The Irish Government has published the next phase of its plan to overhaul Irish defamation law. The Defamation (Amendment) Bill (Bill), available here, is now set for detailed review and debate, with further changes likely before it becomes law.

In this blog post, we look at some of the key changes proposed by the Bill which will be of interest to online service providers, including social media platforms, seeking to navigate an increasingly complex media and regulatory landscape.

How will the current proposed changes to defamation law impact online service providers? 

Generally, online service providers are not liable for defamatory content posted on their platforms by a third party provided they do not have actual knowledge of the content, or, having been notified and obtained such knowledge, they act expeditiously to remove the content. 

Some of the key issues addressed by the Bill that will be on interest to online service providers are considered below: 

EU regulatory landscape: As anticipated, the Bill takes into account several legislative developments that directly affect online service providers, including the Digital Services Act (DSA) (discussed in this article), the Online Safety and Media Regulation Act (considered in this article), and EU Directive 2024/1069 which protects persons engaged in public participation against strategic abusive or unfounded lawsuits (SLAPPs).

Abolition of juries: The Bill proposes to abolish juries in High Court defamation actions, with the aim of reducing disproportionate awards of damages, delays and legal costs. This proposed amendment is supported by particular media organisations as a necessary and long-awaited reform. However, that view is not shared by all and the Law Society of Ireland and the Oireachtas Justice Committee have expressed concerns that the proposed measure will negatively affect public access to the justice system.

Protective measures for those targeted by SLAPPs: A highly anticipated aspect of the Bill are the new measures that seek to protect individuals or organisations against unfounded defamation proceedings such as attempts to silence responsible investigation, discussion or debate on matters of public interest. By individual defendants seeking to take protective measures, it seems inevitable that online service providers will have a role to play if the actions concern online content. For example, they may find that they are the subject of Norwich Pharmacal Orders, requiring online service providers to preserve certain data and/or identify wrongdoers (discussed below).

Test of serious harm for defamation of body corporates: The Bill specifies that a body corporate may bring an action for defamation where the publication of a statement has caused, or is likely to cause, serious harm to the body corporate’s reputation. The Bill clarifies the test for defamatory statements made against body corporates, providing that, where the body corporate trades for profit, harm to its reputation shall not be considered serious harm unless it has caused or is likely to cause serious financial loss. The introduction of a serious harm test for corporate plaintiffs and not individual plaintiffs means that any potential actions by a body corporate are only likely occur in the most exceptional and extreme cases.

Increased alternative dispute resolution (ADR) obligations: In addition to the existing ADR obligations for solicitors under the Mediation Act 2017, the Bill provides that a party may apply, or the Court can decide, to invite the parties to consider ADR in defamation proceedings. The Court may consider any unreasonable refusal or failure by a party to the proceedings to consider, attend or engage in ADR when awarding costs. These provisions are likely to reduce costs for online service providers involved in defamation actions.  

Online-only publications to be expressly included in definition of “periodical”: The Bill amends the definition of periodical to expressly include online-only publications, expanding the jurisdiction of the Press Council and Press Ombudsman to such publications. While many online publications are already members of the Press Council, the amended definition ensures that such publications can be the subject of complaints to the Press Council and are governed by the Code of Practice.

Additional changes to be included in later drafts of the Bill: Certain amendments identified in the General Scheme of the Draft Defamation (Amendment) Bill, of particular importance to online service platforms, are not included in the Bill, but the Irish Government has confirmed they will be included during the passage of the Bill. This includes a new statutory power for the Circuit Court to issue Norwich Pharmacal Orders, making it easier to obtain such Orders against online service platforms, and the introduction of a Notice of Complaint procedure, aimed at resolving complaints quickly and without recourse to the Courts. 

How can online service providers prepare? 

The Bill has been marked as priority legislation. The Bill will next be debated by the two houses of the Irish Parliament, Dáil Éireann and Seanad Éireann, which are likely to propose amendments to the current Bill. Once approved by Irish Parliament, the Bill will be signed into law. The timeline for this is not yet clear, but the Government has indicated that it intends to introduce the Bill to Irish Parliament by Autumn 2024.

Online service providers should familiarise themselves with the proposed changes and consider whether modifications are required to current business or commercial practices. 

Importantly, the Bill aims to ensure that defamation actions are dealt with quickly and in a cost-efficient manner. The Bill provides a helpful indication of how this likely to occur, and a framework for reducing legal costs and delays for parties who find themselves embroiled in defamation proceedings.