INDIVIDUALS AND ORGANISATIONS being sued for defamation will be able to apply to have their case struck out if a court deems it to be a strategic lawsuit.
A major overhaul of the State’s defamation regime seeks to target so-called Strategic Lawsuits against Public Participation (SLAPPs).
Also included in the changes is the removal of juries from High Court defamation proceedings and a statutory defence for the retail sector.
The changes are part of the Defamation (Amendment) Bill, which was approved by Cabinet and is due to come before the Dáil in the autumn. The full text of the bill is expected to be published on the Oireachtas website next week.
SLAPPs occur where a plaintiff launches unfounded defamation proceedings against an individual or organisation in order to silence investigations, discussions, or debates.
Minister for Justice Helen McEntee said that they are “recognised internationally as a significant challenge to press freedom and democracy, given the chilling effect they have on the work of investigative journalists and others”.
The legislation will make it possible for a defamation case to be declared a SLAPP, allowing for the defendant to seek that it be struck out, and provide for an accelerated timeframe for the case. A defendant will be able to seek a declaration that a case is a SLAPP at any time.
It is understood that an amendment allowing the courts to award damages for harm suffered due to a SLAPP is to be presented in the future.
The removal of juries from High Court defamation proceedings is the other major change presented by the Bill.
Minister McEntee said that this was intended to “reduce the likelihood of disproportionate awards of damages, significantly reduce delays and legal costs, and reduce delays, legal costs, and the duration of hearings”.
It is understood that the level of damages being awarded by juries was consistently deemed to be too high, and tended to be reduced on appeal, leading to further legal costs and slowing down of judicial processes.
The decision as to how much damages will be awarded in cases will rest entirely with judges. It is understood that there will not be a cap placed on potential damages.
A provision to provide a defence for live broadcasters will also be introduced. This will allow a defence if the broadcaster can prove that proper precautions and actions were taken before and when a defamatory statement is made on air.
Examples include proper screening of guests before a broadcast so as not to feature an individual known to make defamatory statements on a topic, and immediately countering a defamatory statement and distancing the broadcaster from it while still on air.
These will be available to broadcasters as a separate defence, distinct from already existing provisions to mitigate damages.
Retailers
Retailers will also be to avail of the defence of “qualified privilege” to defamation proceedings, which is already present under the law, and applies when a statement is honestly made in good faith.
It will be available to retailers in instances such as, for example, when a person is stopped trying to walk past a checkout to leave a shop with goods, and asked to produce a receipt.
It is understood that the provision is being introduced in response to stakeholder concerns about a large increase recently in claims of verbal defamation against retail business, particularly small and medium businesses.
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