Defamation legislation criticised for leaving out key 'serious harm test'
As well as the abolition of juries, the legislation provides against strategic lawsuits against public participation (SLAPP) proceedings, which are recognised internationally as a threat to press freedom and democracy, as well as a new defence for li
The Government has been criticised for failing to include a "serious harm" test in its new legislation overhauling Ireland’s archaic defamation laws.
The changes were signed off by Cabinet earlier this week and formally announced by Justice Minister Helen McEntee on Thursday.
There had been calls to introduce a "serious harm" test similar to what was introduced in the UK as part of its defamation law.
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This states that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
This was omitted from the legislation, which the government plans to enact in the coming months.
Newsbrands, the representative group for newspapers, welcomed the legislation but criticised the decision not to include a "serious harm" test.
"We urge reconsideration of this as the Irish media faces, on an almost daily basis, unwarranted and exaggerated claims for defamation," CEO Anne Marie Lenihan said.
Speaking at Government Buildings on Thursday morning, Minister McEntee said that the Government had received legal advice from both the Attorney General and outside legal counsel and that it was decided a serious harm test would be too "burdensome".
"There are a number of reasons why we've decided not to move with it," she stated.
"What we've seen in the UK is that it has in a lot of instances resulted in significant delays and increased costs for pre-trial hearings where a person is trying to set out serious harm that has been caused.
"We also had to balance the constitutional rights that exist in this country, a person's right to protect their name, to access justice, while also protecting freedom of expression.
"It's for that reason that we have not applied this. However, there are other tests.
"For example, in the retail space, obviously it had been requested that we would have a serious harm test. We have provided for the new defence of qualified privilege."
Ms McEntee described the legislation as a "significant overhaul" that "strikes the right balance between the right to freedom of expression to protect everyone's good name and reputation".
As well as the abolition of juries, the legislation provides against Strategic lawsuits against public participation (SLAPP) proceedings, which are recognised internationally as a threat to press freedom and democracy, as well as a new defence for live broadcast where reasonable and prudent precautions have been taken.
A new statutory defence for 'retail defamation' cases will also be introduced. This will ensure that a defamation case cannot be taken against a store if a person who attempts to leave a shop with goods is asked to produce a receipt for them.
This has to be done in a manner that does not "cause upset or to cause embarrassment or to shame a person".
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