by Mariam Maroof
Ireland witnessed a landmark change in the defamation law on the 28th of March that welcomed significant reforms. The amended Defamation Act of 2023 has been approved by the Cabinet, with the hope to bring improvement to a law that is considered the strictest in Europe.
The draft legislation, proposed by Minister for Justice, Simon Harris, targeted key issues within the law that posed great difficulty to working journalists.
Among the most significant improvements that have been welcomed by journalists is the removal of juries from High Court defamation actions.
Eavan Murphy, a full-time lecturer in law at TU Dublin discussed the difficulties surrounding the presence of juries in cases of defamation. According to Murphy: “The difficulty of having juries in these cases was that judges could not give any real direction, as the juries would have to decide whether there was defamation and if there was, then the level of damages to those defamed would be decided. The level of damages is what the concern has been about.”
“There have been cases where damages have gone up to a million and up to 10 million in others. While these have been reduced on appeal, it’s the level of damages that got juries a bad reputation. In these cases, judges’ hands have been somewhat tied because they couldn’t really give a quantification and say, ‘this is worth X and that is worth Y.’ Overall, it made the jury system very unpredictable,” says Murphy.
Robert Cox, Editor of the Irish Mail on Sunday, and a lecturer at TU Dublin, is happy with the new ruling. “We were involved the discussion of the changes that went into the review,” he says. “The biggest was to get rid of juries and this was designed so that judges would be able to distinguish between arguments as juries tend to be pursued by the emotions of those allegedly defamed. However, there are cases that we know we’re right, and the complaints only come through because they know they can threaten you. Their perspective isn’t backed up by documents, but it might be a case that the jury might see their perspective more than the actual truth of the situation.”
According to Cox, abolishing juries was a priority for news brands for many years. He believes that this move will award more power to judges, whilst also holding them to account.
Among other changes, the new act also gives stronger defences to cases of accidental defamation in live broadcasting situations, as well as in the reasonable and fair publication on matters of public interest.
Cox said, “We only ever do investigative pieces on matters of public interest and if we get a small mistake and it’s an honest mistake, we ensure to do our part and apologise or mediate. While we hold our reporting to high standards and defend it as well, we are mindful and deal with these issues in the right way. I think there is a real need to recognise that in legislation and that is finally happening.”
Along with that, solicitors will now also be required to inform clients about alternate dispute resolution options. According to a press release published by the Department of Justice, the options include ‘mediation before issuing defamation proceedings, and obliging parties to have considered those options.’
With this reform, the hope is that fewer cases will end up in court and in turn, reduce time, money and effort spent by news organisations defending their reporting. However, things are still not completely sorted for journalists.
“It takes time away from finding the next story or following up on the same one,” says Cox. “Because of issues like declining revenue, we are incentivised to settle cases that we don’t necessarily want to settle. If we were to take on cases and lose, that would be a significant hit. While I say this, it’s important to note that we still defend our cases, and we don’t settle every case. We’re willing to defend but, more and more people are aware that newspapers are in a tricky situation as far as current defamation laws stand.”
“A large part of my time as an editor is devoted to dealing with legal issues. We are also dedicated to ensuring we have proper editorial discussions related to any public interest stuff that we do. If we do something wrong, we offer to correct it quickly – mistakes do happen.”
As for what the new act means for journalism in Ireland, Murphy says it will make a difference. “It’s definitely an improvement on what existed once as the previous Defamation Act of 2009 didn’t really take into account a lot of important elements of the defamation law.”
There is now more hope and confidence among Irish journalists. Cox concludes that the Defamation Act of 2023 “gives more strength to our legal position to say no, and that we stand by our reporting.”