Introduction
Yesterday, the Dáil took the Second Stage of the Defamation (Amendment) Bill, 2024 (Irish Times). It was introduced by James Browne, Minister of State in the Department of Justice. He said that this is “robust, fair and proportionate legislation, that is, a modernising defamation Bill well-suited to meet the challenges of a rapidly evolving communications landscape”, and he hoped for a swift passage through the House with a view to the early enactment of the Bill.

There were substantial contributions from Deputies Pa Daly (SF, Kerry), Ruairí Ó Murchú (SF, Louth), Brendan Howlin (Labour, Wexford), Jim O’Callaghan (FF, Dublin Bay South), Catherine Murphy (SD, Kildare North), Richard Boyd Barrett (PBP, Dún Laoghaire), Catherine Connolly (Ind, Galway West), and Thomas Pringle (Ind, Donegal). The main issues in the debate concerned the evergreen issues of the abolition of juries in the High Court, and restraints upon strategic lawsuits against public participation (SLAPPs). As much as there was universal welcome for SLAPPs, there was equally universal condemnation of the abolition of juries. And there was some disquiet with the absence from the Bill of any provisions relating to social media companies.

Juries
The Minister said that the abolition of juries in High Court defamation cases is a key reform under this Bill. On the other hand, Deputy Daly said that this is a disappointing development, not least because the size of jury awards can be obviated by a judge ruling on the quantum of damages. He continued that, as matters of defamation concern good name, “a jury of one’s peers should be entrusted with weighing the balance of rights and harms”. Deputy Ó Murchú agreed. Deputy Howlin noted that the European Court of Human Rights had “confirmed that jury trials are an entirely legitimate way to assess defamation cases and that it was not its task to call into question that national legislative choice to retain and have juries make these decisions”; presumably this is a reference to Independent Newspapers (Ireland) Limited v Ireland 28199/15, [2017] ECHR 567 (15 June 2017). He said that the Department’s Report of the Review of the Defamation Act 2009 (2022) had, in this respect, had been overtake by the subsequent decision of the Supreme Court in Higgins v Irish Aviation Authority [2022] IESC 13 (07 March 2022). That decision classified general damages in defamation cases as falling into four general categories, and meant, in his view, that the Bill is “simply out of date”. He concluded that the Oireachtas “should not rush into this particular reform, namely, the abolition of juries, when the latest reforming judgments have yet to be truly embedded in our system and to be truly assessed”.

Deputy O’Callaghan characterised the decision to abolish juries in the High Court as “short-sighted”. He said that juries are a lot more in tune with the value of money than judges on their own would be having to decide the issue of damages. On this issue, Deputy Connolly added that the proposal to abolish the jury, “on spurious grounds for which there is no evidence, is particularly worrying”. Deputy Murphy also opposed the abolition of juries as the wrong lesson to be drawn from the experience with the Defamation Act, 2013 in England. Deputy Boyd Barrett said the attempt to remove the right to a jury in High Court “strikes at the heart of democracy … Defamation is precisely about, among other things, how people are perceived by society. The Bill replaces that representative sample of society with a single individual”. Consequently, Deputy Pringle invited the Minister “even at this late stage, to withdraw the Parts in respect of the abolition to juries to allow this Bill to go through properly”. For him, the restoration and vindication of reputation “is much more valuable when it is done by fellow citizens than by a professional judge”.

In reply, the Minster said:

Most Deputies raised the issue of juries. Many people are attached to retaining juries in defamation cases. It is important for the public to know the juries were abolished in almost all civil cases a long time ago and were only kept in a very small number of areas. With regard to defamation, they were abolished in 2009 in Circuit Court cases. Therefore, there is a very tiny number of areas in civil law in which juries are still held. Our proposal is to get rid of them in the case of defamation.

On this issue, Deputy Connolly reminded the House that the Joint Oireachtas Committee on Justice, in their Report on Pre-Legislative Scrutiny of the General Scheme of the Defamation (Amendment) Bill (pdf) recommended that the proposal to abolish juries in High Court defamation actions “should be removed” from the Bill. In reply, the Minster said that “it would be deeply undemocratic for a government to blindly accept the recommendations of an Oireachtas committee”. Conversely, it would be just as undemocratic for a government to ignore the recommendations of an Oireachtas committee simply because they were the recommendations of such a committee.

SLAPPs
The Minister said that strategic lawsuits against public participation (SLAPPs) are a significant challenge to press freedom and a danger to democracy itself. To meet that challenge, he explained that the Bill will transpose the EU anti-SLAPP Directive (Directive (EU) 2024/1069 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’) (OJ L, 2024/1069, 16.4.2024)) into Irish law. And he said said that further changes to be included during passage of Bill will include include a power for the courts to award damages for harm suffered by a person targeted by SLAPP proceedings.

Deputy Howlin broadly welcomed the implementation of the anti-SLAPP directive, as did Deputy Connolly. Deputy Pringle said the anti-SLAPPs provision “is one positive that comes out of this legislation”. In that context, Deputy O’Callaghan noted a significant increase in the frequency of politicians instituting defamation proceedings in the past four or five years. This pointed political aside was the only hint in the debate that an election is imminent, and it predictably made the headlines.

Social Media
Deputy Ó Murchú bemoaned the absence from the Bill of anything to hold social media companies to account. So did Deputy O’Callaghan. Deputy Murphy also agreed that there are serious challenges relating to the behaviour of social media companies, as did Deputy Boyd Barrett. In reply, the Minster pointed to the regulation of social media companies under the Online Safety and Media Regulation Act 2022 and the Digital Services Act 2024.

Conclusion
The Minister said that further changes to be included during passage of Bill will include a clearer and simpler defence of fair and reasonable publication in the public interest. The absence from the Bill of any reform of that defence was one of my major misgivings about the Bill. The defence needs major simplification, and I look forward to the Minister’s amendments in due course. I am, however, concerned that such an important issue will be dealt with in short compass, without the opportunity for full consideration and debate. Nevertheless, as seems to be the case with a lot of aspects of this Bill, when it arrives, it will be better late than never. In his concluding remarks, the Minster said that it is fairly balanced legislation, much needed to reform current defamation laws, and he commended it to the House. The Bill was then referred to the Select Committee on Justice, for section-by-section analysis, when many of the above points will, no doubt, be rehashed.