REVIEW OF THE DEFAMATION ACT 2009

Public consultation: invitation for submissions

 

The Tánaiste and Minister for Justice and Equality is reviewing the operation of the Defamation Act 2009, following section 5 of that Act.

The Act can be viewed at:  http://www.irishstatutebook.ie/eli/2009/act/31/enacted/en/print

and at: http://www.irishstatutebook.ie/eli/isbc/2009_31.html   (updated text with information on amendments and secondary legislation up to 20 September 2016).

A key objective of defamation law in Ireland is to ensure effective protection for the right to good name and reputation guaranteed by Article 40.3.2 of the Constitution, while also ensuring due regard for the right to freedom of expression in a democratic society, contained at Article 40.6.1(i). The rights to freedom of expression under Article 10 of the European Convention on Human Rights, and to the protection of reputation under Article 8 of the Convention, are also relevant.   

The Defamation Act 2009 effected a substantial consolidation and reform of Irish defamation law, which sought to strike an appropriate and effective balance between the rights just mentioned. The aim of this review is:

- to promote an exchange of views and experiences regarding the operation in practice of the changes made by the 2009 Act,

- to review recent reforms of defamation law in other relevant jurisdictions,

- to examine whether Irish defamation law, and in particular the Defamation Act 2009, remains appropriate and effective for securing its objectives: including in the light of any relevant developments since 2009, 

- to explore and weigh the arguments (and evidence) for and against any proposed changes in Irish defamation law intended to better respond to its objectives, and

- to publish the outcomes of the review, with recommendations on appropriate follow-up measures.

The Department of Justice and Equality is now inviting contributions from members of the public to inform this review.  Organisations or individuals wishing to contribute should send a submission by 31 December 2016:

• by email to defamationactreview@justice.ie, or

• by post to:

Defamation Act Review,

Department of Justice and Equality

Bishop’s Square,

Redmond’s Hill,

Dublin 2.

 

It would be helpful for submissions to set out the reasons for the views expressed, and to provide any available evidence on the need for proposed changes, and on their likely impact. Respondents are welcome to propose draft text for legislative amendments to give effect to their proposals.

 

Scope of the review

Find here a summary of the main features of the Defamation Act 2009

The following is an indicative list of some specific issues which may be considered under the review:

• Whether any change should be made to the matters which a plaintiff or a defendant is required to prove in a defamation case,

• Whether any change should be made to the persons currently entitled to bring an action for defamation,

• Whether any change should be made to section 12 (which provides that a body corporate may bring an action for defamation, whether or not it would incur financial loss as a result of the statement it claims to be defamatory),

• The experience regarding the jurisdiction of the Circuit Court in defamation cases,

• Whether any change should be made to the respective roles of the judge and the jury in High Court defamation cases,

• Whether any change should be made to the level or type of damages which may be awarded in defamation cases, or to the factors to be taken into account in making that determination,

• Whether any change should be made to the defences of truth, absolute privilege, qualified privilege, honest opinion, fair and reasonable publication on a matter of public interest, and innocent publication, as defined by the Act,

• Whether the Act’s provisions are adequate and appropriate in the context of defamatory digital or online communications[1] ,

• The experience in practice regarding the Act’s provisions for an offer of amends, an apology, or lodgement of money in settlement,

• Whether the range of remedies (including interim, interlocutory and permanent orders) available under the Act is sufficient to provide accessible and effective redress for defamation,

• The experience regarding the operation of the Press Council (recognised under section 44 of the Act) and Press Ombudsman,

• Whether any further legislative or procedural measures should be taken with a view to encouraging the efficient, inexpensive and prompt resolution of defamation claims, reducing the need for court intervention, or otherwise increasing the accessibility or effectiveness in practice of defamation law for plaintiffs and defendants.

 

The above list of issues is not closed. Respondents may make submissions on these and on other aspects of defamation law, and are invited to propose, with reasons, any further issues which they consider should be encompassed by the review.

Please note however that this review excludes sections 36 and 37 of the Defamation Act (defining a statutory offence of blasphemy and providing for seizure of blasphemous material). The reason is that the relevant Constitutional and statutory provisions have already been considered by the Sixth Report of the Constitutional Convention, and will be the subject of a constitutional referendum, as provided in the Programme for a Partnership Government.

 

Publication of Submissions

The Department will publish any submissions received on its website in due course, and may also receive requests for their disclosure under the Freedom of Information Act 2014.

It is therefore in the interests of respondents to highlight at the time of submission any information which they consider to be commercially sensitive, or to contain private or confidential material, and to specify the reasons for its sensitivity. The Department will consult with respondents regarding information identified by them as sensitive, before making a decision on any Freedom of Information request, and will treat any personal information in accordance with the Data Protection Acts 1988 and 2003.

Published Submissions - A list of submissions received in relation to the review is available at the following link:  Review of the Defamation Act 2009 - Public consultation

Any queries about the contents of this notice may be sent by email to defamationactreview@justice.ie.

 

1 November 2016