Defamation reform will protect responsible journalism and uphold your right to a good name

The passing of the Defamation (Amendment) Bill completed its second stage recently in the Dáil. This legislation is central to the protection of our democracy. It introduces innovative measures to safeguard responsible public interest journalism, vital to our democratic society, and our citizens’ right to their good name.

It will significantly reform our defamation laws, ensuring that these are fit for the 21st century. Its main purpose is to tackle disproportionate awards in defamation cases and to support more consistent and balanced redress.

The legislation is informed by best practice in other comparable jurisdictions, such as Canada and Australia, as well as by the extensive body of case law of the European Court of Human Rights on the right to freedom of expression. It also takes into account recommendations of the report of a major review of the Defamation Act 2009, carried out by the Department of Justice.

It will make it easier for people whose reputations are unfairly attacked in the media to access justice. It ensures that if a person is defamed, they will receive a rapid apology, as well as a correction, which must be published by the media outlet with “the same or similar prominence” as the defamatory publication.

It also addresses online defamation by introducing a statutory power for the Circuit Court to direct an online platform to provide information identifying an anonymous person posting a defamatory statement.

This person can then be served with defamation proceedings. The court will also have the power to order the platform to take down the defamatory statement.

These identification and takedown orders are currently issued by the High Court only. If application can be made to the Circuit Court, it will be significantly less costly and more accessible for a defamed person.

Importantly, this legislation will enhance protection for responsible public-interest journalism and shield our newspapers from strategic lawsuits against public participation (SLAPPs), which are taken by individuals in Irish public life to intimidate journalists and quash negative press.

Our newspapers are the lifeblood of Irish democracy, and in drafting this legislation I was very conscious of the chilling effect that powerful individuals and companies can have on newspapers by attempting to obstruct journalists who are reporting, in the public interest, on their activities.

I want to be clear: the aim of SLAPP proceedings is not to genuinely vindicate rights, but to maximise high legal costs, delays and stress in order to threaten and silence journalists. That is why I am directly combating SLAPPs through targeted new measures.

For example, the bill provides that a defendant should notify the courts if they believe that the defamation proceedings issued against them are a SLAPP. This will facilitate accelerated treatment of the case.

I am conscious that the public may have queries regarding the removal of juries from High Court defamation cases, as provided for in the bill. I understand the concerns; people may feel that juries are more in touch with community values and are, therefore, best placed to decide on how a particular statement would affect someone’s good name, as well as the financial compensation that person should be awarded.

However, after much careful consideration, my colleagues and I concluded that the retention of juries would do more harm than good.

There is clear evidence that jury awards are too often unpredictable and have resulted in disproportionate sums being awarded to complainants. Payments into the millions of euro have been awarded in damages by juries against media outlets; these payments are enough to cripple a newspaper.

I firmly believe that, faced with a pandemic of disinformation, legislators must do what we can to support independent media and to ensure that our newspapers are protected from strategic defamation cases taken to shut them down.

It should be noted that juries have already been abolished for almost all types of civil cases since the passing of the Courts Act 1988. It is only in a very small minority of civil cases, mainly High Court defamation cases, that juries are still used.

It’s also worth noting that there have been no reports of any negative effects from the removal of juries in circuit court defamation cases in 2009.

Furthermore, the removal of juries will significantly reduce the legal costs and the length of defamation hearings, and provide greater clarity on the law, thus ensuring that those who have been wrongly defamed will receive a quicker remedy with less stress and uncertainty.

High-quality, independent journalism and a pluralistic media is vital for a healthy democracy. As minister of state for with responsibility for international law, law reform and youth justice, I am determined to do everything I can to safeguard Ireland’s independent media.

I am certain the Defamation (Amendment) Bill protects defamed persons and our media sector. It balances the right to freedom of expression with the right to good name and reputation.

It is my intention to finalise the legislation in the coming months. As the bill continues to progress through the Dáil, I am calling on all TDs to support it.

James Browne is minister of state at the ­Department of Justice