On 28 March 2023, the Minister for Justice published a Draft General Scheme of the Defamation (Amendment) Bill (the "General Scheme") which was forwarded to the Joint Committee on Justice (the "Joint Committee") for pre-legislative scrutiny. If the draft Bill is implemented in its current form, a number of changes will be made to the existing Defamation Act 2009.
Such reform will likely bring about welcome but dramatic change with the concept of juries, jurisdiction, and the defence of innocent publication being re-examined. In publishing the General Scheme the Minister for Justice stated that the proposed legislation would address the "challenges posed by an increasingly complex media landscape".
Defamation through online platforms
The anonymity often attached to information posted on social media platforms has proven problematic when it comes to defamatory statements. While the intermediaries processing the information have the ability to identify the authors of anonymous posts, such information is seldom disclosed in the absence of a Norwich Pharmacal order.
Norwich Pharmacal orders have the effect of obliging online service providers to disclose the identity of anonymous publishers. However, such orders are a court devised remedy and have not yet been provided for under legislation. Therefore, a Plaintiff can only be granted a Norwich Pharmacal order by the High Court which attracts substantial costs.
Head 33 of the General Scheme proposes that Plaintiffs be afforded the option to apply to either the Circuit or the High Court for a Norwich Pharmacal order. It is envisioned that this amendment would make it easier and more affordable for those who have been defamed online to uncover who to institute proceedings against.
In its recently published Report on Pre-Legislative Scrutiny of the General Scheme of the Defamation (Amendment) Bill the Joint Committee recommended that Head 33 be drafted in a manner which ensures that the provision of information by service providers is both necessary and proportionate. The report also cautioned about the potential for the Bill to place an undue burden on service providers which could be avoided if Head 33 specified exactly what types of data providers would have to produce.
Abolition of Juries in High Court Actions
The law as it currently stands is such that all High Court defamation actions carry an entitlement to a jury. Published in March 2022, the Department of Justice's Report of the Review of the Defamation Act 2009 argues that this is resulting in "excessive" and "disproportionate" awards. It further noted that if a judge alone were to decide the nature and level of redress, it would likely reduce the length of hearings and legal costs.
Head 3 of the General Scheme proposes that a defamation action in the High Court should not be tried with a jury. It is yet to be determined whether this amendment will be considered a step too far, particularly in light of the seminal Higgins v IAA decision in 2022 where the Supreme Court provided guidance on what constitutes appropriate damages in defamation cases. For publications resulting in what was defined as "very moderate defamation", the Court found that the appropriate range of compensation is €0 to €50,000. Meanwhile, for a publication which results in "very serious defamation" the damages awarded should fall between €200,000 and €300,000.
In its recently published report the Joint Committee agreed that the Higgins decision would provide assistance to jurors when assessing what level of damages should be awarded. Accordingly, the Joint Committee recommended that more time should be given to ascertain whether the impact of this decision would negate the need to remove juries from defamation trials.
Juries exist to protect an individual's right to natural justice and fair procedures and the importance of their function should not be downplayed. While safeguards should exist to ensure that the damages awarded to those who have been defamed remain reasonable, this could arguably be achieved without abolishing juries in defamation actions.
It remains to be seen whether the draft legislation will be enacted in its current guise, however it appears inevitable that the Defamation Act 2009 will be reformed in the near future and the proposed changes are likely to bring about positive reform.
