The proposed abolition of juries in High Court defamation cases to cut disproportionate awards, legal costs and appeals has been sharply criticised in the Dáil as counterproductive, with some TDs claiming it would do the opposite.
The Defamation (Amendment) Bill aims to balance and safeguard “the rights to freedom of expression with the protection of good name and reputation, and to access to justice”, Minister of State for Justice James Browne said when he presented the legislation in the Dáil.
Government backbencher, senior counsel and Fianna Fáil TD Jim O’Callaghan described the move to abolish juries as “short-sighted” and “not fully thought out”. But he also claimed that a “significant” increase in the number of defamation proceedings taken by Sinn Féin politicians had in part contributed to the introduction of protections against Slapp (strategic lawsuit against public participation) actions.
The Minister described them as abusive legal proceedings taken against someone because of their “engagement in debate, investigation or discussion on a matter of public interest that is uncomfortable to the plaintiff”. Mr Browne said “the main aim of Slapp proceedings is not to genuinely vindicate rights, but to maximise high legal costs, delays and stress, in order to threaten and silence the person targeted”. The Bill will transpose the EU anti-Slapp directive into domestic law.
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Mr O’Callaghan said he believed the public sometimes had a negative view of defamation in part because of “the frequency with which some politicians avail of the defamation laws to confront and respond to criticism in the media”.
“We need to recognise that defamation proceedings cannot be issued simply to confront or contest media criticism. If that is done with frequency, it will look like a strategy” and that was part of the reason for the Slapp measures in the Dáil, he said.
The legislation also offers a defence to retailers subjected to defamation claims if customers are challenged about whether they paid for goods before leaving a shop. A new defence is also included for broadcasters if a contributor makes a defamatory statement during a live broadcast, so long as they “took reasonable and prudent precautions before and during the broadcast to prevent this”.
Mr Browne defended the move as “the right course to take”. Juries have already been abolished in almost every other type of civil proceedings “and juries have already been abolished in Circuit Court defamation cases, with no adverse consequences, since 2009″.
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The reform is expected to significantly reduce excessive damages awards, high legal costs and delays, the length of hearings and unpredictability of outcomes and the need for expensive appeals, he said.
But Sinn Féin justice spokesman Pa Daly said it was disappointing that despite widespread calls to retain juries, including from former judge Mr Justice Bernard Barton, the Government is proceeding with their abolition. “We were promised by insurance companies many years ago that if juries were abolished, premiums would be reduced” but “of course that has not happened”.
The Department of Justice in its briefing note showed “a slight tone of condescension” about juries, that they were “unused to dealing with large sums of money” and much more likely to make excessive awards. He added: “It is difficult to see how, if they are trusted to deal with murder cases, they cannot deal with deciding whether or not a citizen has been defamed.”
Labour justice spokesman Brendan Howlin also criticised the abolition of juries. A judge is “not the most typical representative of people”, he said. A jury “are the people who will understand the value of a person’s good name in a pub, in a clubhouse” with a “much more real value judgment than any judge who is not exactly drawn from the broad strata of public life”.
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