Part 2 of the Defamation (Amendment) Bill 2024 contains section 3, as follows:
PART 2 AMENDMENT OF SECTION 2 OF PRINCIPAL ACT Amendment of section 2 of Principal Act
3. Section 2 of the Principal Act is amended-
(a) by the insertion of the following definition:
“‘Act of 2015’ means the Legal Services Regulation Act 2015;”,
(b) by the substitution of the following definition for the definition of “periodical”:
“‘periodical’ means—
(a) any newspaper, magazine, journal or other publication that is printed, published or issued, or that circulates, in the State at regular or substantially regular intervals and includes any version thereof published on the internet or by other electronic means, or
(b) any newspaper, magazine, journal or other publication that is published or issued, or that circulates, only on the internet or by other electronic means at regular or substantially regular intervals—
(i) by a publisher who is established in the State, or
(ii) the publication of which is specifically targeted at the general public, or a section of the general public, in the State;”,and
(c) by the deletion of the definition of “summary relief”.
This section does three things. First, it inserts a reference to the Legal Services Regulation Act 2015 (the 2015 Act) into the Defamation Act 2009. Second, it extends the remit of the Press Council to cover online-only publications. Third, it deletes the definition of “summary relief” from section 2 of the 2009 Act. The first and third things are straightforward, but the second one raises many questions about how to encourage all eligible periodicals to join the Press Council.
First, section 3 of the Bill inserts a reference to the 2015 into the 2009 Act to provide for a rule about the parties’ costs in the context of their conduct after an offer of amends has been made. Sections 168 and 169 of the 2015 Act relate to costs, whilst section 23 of the 2009 Act relates to the effect of an offer to make amends. Sections 168 and 169 of the 2015 Act substantially codify the common law principles concerning the courts’ powers relating to costs in civil proceedings (Word Perfect Translation v Minister for Public Expenditure & Reform (No 2) [2021] IESC 19 (24 March 2021) [4.2] (Clarke CJ; O’Donnell, MacMenamin, Dunne and O’Malley JJ concurring); in particular, section 169 provides for the traditional rule that costs follow the event. Section 10 of the Bill amends section 23 of the 2009 Act to ensure that, in making an order as to costs in a defamation action, in addition to the matters provided for in section 169(1) of the 2015 Act, the court must also take into account the conduct of the parties subsequent to the making of an offer of amends. I will return to this when I discuss section 10 of the Bill.
Second, section 3 of the Bill extends the remit of the Press Council to cover online publications. Schedule 2 to the Act sets out the minimum requirements such a body must meet to be so recognised. In 2007 – long before the enactment of 2009 Act – the Irish media established a Press Council of Ireland and the Office of the Press Ombudsman, and they started dealing with complaints from 2 January 2008 (Annual Report 2008 (pdf) pp3, 28). After the 2009 Act came into force on 1 January 2010, the Press Council was duly recognised by the Minister (see Defamation Act 2009 (Press Council) Order 2010 (SI No 163 of 2010)). In 2007, as the Press Council system was being established, I wondered: What if Wired were Published in Ireland?:
If Wired magazine were published in Ireland, would it be a periodical? Would its website be? Would the website be, even if there weren’t a magazine? And why do these musings matter? Well, they matter because only ‘periodicals’ will be subject to the Press Council proposed in the Defamation Bill, 2006; and whilst the defintion of periodical clearly covers print newspapers and magazines (such as Wired‘s offline edition), and probably covers content on websites associated with such offline editions, it probably doesn’t cover content published exclusively online by publications that look like newspapers or magazines but lack an offline edition … [such as] the many fine exclusively online publications in Ireland and elsewhere – not merely blogs and websites, but sites that look like newspapers (such as BreakingNews.ie) and magazines (such as Silicon Republic), but without the offline cat-litter or chip-wrapper. …
Notwithstanding these arguments, the definition in the 2009 Act of the kinds of “periodical” which could become members of the Press Council was that in the first half of the definition of “periodical” above. It did not encompass exclusively online publications. Hence, in its early stages, the Council did not expect membership applications from exclusively online publications. However, this soon changed. For example, speaking at the launch of the Annual Report for 2010 (pdf) the then-Chair of the Press Council said that “at least one web-based news organisation has already been accepted as one of the recent new member publications of the Council”. The following year, the Chair opened his report by identifying “the emergence of new media such as web-based news and information platforms” as a significant challenge to the press industry in general and to the Council in particular (Annual Report 2011 (pdf) p3). And, in his report for 2013, he identified, as a development of major significance, “the decision of the Council to accept, during the past year, the application of TheJournal.ie for membership of the Council” (Annual Report 2013 (pdf) p3). Hence, in its list of member publications, that year’s Annual Report (pdf) (p27) added the new category of “Web-based Publications”, though the TheJournal.ie was the only publication listed under that heading. The most recent Annual Report lists 35 online-only publications as members of the Press Council (Annual Report 2022 (pdf) pp23-24); as of today’s date, the Press Council website lists 36 online-only publications; on both lists, the TheJournal.ie is still among their number. The Press Ombudsman upheld a complaint against a web-based publication for the first time in 2016 (Annual Report 2016 (pdf) p12): on 23 June 2016, he upheld a complaint against Evoke.ie. And, in the most recent Annual Report, of the 260 publications leading to a complaint to the Press Ombudsman, 24 were from online-only publications (Annual Report 2022 (pdf) p6).
It is clear that online-only publications are an important part of the membership of the Press Council, and that considering complaints against such publications is an increasing part of the workload of the Press Ombudsman. In their submission to the Review of the 2009 Act, the Press Council sought legislative support for these developments:
… since the implementation of the Defamation Act 2009 the number of online-only publications has grown considerably. If the Press Council is to remain relevant and to fulfil its remit it is important that it recruits as member publications of the Press Council new online-only publications. The Press Council is concerned that the Defamation Act should reflect such changes in the media landscape by unambiguously recognising the rights of online-only publications to join the Press Council and, in so doing, offering them such protections as are provided by the Act to media outlets in defending defamation suits. This recognition would also serve the public as it would allow any grievances about something published in online-only publications to be addressed if the online-only publisher is a member of the Press Council of Ireland. …
It is unclear if the definition of “periodical” in the Act includes in its scope online-only news publications (some of which are currently members of the Press Council) or the online news sites of print newspapers. The definition should be amended to address any possible anomaly in what type of publications can be members of the Press Council. … As an increasing amount of journalism migrates from print and broadcasting to online it is important that the relevance of the Press Council be protected and enhanced. …
The second half of the definition of “periodical” above will address these concerns, by expanding the definition in the 2009 Act of the kinds of “periodical” which can become members of the Press Council to include exclusively online publications. There is no reason why this could not have been done in 2009, but (as is a theme of my commentary on the Bill) better late than never.
The legislative carrot for membership of the Press Council is that it counts in a periodical’s favour in the application of the defence of fair and reasonable publication on a matter of public interest (see section 26(2)(f)-(g)). In their submission to the Review of the 2009 Act, the Press Council suggested that this section be amended and strengthened to encourage all eligible periodicals to join the Press Council:
The Press Council would welcome any amendment to section 26 which would encourage members of the public to engage in its complaints handling processes and encourage publishers to sign up to the Code of Practice by becoming a member of the Press Council. This is particularly important as more and more journalism is moving from print to digital publication. The Press Council recommends an amendment to the Act to include the requirement that in considering the scale of damages for defamation account must be taken in mitigation, where the defendant is a member of the Press Council, of the record of the publisher’s adherence to the Code of Practice of the Press Council and the decisions of the Press Ombudsman. Account should also be taken of whether the plaintiff sought redress through the Press Council before initiating legal proceedings.
I will return to this when I discuss the failure of the Bill to amend section 26 of the Act of 2009; for now, it is sufficient to note, with regret, that no such strengthening was included in the Bill. In the UK, the Leveson Inquiry into the culture, practices and ethics of the press suggested that a scheme similar to the Irish Press Council should be established there (for a brief history of press regulation in the UK, see, eg, Report on Press Intrusion and Regulation (Press Recognition Panel, 2024) pp7-23). To encourage participation in that scheme, Leveson made suggestions relating to the courts’ powers to award exemplary damages and to make costs orders. And these suggestions would work equally well in the Irish context.
As to damages, in volume 4 (pdf) of his Report, Leveson recommended
[5.12] … that exemplary damages (whether so described or renamed as punitive damages) should be available in actions for breach of privacy, breach of confidence and similar media torts as well as for libel and slander. Voluntary participation in a regulatory regime contained in or recognised by statute and good internal governance in relation to the sourcing of stories should be relevant to the decisions reached in relation to such damages.
Hence, sections 34, 35 and 36 of the UK’s Crime and Courts Act 2013 (the UK’s 2013 Act) provides that exemplary damages may be available in defamation and related claims. However, section 34(2) provides that exemplary damages
may not be awarded against the defendant in respect of the claim if the defendant was a member of an approved regulator at the material time.
Section 34(3) provides various circumstances in which the court may disregard section 34(2); and section 35(3) provides that, in making an award of exemplary damages, the court must take account of
(a) whether membership of an approved regulator was available to the defendant at the material time;
(b) if such membership was available, the reasons for the defendant not being a member;
(c) so far as relevant in the case of the conduct complained of, whether internal compliance procedures of a satisfactory nature were in place and, if so, the extent to which they were adhered to in that case.
In Ireland, section 32(2) of the 2009 Act provides that, in a defamation action, the court may “order the defendant to pay to the plaintiff damages (in this section referred to as “punitive damages”) of such amount as it considers appropriate”. Irish legislation equiperates “exemplary” and “punitive” damages, and uses the terms interchangeably (McIntyre v Lewis [1991] 1 IR 121, [1990] IESC 5 (17 December 1990), including in the defamation context (Crofter Properties Ltd v Genport Ltd [2005] IESC 20 (12 April 2005)). Where UK’s 2013 Act refers to “exemplary” damages, and the Irish 2009 Act refers to “punitive” damages, they are referring to the same concept. It would not be difficult for a new section of the Bill to amend 34 of the 2009 Act to include provisions having similar effect to those in sections 34(2) and 35(3) of the UK’s 2013 Act (substituting the Irish usage of “punitive” damages in place of the UK usage of “exemplary” damages), perhaps as follows:
Section 32 of the Principal Act is amended by the insertion of the following subsections:-
“(4) Notwithstanding subsection (2), the court in a defamation action may not award punitive damages in respect of a statement published in a periodical by a person who, at the time of publication, was a member of the Press Council.
(5) In making an award of punitive damages pursuant to subsection (2) in respect of a statement published in a periodical by a person who was not a member of the Press Council, the court in a defamation action shall take into account
(a) whether membership of the Press Council was available to that person at the time of publication;
(b) if such membership was available, the reasons for that person not being a member; and
(c) whether that person adhered to standards equivalent to the code of standards of the Press Council.”
The language of this draft is modelled on section 26(2)(f)-(g) of the 2009 Act as well sections 34(2) and 35(3) of the UK’s 2013 Act (above).
As to costs, in the same volume (pdf) of his Report, Leveson recommended
[6.7] If an arbitral mechanism was set up through the regulator, however, I see no reason why the courts should not embrace it as an extremely sensible method of pursuing the overriding objective in civil cases. In those circumstances, costs consequences could flow both ways. Thus, if the relevant media entity was regulated and thus able to utilise the availability of the arbitration service, it would be strongly arguable that a claimant who did not avail himself of that cheap and effective method of resolving his dispute but, instead, insisted on full blown High Court litigation, should be deprived of any costs even if he is successful: that might also be a powerful incentive for a publisher to join the regulator, particularly if concerned that an extremely wealthy claimant might otherwise seek to overwhelm the publisher with expensive litigation out of all proportion to what was at stake.
The laudable intention here is to encourage those who complain that their rights have been infringed to use an arbitral system set up by an independent regulator as a speedy, effective and comparatively inexpensive method of resolving disputes (ibid, [6.9]), but this recommendation was not implemented in the UK’s 2013 Act. However, there is something similar in section 18 of the Bill; it inserts a new Part 4B into the 2009 Act, to encourage the parties to engage in alternative dispute resolution (ADR); and section 34L of the 2009 Act would, in certain circumstances, permit the court to take into account when awarding costs whether a party had unreasonably refused to engage with specified ADR procedures such as those provided by the Press Council. I will return to this point when I discuss that section of Bill. Leveson continued:
[6.8] Equally, however, if a publisher did not join the regulator, with the result that the specialist arbitral system was not available to a claimant wishing to pursue a remedy (particularly if of limited means and, thus, unable otherwise to obtain access to justice), I see no reason why the court should not be able to deprive even the successful publisher of costs that would not have been incurred had the alternative arbitration been available. I go further and suggest that, in a case legitimately brought and potentially borderline, the court would even retain the discretion to order the successful publisher to meet the costs of an unsuccessful claimant (although I recognise that this would not be the case if the court was dealing with vexatious or utterly misconceived litigation). Ultimately, the discretion of the court would govern all these issues, but I see only advantage in supporting an arbitral system that could be seen to have been independently set up and operated by a regulator, albeit itself set up by the press but managed and run independently of it.
The laudable intention here is to encourage every publisher to join an independent regulator (ibid, [6.9]), and this recommendation was implemented by section 40 of the UK’s 2013 Act:
(2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that—
(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator, or
(b) it is just and equitable in all the circumstances of the case to award costs against the defendant.(3) If the defendant was not a member of an approved regulator at the time when the claim was commenced (but would have been able to be a member at that time and it would have been reasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the defendant unless satisfied that—
(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or
(b) it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.
This section was never commenced, and has been repealed by section 50(2) of the Media Act 2024. Nevertheless, at the time, I thought that this costs penalty was an idea that the Irish system could, with profit, adopt, but there is no equivalent in the Bill. However, as we have seen, the Bill addresses costs in two other contexts already, so there is no reason in principle why it cannot address costs in this context too. First, section 23 of the 2009 Act as amended by section 10 of the Bill would permit the court to reflect in costs the conduct of the parties after an offer of amends has been made; and, second, section 34L of the 2009 Act as inserted by section 18 of the Bill would permit the court to impose a costs penalty on a plaintiff who had unreasonably refused to engage with the Press Council. Having regard to these two innovations in respect of costs orders, there would seem to be no reason in principle why the Bill could not also amend the 2009 Act to ensure that, in making an order as to costs in a defamation action, the court must also take into account whether or not the defendant was a member of the Press Council. In particular, it would not be difficult for a new section of the Bill to amend section 44 of the 2009 Act relating to the Press Council, to include provisions having similar effect to those in section 40 of the UK’s 2013 Act, perhaps as follows:
Section 44 of the Principal Act is amended by the insertion of the following subsection:—
“(8) In addition to having regard to the matters provided for in section 169(1) of the Act of 2015,
(a) in the case of a statement published in a periodical by a person who, at the time of publication, was a member of the Press Council, a court considering the making of an order as to costs in a defamation action shall have regard to the extent to which the person adhered to the code of standards of the Press Council and abided by determinations of the Press Ombudsman and determinations of the Press Council; and
(b) in the case of a statement published in a periodical by a person who, at the time of publication, was not a member of the Press Council, a court considering the making of an order as to costs in a defamation action shall have regard to the extent to which the publisher of the periodical adhered to standards equivalent to the standards specified in paragraph (a).”
The language of this draft is modelled on section 10 of the Bill, section 26(2)(f)-(g) of the 2009 Act, and section 40 the UK’s 2013 Act.
Finally, the third thing that section 3 of the Bill does is to delete the definition of “summary relief” from section 2 of the 2009 Act. Section 34 of the 2009 Act concerns the summary disposal of actions; section 16 of the Bill revises this process and incorporates this definition into section 34; and section 3 therefore deletes it rom section 2 of the 2009 Act. I will return to this when I discuss section 16, and nothing more need be said at this point.
In section 3 of the Bill, the reference to the Legal Services Regulation Act 2015 to enable a rule as to costs in the context of an offer of amends, and the deletion of the definition of “summary relief” from section 2 of the 2009 Act, are straightforward. But the extension of the definition of “periodical” to confirm that online-only publications may become members of the Press Council raises many questions about how to encourage the utilisation of the Press Council and Press Ombudsman procedures. It is suggested above that taking the possibility of awards of punitive damages off the table in respect of statements published by defamation defendants that are members of the Press Council, and potential costs penalties for defamation defendants who are not members of the Press Council, would together go a long way towards encouraging potential periodicals to become members of the Press Council.