Defamation – cearta.ie

If Equity can develop new orders when necessary, can it develop anti-SLAPP orders? Part 2: SLAPPs, abuse of process, and anti-SLAPP injunctions

25 October, 202425 October, 2024

1. Introduction: strategic lawsuits against public participation
In an earlier post on this blog, I argued that Equity can develop new orders and injunctions when necessary, and that there was space for it to develop a new order or injunction to prevent strategic lawsuits against public participation (anti-SLAPP orders). There have been several subsequent developments which compel me to revisit that post and make good on my promise in it to return to the topic.

First, the jurisdiction to develop new equitable injunctions has continued to evolve. In Pepper Finance Corporation (Ireland) DAC v Persons Unknown [2023] IESC 21 (31 July 2023), the Supreme Court held that, in exceptional cases, proceedings may be issued against persons unknown. Once such proceedings were properly issued, Hogan J (O’Donnell CJ, and Dunne, Charleton and O’Malley JJ concurring) assumed that an injunction could be ordered against persons unknown, and he proceeded directly to a consideration of the procedural steps to enforce it by means of the contempt jurisdiction, untroubled by any discussion of the basis of this heretofore unspotted injunction. The jurisdiction to award injunctions against persons unknown had been considered by the Court of Appeal of England and Wales in Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303 (05 March 2020), which Hogan J cited with approval in Pepper Finance, so it may be that he felt that it was not necessary to revisit the question.…

The Second Stage of the Defamation (Amendment) Bill, 2024 in the Dáil

20 September, 202422 September, 2024

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| Defamation, Defamation, Defamation (Amendment) Bill 2024, Defamation Act 2009

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.…

Section 3 of the Defamation (Amendment) Bill – summary relief, costs, punitive damages, online-only publications, and encouraging all eligible periodicals to join the Press Council

2 September, 202431 October, 2024

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| Defamation, Defamation, Defamation (Amendment) Bill 2024

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.…

Sections 1 & 2 of the Defamation (Amendment) Bill 2024 – and background and comparative reading for analysis of the Bill

22 August, 202431 August, 2024

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| Defamation, Defamation, Defamation (Amendment) Bill 2024

The Defamation (Amendment) Bill 2024 begins as follows:

Bill

entitled

An Act to provide that defamation actions in the High Court shall not be tried with a jury; to give effect to Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’) in so far as it relates to defamation proceedings; for those and other purposes to amend the Defamation Act 2009; and to provide for related matters

Be it enacted by the Oireachtas as follows:

PART 1

PRELIMINARY AND GENERAL

Short title and commencement

1. (1) This Act may be cited as the Defamation (Amendment) Act 2024.

(2) This Act shall come into operation on such day or days as may be appointed by order or orders made by the Minister for Justice, either generally or by reference to any particular purpose or provision, and different days may be so appointed for different purposes or different provisions, including the insertion of section 34C into the Principal Act.

Definition

2. In this Act, “Principal Act” means the Defamation Act 2009.

As the Explanatory Memorandum explains, section 1 is a standard short title and commencement provision, and section 2 defines the “Principal Act” as the Defamation Act 2009 (also here) (the 2009 Act).…

Better late than never – the Defamation (Amendment) Bill 2024 is finally here

2 August, 202412 August, 2024

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| Defamation, Defamation, Defamation (Amendment) Bill 2024, Defamation Act 2009

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.…

Defamation cases should routinely be commenced in the Circuit Court and not the High Court, and the forthcoming Defamation (Amendment) Bill 2024 should be amended accordingly

25 July, 202430 July, 2024

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| Defamation, Defamation, Defamation (Amendment) Bill 2024, Defamation Act 2009

It is widely reported this morning that the Government has approved the publication of the long-awaited, much-delayed, and eagerly-anticipated Defamation (Amendment) Bill 2024 (see, eg, Catherine Sanz, Business Post | Cianan Brennan, Irish Examiner | Shane Phelan, Irish Independent | Brynmor Pattison, Irish Sun | Cormac McQuinn, Irish Times (here and here) | Orla O’Donnell, RTÉ | Steven Fox, TheJournal.ie).

It will deal with issues such as the abolition of juries, the control of strategic litigation against public participation (SLAPPs), live broadcasts, transient retail defamation, support for alternative resolution of defamation disputes, identifiability of anonymous online defamers, the prominence of corrections, and improvement of the defence of reasonable publication. A Government press release explains that

Minister for Justice Helen McEntee TD and Minister of State for Law Reform James Browne TD have received Government approval to publish the Defamation (Amendment) Bill 2024. The full text of the Bill will be published on the website of the Houses of the Oireachtas next week. …

Minister McEntee said:

Our democracy needs defamation laws that meet the challenges of an increasingly complex media landscape. The overarching aim of this Bill is to safeguard freedom of expression, the right to protection of good name and reputation, and the right of access to justice.

…

Identifiability in defamation, data protection, and privacy cases (updated)

3 October, 20234 October, 2023

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| Defamation, Defamation, Privacy, Privacy

In an earlier post, I considered the settlement in Carey v Independent News & Media and the status of Bloomberg v ZXC [2022] AC 1158, [2022] UKSC 5 (16 February 2022) in Ireland. According to media reports this time last week, a case similar to Carey may very well be brewing:

Sinn Féin TD takes breach of privacy action against Mediahuis and state (Barry Whyte, Business Post, 24 September 2023)
Martin Kenny also suing the gardaí and the state over a series of articles published last year which did not name him.

Sinn Féin TD sues An Garda Síochána, Independent titles publisher and State (Colm Keena, Irish Times, 24 September 2023)
Martin Kenny is taking breach of privacy case arising from news report that did not name him or his party.

It seems that the articles in respect of which he is suing contain a quote from An Garda Síochána about an ongoing investigation into an alleged criminal offence, that they say that there was a connection to a politician who was a member of an unnamed party, and that they made it clear that there was no suggestion that this politician was being accused of any wrongdoing.…

The next steps in defamation reform, including the development of an anti-SLAPP mechanism, limp slowly closer – updated

23 February, 20232 March, 2023

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| Defamation, Defamation, Defamation Act 2009

The written answer to two Parliamentary Questions earlier this week (on Tuesday 21 February 2023) provides hope for imminent publication of the long awaited the General Scheme of a Defamation (Amendment) Bill, including the introduction of an anti-SLAPP mechanism.

Deputy Catherine Murphy TD (pictured above left) asked the Minister for Justice if his Department has been engaging with the European Parliament in relation to the proposed directive on Strategic Lawsuits against Public Participation; and to detail what anti-SLAPP mechanisms his Department is considering for domestic legislation.

Deputy Patrick Costello TD (pictured above centre) asked the Minister for Justice the status of the proposed introduction of an anti-SLAPP mechanism in Irish law (details supplied), as committed to in May 2022; and if he will make a statement on the matter.

Minister for Justice Simon Harris TD (pictured above right) took both questions together and replied (links, and emphasis, added):

On 1st March 2022, the Government approved publication of the Report of the Review of the Defamation Act 2009 and the development of a General Scheme of a Defamation (Amendment) Bill on foot of the Report.

As the Deputy has noted, a key recommendation in the Report is to introduce a new ‘anti-SLAPP’ mechanism – referring to Strategic Lawsuits against Public Participation – to allow a person to apply to court for summary dismissal of proceedings that he/she believes are a SLAPP.

…