SLAPPs: the proposed legislation in Ireland, is it balanced?

The Irish government has published what is known as a “Draft General Scheme” of its proposed Defamation (Amendment) Bill [pdf].  This includes a proposed new Part 5 of the Defamation Act entitled “Measures against abusive litigation to restrict public participation (SLAPPs)“.

These proposals in relation to SLAPPs are draconian and give rise to a number of potential issues. The scheme of the proposed new Part 5 is as follows:

First, it applies to any defamation claim concerning an “act of public participation”, which is defined as statement or publication on a “matter of public interest”.  This has a broad, non-exhaustive definition:

any matter which affects the public to such an extent that the public may legitimately take an interest in it, in areas such as:
(a)  fundamental rights, public health, safety, the environment, or climate;
(b)  activities of a public figure;
(c)  matters under consideration by a legislative, executive or judicial body, or any other official proceedings;
(d)  allegations of corruption, fraud or other criminal offences;
(e)  activities aimed to fight disinformation (see Head 24).

A large proportion of libel claims are likely to classified as claims concerning “acts of public participation”.

Second, a defendant to such a claim can apply for early dismissal (see Head 26).  On the hearing of such an application, the plaintiff must show that the proceedings are not “manifestly unfounded” or that they do not exhibit “one or more features of concern”.  This means “any of the following features”:

(a) the making of claims of a disproportionate, excessive or unreasonable nature;
(b) intimidation, harassment or threats made by the plaintiff or his or her representatives against the defendant or associated parties, including prior to the institution of the proceedings;
(c) the existence of multiple proceedings initiated by the plaintiff or associated parties, against the defendant or associated parties, in relation to similar matters;
(d) the conduct of the litigation by the plaintiff in a manner which is disproportionate, excessive or unreasonable, including (but not limited to) the use of aggressive, unreasonably frequent, or intrusive pre-action communication;
(e) the conduct of the litigation by the plaintiff in a manner which is likely to generate disproportionate, excessive or unreasonable costs or delays to the defendant, especially when the balance of financial resources between the parties is significantly in favour of the plaintiff: this includes (but is not limited to) the choice of jurisdiction and the use of requests for disclosure or discovery;
(f) the seeking by the plaintiff of remedies that are disproportionate, excessive or unreasonable (see Head 24).

The question of whether a claim, the conduct of the litigation or the remedies claimed are “disproportionate, excessive or unreasonable” is fact specific and could, many cases, lead to lengthy investigations at the dismissal hearing.

Third, the court may permit proceedings which exhibit “features of concern” to proceed if the plaintiff shows both (a) that the claims are likely to succeed; and (b) that the public interest in proceeding outweighs the public interest in dismissing the case. If the court does not dismiss the proceedings there is a presumption that the plaintiff is not entitled to costs.  In other words, if a defendant brings an unsuccessful dismissal claim which fails after a long and expensive hearing the presumption is that, nevertheless, the plaintiff will have to pay their own costs.

Fourth, the Court may order security for costs in any claim covered by Part 5, and may permit interventions by NGOs to support the defendant.  The draft does not contemplate interventions to support the plaintiff.

Fifth, if the court is satisfied that the claim is a SLAPP it may award damages against the plaintiff for the harm suffered by the defendant as a result of the proceedings.  A plaintiff who suffers harm as the result of an unsuccessful SLAPP application has no right to compensation.

There are a number of points to emphasise about these proposals.

• They do not just apply to publications by journalists or NGOs but to any statement by anybody at all on a matter of “public interest”:  they would, for example, cover a statement made in a newspaper accusing a private individual of criminal wrongdoing or even such an allegation made orally by a neighbour.
• They do not just apply to claims by wealthy individuals or corporations but to any claim by anyone in respect of a statement of “public interest”.  So a claim by a private individual against a newspaper which had accused them of theft or assault would be claim relating to an “act of public participation” in relation to which the newspaper could invoke the provisions of Part 5.
• The proposals mean that, in a large proportion of defamation cases, there could a preliminary hearing – at which the plaintiff bears the burden of proof – where the Court has to apply vague and uncertain standards as to whether the claim shows “features of concern”.

The purpose of these proposals is the laudable one of protecting public interest publications against unjustified bullying attacks by wealthy plaintiffs.  But in their present form they go very much wider.

If these proposals become law they will impose serious burdens on libel plaintiffs, whether rich or poor – who are likely to suffer routine dismissal applications by defendants.  They provide a powerful weapon in the hands of wealthy defendants seeking to derail meritorious defamation claims. The costs and complexity of libel litigation in Ireland are likely to be substantially increased and with serious obstacles being placed in the path of many plaintiffs.

The question arises as to whether legislation in these terms strikes a fair balance between the right to freedom of expression under Article 10 ECHR and the right to reputation under Article 8 ECHR.  In Ireland, these rights are also protected under Article 40 of the Constitution: the right to free expression (Article 40.6.1(i)) and the right to vindicate a person’s good name (Article 40.3.2)(see generally, this post by Eoin O’Dell).

The Irish procedure of publishing the “Draft General Scheme” of a Bill is designed to provide pre-legislative scrutiny: the draft is considered by a Oireachtas (Parliamentary) committee which may consider evidence and then presents a report on the Bill making recommendations.  This procedure may result in a revision of the proposals so that they are more clearly focussed on the intended mischief.