The Defamation (Amendment) Bill 2024 reaches Seanad third stage on Thursday at 11.45am. High Noon.
So far, this deeply flawed Bill has sailed through the Dáil and Seanad, unperturbed by anything other than a few TDs and senators mourning the ending of jury trials for defamation.
The fact that the vast majority of defamation litigation takes place in the Circuit Court without juries has so far escaped notice in the Oireachtas.
So has the fact that Ireland has a higher number of defamation cases than England and Wales combined. In 2023, courts in England and Wales handled 250 defamation cases; Ireland had 360. That means Ireland has a defamation litigation rate 19 times higher than England and Wales on a per-capita basis. This is because our laws encourage litigation, not resolution.
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Retailers, in particular, are being hit hard. Did you know that asking a customer at an off-licence for ID can be framed as a defamatory statement? Or asking for a till receipt? Or quietly refusing to accept a €50 that failed a counterfeit check? All have resulted in legal actions.
This is “retail defamation”: situations where businesses are sued (or threatened with being sued) for doing nothing more than protecting their stock or enforcing their legal obligations. The allegations are often minor, exaggerated, manufactured or plainly unfounded.
The cost of fighting them in court is so high that many businesses choose to settle, even when they have done nothing wrong. On legal advice, many retailers now operate a “no challenge” policy toward suspected shoplifters because it is far cheaper to let them steal than it is to defend a defamation action.
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One major Irish grocery operator budgets losses through theft amounting to between €70,000 and €90,000 annually for each of its convenience stores and between €120,000 and €140,000 for its supermarkets.
There is another example where a licensed premises successfully defended a defamation claim in the Circuit Court, only to face a threat of a High Court appeal unless they agreed to cover the plaintiff’s legal costs. The business ultimately had to pay €3,000 in the settlement and absorb €12,375 in legal fees, with a subsequent rise in their insurance premium. This case underscores how the system incentivises legal threats against SMEs, regardless of merit.
The original General Scheme for amendment in 2023 promised to introduce a defence of “transient retail defamation”, a common-sense measure to protect retailers, pharmacists, hospitality workers and others dealing with the public.
That protection has been quietly dropped in this Bill. Instead, the Government now points to an expanded “qualified privilege” defence, which already exists under the 2009 Act. It is already successfully used by retailers to defend these claims, but these are immediately appealed to the High Court. Retailers are still being threatened. Insurance costs are still climbing. And the legal threats keep coming.
Worse still, the Bill does not include a harm test to prevent frivolous cases. This is not reform. It is retreat.
Some people have framed this Bill as an assault on the right to a good name, but it is an attempt to rebalance competing constitutional rights. Unfortunately, the attempt falls far short of what is expected by the European Court of Human Rights. Both Article 40 of the Constitution and Article 10 of the European Convention on Human Rights (ECHR) protect freedom of expression. That right is more honoured in the breach than the observance in Ireland.
Why the Irish media has been so quiescent on this issue is a mystery. The International Press Institute published a report in 2023 called Ireland: how the wealthy and powerful abuse legal system to silence reporting. It detailed 19 cases of Slapp (strategic litigation against public participation) lawsuits referred to it by various parties. It could not identify plaintiffs of course; to do so would be viewed as defamatory in Ireland. To suggest that a defamation plaintiff is engaged in a Slapp suit in Ireland is ... defamatory.
The Irish Small and Medium Enterprise association (ISME), retail representative group RGDATA and the Index on Censorship have made direct appeals to senators to amend the Bill. Thirty bodies and civil society organisations, including the National Union of Journalists, RTÉ and the Irish Council for Civil Liberties have also called for amendment of this Bill. It is objectively not fit for purpose as legislation intended to address the legal and constitutional shortcomings in the Defamation Act.
ISME has made it very clear to TDs and senators that this Bill falls drastically short of what is required to stop abusive defamation litigation. We have tried to compromise and have sent senators proposals for just two amendments: one on the definition of defamation and the other on the capping of damages. Even these will not close the gaps which the EU Anti-Slapp Directive requires Ireland to address no later than May 2026.
This Bill will not vindicate freedom of expression. EU justice commissioner Michael McGrath last week described freedom of expression as “sacrosanct”. If this flawed amendment is enacted, we will be forced to take the matter to the European Commission’s Directorate-General for Justice and Consumers on Article 10 grounds under the ECHR.
However, we hope that the prime motivator for the Seanad this week is not the threat of referral of the State to the European Commission. Rather, we would like to think our legislators’ greater motivation would come from their desire to ensure citizens’ rights granted by the 1937 Constitution.
Over to you, Seanad Éireann.
Neil McDonnell is chief executive of ISME, the Irish Small and Medium Enterprise association
