Planned reform of defamation law ‘undemocratic’, says retired judge – The Irish Times
A retired judge who presided over High Court defamation cases has strongly criticised the “undemocratic” proposal in the Government’s just-published Defamation Bill to abolish juries for such actions.
Minister for Justice Helen McEntee, when announcing Cabinet approval of the Bill late last month, said abolishing jury hearings will reduce the likelihood of “disproportionate” awards of damages and “significantly reduce delays and legal costs”.
Bernard Barton, who retired in 2021 having presided over the High Court civil jury list for several years and who was among those who made submissions on the scheme of the Bill, said the claims made to support abolition involved “factual and legal dishonesty”.
That, and the “undemocratic nature” of the proposal, provoked him to speak out, he told The Irish Times this week.
In proposing abolition, the Department of Justice has “deliberately disregarded” a 2022 Supreme Court decision, Higgins v Irish Aviation Authority, setting mandatory guidelines for awarding damages in all future defamation cases, he said.
The principal ground advanced for abolition of juries in the Defamation (Amendment) Bill 2024 is the need to ensure proportionality of damages awards, he said.
That objective, which he “entirely agrees” with, was “comprehensively addressed” by the Higgins decision.
The upper limit for the worst possible kind of defamation set by the Supreme Court is now approximated to the most serious case of personal injury set out in the personal injury guidelines, operational since March 2023, he said.
The guidelines, or parameters, set by the Supreme Court address another argument advanced for abolition of juries, the need to ensure predictability of awards, he said.
“For reasons which have yet to be explained, the Department of Justice has deliberately disregarded the judgment of the court and the guidelines set out, notwithstanding that the declared purpose and design is to ensure the principle of proportionality.”
Mr Barton said he was also “astonished” the Bill does not contain an amendment providing for a more simplified defence of fair and reasonable publication on matters of public interest.
That defence, set out in section 26 of the Defamation Act 2009, is “unnecessarily complicated” and it is in the public and media interest to have it amended, he said. The original scheme of the Bill contained a simplified version of section 26, which he had supported, and he did not understand why the Bill itself did not reflect that.
Published last week following approval by the Cabinet, the Bill is due to go before the Oireachtas in the autumn with a view to being enacted by Christmas, although a winter general election could derail that timetable.
When announcing publication, the Minister for Justice said the “overarching aim” of the Bill was to “safeguard freedom of expression, the right to protection of good name and reputation, and the right of access to justice”.
Its proposals include the abolition of juries for High Court defamation actions, protections against strategic lawsuit against public participation (Slapp) cases, and measures to reduce the legal costs for those involved.
Other provisions are aimed at making it less costly for plaintiffs to obtain the identity of people who post defamatory content online. It also includes a new defence for retailers facing defamation claims over challenging people on whether or not they have paid before leaving a shop.
The legislation has been long sought after by the media, with newspapers and other outlets arguing that Ireland’s libel laws are a threat to media freedom.
It has also been long campaigned for by retail and business groups. The Irish Small and Medium Employers body said this week the abolition of juries and various other reforms, while welcome, do not go far enough. The absence of provision for a “serious harm” test is “unjustifiable”, it said.
