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On the 28th of March, the Department of Justice in Dublin approved the publication of the general scheme of the Defamation (Amendment) Bill, which will be referred to the Joint Oireachtas Committee for pre-legislative scrutiny. The Bill follows a major review of the Defamation Act 2009 (2009 Act) and makes a number of key changes to this cornerstone statute in Irish defamation law.
The Bill proposes an insertion after Part 4 in the 2009 Act, of a new Part, entitled ‘Measures against abusive litigation to restrict public participation’. This is to deal with defamation proceedings being used as ‘Strategic Lawsuit Against Public Participation’ (SLAPP). This refers to the strategic and abusive use of vexatious litigation, by a powerful entity or individual, to weaken and deter public interest discussion (and in particular investigative journalism). This new anti-SLAPP mechanism allows a person to apply to court for summary dismissal of defamation proceedings that he/she believes are a SLAPP.
The Bill includes an introduction allowing the Circuit Court, as well as the High Court, to have a new statutory power to make a ‘Norwich Pharmacal’ order. This means that where defamatory material is posted anonymously on a hosting platform or on social media, the intermediary services provider concerned will possess identifying material about the anonymous poster who is its account holder but will not provide such information in the absence of a court order. The person who considers themselves defamed by that material will have to seek a ‘Norwich Pharmacal’ order from the court to obtain it but can do so if the court considers that the material is, prima facie, defamatory.
Currently, the Norwich Pharmacal order can only be granted by the High Court. The costs associated with seeking such an order are quite high. The Circuit Court will now have the jurisdiction to hear and decide defamation cases (including online to make a Norwich Pharmacal order). This key change will reduce the costs involved for all parties (and particularly for the plaintiff, who often has to pay the online services provider’s legal costs, as well as their own) and ensure that such orders are more accessible in practice. For more information on Norwich Pharmacal orders, read our previous article here.
These are all welcome reforms, and it is hopeful the Bill will remain near the top of the Government’s agenda to implement.
For advice or further information on this topic, please contact Stephen O'Connor (email@example.com) or Clodagh (firstname.lastname@example.org).
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This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.
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