As the Deputy will be aware, my Department is currently engaging in a statutory review of the Defamation Act 2009 as required by section 5 of that Act. The review is an important priority for me and for my Department. I expect a draft report with options for reform to be submitted to me in the coming weeks. The review has undergone some delay, due to other urgent legislative priorities and also due to important judgments from the Supreme Court and the European Court of Human Rights in the intervening period since the announcement of the review. These judgments will be taken into account in the review.
The Review is addressing several issues that have been raised in submissions to the Review, including questions relating to the level of damages which has been raised by the print media in recent campaigns in this field. Specifically, the review will address, among other issues:
- Whether changes should be made to the respective roles of the judge and the jury in High Court defamation cases, in particular in relation to the question of damages;
- 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.
The core aim of defamation law in general is to find the right balance between protecting an individual’s good name and privacy, and protecting the right to freedom of expression, taking account of the vital role in our democracy played by a free and independent press. It is important that the Defamation Act operates in practice to ensure that damages awarded to a plaintiff are fair and proportionate to the harm suffered by them in the context of a defamatory statement.
The Deputy refers to the so called “serious harm” test which was introduced in section 1 of the Defamation Act 2013 in England and Wales. Since the enactment of the 2013 Act in England and Wales, this test requires a claimant when initiating a defamation action to prove that a potentially defamatory statement has caused or is likely to cause serious harm to the reputation of the claimant before the case can proceed. The effects of this requirement on defamation law in England and Wales and its possible effects in the Irish context are being considered as part of the review. This is only one of several options being examined at the moment to determine which reforms would be most effective and appropriate in the Irish legal context.