Cabinet to consider long-awaited ‘anti-SLAPP’ libel reform bill

Measures to prevent powerful individuals from taking vexatious legal action to silence criticism or valid debate are contained in the long-awaited libel reforms to be presented to Cabinet this week.

An “anti-SLAPP” mechanism was recommended in a report reviewing defamation law, Sunday Independent has learned.

The term “SLAPP” stands for “strategic prosecution against public participation” and refers to a powerful entity’s misuse of vexatious litigation to weaken and discourage public interest discussion and investigative journalism.

It is usually a baseless or exaggerated legal action filed by a wealthy person or entity against a weaker party in an attempt to silence and intimidate a critic by imposing legal defense costs.

The report recommends that a mechanism be put in place to combat such practices, whereby a defendant can apply to the court for the summary dismissal of a proceeding that it believes to be a SLAPP.

Subject to cabinet approval, Justice Minister Helen McEntee intends to publish the report and include the recommended reforms in a new libel bill. The move follows long-standing criticism of the Irish defamation regime.

Index on Censorship, a free expression organisation, has found the Irish court system to be one of the most vulnerable in Europe to abuse by vexatious litigants and that there were indications that the country was becoming a hub of “defamatory tourism”.

The European Commission’s 2020 report Rule of Law Report found that the frequent libel suits, high costs and high damages awarded by Irish courts were “seen as incitement to self-censorship and an impediment to media freedom”.

The report presented to Cabinet on Tuesday also recommends the introduction of a requirement for a court to be satisfied that Ireland is clearly the most appropriate place for an action.

At present, the bar is low for a libel action involving foreign parties to be heard in Ireland.

A prominent recent example of defamation tourism is the case brought by American motivational speaker Tony Robbins against a UK subsidiary of the New York-based internet media company Buzzfeed over articles alleging sexual misconduct, which he denies. .

The High Court upheld Mr Robbins’ right to bring an action in Dublin, even though the offending articles have only been viewed 13,382 times in Ireland out of 3.5 million views worldwide.

Readers in the United States accounted for 82.7% of these opinions, potential witnesses in the defamation action all live in North America, and the website is hosted by a company in the state of Virginia.

As revealed by Sunday Independent last week, the report also recommends the abolition of juries in libel suits at the High Court, a move that would provide more certainty over damages and reduce the likelihood of excessive or disproportionate awards.

A judge would decide whether there has been defamation, and the nature and level of relief, including the amount of damages.

The report concluded that abolishing juries would also shorten the length of hearings, reduce delays, and significantly reduce the proportion of cases brought to appeal.

While the media and freedom of expression groups will welcome these measures, they will probably be disappointed that the report does not go further.

In particular, he does not recommend the introduction of a cap on damages in defamation cases, considering that this would give rise to constitutional difficulties

Nor does it recommend the introduction of a general requirement for a claimant to first prove that they have suffered “serious harm”, a requirement introduced in the UK in 2013.

However, he recommends that this be considered in two cases.

The first is when a statement is made in “a non-permanent forum”, such as when a person is denied access to retail services.

The second would be for situations where a company is suing. She would have to demonstrate that the impugned statement caused her to suffer serious financial loss. However, the report indicates that consideration should be given to exempting SMEs from this requirement.

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