Court to the High Court. Then, once the matter had been transferred from the Circuit Court, one or other or both of the parties could apply to the High Court for a jury trial, however limited the role of the jury would be. The practical upshot of all of this would be to make a High Court defamation jury trial a very rare beast indeed, but it would not be entirely extinct.

I wish I’d thought of these points earlier; but, as I said about the Bill itself, better late than never, I hope.


6. Conclusion
These are immediate comments. There is a great deal more to be said about these issues, and about the rest of the Bill, and doubtless I shall say it extensively in subsequent posts on this blog. My initial view, however, is that, after a long gestation, this Bill delivers far less that had been promised in the Report and the Heads. Although some of its provisions are genuinely welcome, it is overall very disappointing indeed.

Meanwhile, there’s not a great deal of time left in which to pass the Bill, let alone to amend it to address some of its biggest dissappointments. A general election is imminent, whether as early as mid-November, or as late as March 2025. With more than half an eye on the earlier date, the Tánaiste, Micheál Martin, said that if the government can get “reasonable cooperation” from the opposition, then the Bill can get passed “in the Autumn Session” (Irish Independent: report | video). However, in his next breath, he described Sinn Féin, the biggest opposition party, as “serial” defamation plaintiffs, so I doubt that there will be much support from that quarter.

Even if matters proceed quickly, there is still a little – if only a little – leeway in which to make some amendments – including, if all goes well, some at least along the lines sketched here. The Minister said last week that she will bring Government amendments during the Bill’s passage through the Oireachtas, in particular to Committee Stage in the Dáil. So the text of the Bill is not set in stone, and there will be some small opportunity to amend it.

The process of the review of the Defamation Act 2009 that has led to this Bill began in November 2016, more than seven and a half years ago. Better late than never, as the Canon’s Yeoman says in the Canterbury Tales (above). The Canon is an alchemist and a scoundrel who swindles a priest out of forty pounds. This is the last straw for the Yeoman, who, after seven years with the Canon, repents of that “slippery science” (732), “dangerous business” (742) and “cursed craft” (830). He advises those who seek to transmute base metals into gold, to let it go, even late, because “late is better than never” (1409-1412). The Department has taken seven and a half years to the Yeoman’s seven. But we finally have the Bill; it’s late, but “late is better than never”. Let’s hope it’s enacted before the general election, lest all that work be set at naught.