Government approves Defamation Bill 2006
Mr Michael Mc Dowell, TD, Minister for Justice, Equality and Law Reform, announced that the Government has today approved the publication of a Bill to provide for reform and modernisation of the law relating to defamation.
Announcing the measure, the Minister said "The reform of the current 1961 Defamation Act is long overdue. The main purpose of the new Bill will be to introduce a modern statutory framework to defamation law by replacement of the current legislation. Plaintiffs should have a better sense of their rights under the law and, for those interested in obtaining speedy redress when they have been defamed, new forms of remedy will, in future, be available to them. A clear statement of the law will facilitate responsible publishers and broadcasters in avoiding defamatory statements and will provide guidance as to the limits of the various defences which are open to them."
The Bill contains the following points of significant interest:
- Provision for statutory recognition to be conferred on an independent Press Council as provided for in the agreed Programme for Government. The body must meet certain minimum requirements set out in Schedule 2 of the Bill.
- The introduction of the new defence of fair and reasonable publication on a matter of public importance. This is designed to facilitate public discussion where there is both a benefit and an interest in such discussion taking place. The establishment of this new defence on a statutory basis recognises the influence of the relevant jurisprudence at ECHR level and in the UK, as evidenced in the case of Reynolds v The Sunday Times.
Provisions relating to an Independent Press Council
The Bill (in section 43 and Schedule 2) provides for the application by a body to the Minister to confer on it recognition as the Press Council subject to the minimum requirements set out in Schedule 2. Ministerial consent is subject to a resolution of both Houses of the Oireachtas.
The Minister may, having regard to the behaviour of the recognised Press Council amend or revoke an order of recognition. This is also subject of a resolution of both Houses of the Oireachtas.
Schedule 2 provides for the considerations on which the Minister shall be satisfied prior to making an order declaring the applicant organisation to be the Press Council for the purposes of the Act.
Under this approach, the print media will be given the opportunity to put into practice its self-proclaimed determination to bring forward an independent, effective and industry funded press council operating a proper Code of Standards.
Main features of the Bill
The main features of the Bill are as follows:
- the present torts of libel and slander will cease to be so described and will instead be collectively described as the tort of defamation (section 5).
- plaintiffs and defendants in a defamation action will be required to submit a sworn affidavit verifying assertions and allegations and to make themselves available for cross examination (section 7).
- an offer of apology shall not be construed as an admission of liability (section 23). (The current legal situation effectively precludes this and impedes the giving of a speedy apology which, in some cases at least, might result in a decision not to proceed with court action).
- the defendant in defamation proceedings may in future lodge in court a sum of money without admission of liability (section 27). (This mirrors the present position with regard to other civil actions where damages are sought).
- provision is made for new remedies which a court may grant in addition to damages. These remedies will, in the normal course, be predicated upon a plaintiff having requested a timely and conspicuous retraction of the defamatory matter in circumstances where the defendant has failed to accede to that request.
- a declaratory order for which a plaintiff may apply, in lieu of damages, is intended to offer a speedy means of redress where the only issue is the wish of a plaintiff to have an acknowledgement that the matter in question was defamatory of him/her. (section 26).
- a correction order is envisaged, (as an additional remedy to declaratory judgments, as it allows the possibility of damages), which may direct the terms of any correction which a court orders to be made in favour of a plaintiff (section 28).
- a range of factors intended to guide the court in making an award of general damages is specified (section 29). Juries are being retained for High Court proceedings but the trial judge shall give directions to the jury on the matter of damages.
- aggravated and punitive damages are maintained but are limited to specific instances (section 30).
- the defences available in defamation proceedings are rationalised and clarified (sections 14 to 25).
- a list of occasions where absolute privilege arises is provided (section 15).
- the defence of qualified privilege is given a statutory basis for the first time (section 16). It is proposed that it should attach to the reports and decisions of the Press Council recognised under section 43.
- the defence of fair and reasonable publication on a matter of public importance is created (section 24). However, the availability of the defence for publishers of relevant periodicals is subject to conditions, notably membership of the Press Council and adherence to its decisions and Code of Standards and an order of recognition of the Press Council has been made in accordance with section 43. Non-member publications of the Press Council must have in place an equivalent 'fairness' regime so as to avail of the defence.
- the conditions with regard to the making of an offer of amends are updated, along with the consequences for acceptance or non-acceptance of the offer (section 20 - 21).
- the common law position with regard to the liability of distributors for defamatory material is being given a statutory basis - "the defence of innocent publication". The defence develops in a more comprehensive way the common law defence of innocent publication which has traditionally been available to distributors, in particular for such as internet service providers in recognition of the speed with which modern technology works. (section 25).
- bodies corporate are to be allowed to sue for defamation irrespective of whether financial loss had occurred (section 11).
- a limitation period of one year will apply in relation to the bringing of defamation proceedings unless that where the interests of justice so require, a court directs otherwise. However, this is also subject to a 'long-stop' of two years for exceptional cases (section 37).
- a special defamation jurisdiction limit for the Circuit Court of 50,000 Euro is provided (section 40). (The current Circuit Court limit for damages claims is 38,092 Euro).
4 July 2006
NOTES FOR EDITORS
Government Decision - On 14 June 2005, the Government approved the drafting of the Defamation Bill. It also agreed to the establishment of a working group to prepare an appropriate legislative basis for the protection of privacy which would be consistent with freedom of expression. The Group, chaired by Mr. Niall Murray, S.C., subsequently reported in March of this year and its report is dealt with in a separate press release dealing with the Privacy Bill.
Law Reform Commission - In December, 1991, the Law Reform Commission (LRC) published a final report on "The Civil Law of Defamation" which contained over 50 detailed proposals for reform in this area of the law. Subsequent to the publication of the LRC Report, a draft Defamation Bill was commissioned by the National Newspapers of Ireland (NNI) in 1994 and a Private Members Bill was published by the Progressive Democrats in 1995. Both Bills were heavily influenced by the LRC Recommendations. The Report of the Commission on the Newspaper Industry made recommendations for some changes in this area in 1996 which reflected a number of the LRC recommendations.
Programme for Government - Consequent on the commitment contained in the agreed Programme for Government 2002 'that the Government would, in the context of a statutory Press Council and improved privacy laws, move to implement reforms of libel laws designed to bring them into line with those of other states', the Minister established in September 2002, a Legal Advisory Group (LAG) on Defamation, to report on the implications of fulfilling this commitment.
Legal Advisory Group on Defamation - The Report of the LAG was published in June 2003, and the Minister initiated a public consultation process on the Report. In addition, the Minister held a major conference on 1 December 2003 to facilitate an exchange of views from a wide cross-section of interested parties. The Bill now published takes into account the very wide consultation process engaged in by the Minister, including consultations with the Irish Press Industry Steering Committee which is advancing proposals for an independent Press Council, a Press Ombudsman and a Code of Standards.