Defending Speech: A Call for Irish Defamation Reform

Krizia Testa

   1. Introduction

 At the core of Irish defamation law is an attempt to reconcile two Constitutional provisions; Article 40.3.2°, which describes the citizen’s right to a good name as one which shall “in particular’’ be protected and vindicated by the State; and Article 40.6.1°i, which guarantees the “right of the citizens to express freely their convictions and opinions’’.[1] The legislative task of upholding the citizens’ right to a good name without unnecessarily hampering the exercise of liberty of expression is crucial, yet arduous.

In January 2010, the Defamation Act 1961 was repealed and replaced by Defamation Act 2009 (the Act), which consolidated many of the common law principles on defamation and introduced significant reforms.[2] As this article shall demonstrate, however, the Act strikes an inadequate balance between the two competing rights, weighing heavily towards reputational protection at the expense of free speech and public-interest reporting, which are integral to a functional democracy. Further, in view of an increasingly complex digital landscape, the Act is severely outdated, lacking the intricacies necessary to redress online and anonymous defamation.

Although two Defamation (Amendment) Bills were produced by the Government in the last 10 years, neither of them have been enacted[3]. However, following publication of the Draft General Scheme of the latest Defamation (Amendment) Bill in March 2023, the question as to whether the current regime may be subject to a far-reaching overhaul in the near future remains a live one. This article addresses some of the core shortcomings of the 2009 Act in light of reform proposed within the Draft General Scheme.


  2. Issuing proceedings under the 2009 Act

Presently, pursuant to sections 6(2) and 6(3) of the 2009 Act, in order to bring a defamation claim, a potential claimant need only prove that the impugned statement was published to a third party, that it identified the claimant, and that it was “defamatory” in nature i.e., that it caused reputational damage “in the eyes of reasonable members of society’’.[4]Moreover, section 12 of the Act provides that a body corporate can similarly issue defamation proceedings irrespective of “whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.”

The current standard imposed by the Act is minimal. The ease with which proceedings can be brought does not prove effective in filtering out trivial, unmeritorious, or vexatious claims, as the prospective plaintiff need not demonstrate that serious reputational damage or material loss have in fact arisen from the impugned statement. Under the presumption of falsity, a long-standing common law principle on defamation, the plaintiff need not prove that the ‘defamatory’ statement is false.[5] The omission of such conditions inarguably favours the prospective plaintiff,[6] particularly when considering that the legal burden subsequently falls on the defendant to prove himself innocent, or to prove the statement true[7] – an endeavour which necessitates appreciable time, money, and resources. This creates a severe imbalance and may have strongly contributed to the high frequency of defamation claims brought in Ireland in recent years,[8] together with what has long been marked in mainstream media as ‘defamation tourism’.[9] Disconcertingly, in the European Commission’s 2020 Rule of Law Report, the frequent use of defamation action in Ireland was strongly criticised as an “inducement to self-censorship and a constraint to media freedom”.[10]

Review of the equivalent law in comparable jurisdictions, such as England and Wales, reveals that Irish defamation law, as it stands, is far more favourable to the prospective plaintiff in this regard.[11] Importantly, Section 1(1) of the England and Wales Defamation Act 2013 (the 2013 Act) imposes a serious harm test, wherein a statement is only deemed to be defamatory if “its publication has caused or is likely to cause serious harm to the reputation of the claimant”.[12]With respect to bodies which trade for profit, section 1(2) specifies that “serious harm” must constitute likely or actual “serious financial loss”.[13] Prior to the 2013 Act, the concept of serious harm was established in Jameel v. Dow Jones & Anor[14] and further consolidated in Thornton v. Telegraph Media Group,[15] wherein Tugendhat J asserted that, in deciding whether a claim should proceed, the courts “must always include a threshold of seriousness so as to justify the interference with the Article 10 [ECHR] right of freedom of expression”.[16] In Scotland and Australia, analogous serious harm tests are imposed.[17]

The Draft General Scheme proposes the imposition of a seriousness threshold in relation to defamation actions brought by bodies corporate, insofar as they must demonstrate that the impugned statement “has caused, or likely to cause, serious harm to the reputation of the body corporate in the eyes of reasonable members of society”.[18] With regards to corporate bodies which trade for profit, the Draft General Scheme proposes a requirement akin to that introduced by section 1(2) of the England and Wales Defamation Act 2013.[19] In addition, the adoption of a seriousness test is also proposed in relation to defamation claims emerging from ephemeral statements made in the course of providing retail services, otherwise known as “transient retail defamation” actions.[20]

Notwithstanding the significance of these proposals, the lack of an all-encompassing serious harm threshold risks allowing trivial claims to persist in stifling liberty of expression and overburdening the courts with costly and lengthy proceedings.[21] In circumstances wherein the waiting time for the allocation of a hearing date for defamation trials presently stands at 14 months,[22] there is a strong incentive to urgently alleviate these delays. Substantially delaying the vindication of a defamed individual’s reputation, particularly where defamation arises from digital publication with a potential for rapid circulation, constitutes a complete denial of justice.[23] Therefore, the imposition of a comprehensive seriousness threshold may serve to expedite adjudication, lessen the restrictive effect of defamation law on liberty of expression by discouraging its misuse,[24] and enable more effective utilisation of court resources.[25]


  3. Jury decisions and awards

Despite the abolition of juries from nearly all civil proceedings in Ireland,[26] the 2009 Act preserves their role in High Court defamation litigation.[27] Jury involvement is widely regarded to significantly lengthen defamation proceedings and, intuitively, render them more costly[28]. Indeed, a comparative Oxford study has shown that Ireland ranks second highest to the UK in costs incurred during defamation proceedings across Europe.[29] Since then, however, the UK has statutorily displaced the presumption of a defamation trial by jury.[30]

Ireland has also ranked second highest to the UK with respect to the damages awarded in defamation cases across Europe.[31] Considering both jurisdictions uniquely employed a jury-determined system of damages at the time, the study identified a correlation between the use of jury trials and unusually high damages.[32] The UK has since not only displaced jury trials but also imposed a notional ceiling on libel awards, approximately set at £30,000 – a figure reserved for the gravest of allegations, such as imputations of murder or terrorism.[33]

Given the absence of a cap on damages in Irish law[34] and the continued involvement of juries in deciding on quantum of damages,[35] the Draft General Scheme proposal to abolish juries in High Court defamation actions is commendable.[36] The rationale underpinning this endorsement is three-fold;[37] jury-awarded damages are entirely unpredictable,[38] very often disproportionate,[39] and often many times larger than those awarded in other European jurisdictions.[40] Although the 2009 Act provides for guidance to be given to juries on assessing general damages,[41]this has proved largely insufficient.[42] Indeed, Irish jury awards for defamation have reached levels of €10 million,[43]€1.87 million,[44] €900,000,[45] and €750,000. All figures were deemed excessive and disproportionate by appellate courts, each being reduced drastically on appeal. Notably, the €10 million award in Kinsella v. Kenmare Resources Plc was reduced by 97.5% to €250,000.[46] The €900,000 jury award in McDonagh v. Sunday Newspapers Limited was similarly deemed excessive by a 92% margin on appeal.[47] These observations disclose an issue not only with the frequency of excessive jury awards, but also the extent of their disproportionality.

It is for this reason that the current regime has been subject to strong international criticism. On discussion of the EU Commission’s 2020 Rule of Law report,[48] Justice Commissioner Didier Reynders[49] flagged “the high cost of defence and the high damages awarded by the Irish courts’’ as circumstances which work to “the detriment of the fight against corruption’’.[50] Moreover, the European Court of Human Rights (ECtHR) recently ruled that an Irish Supreme Court-approved award of €1.25 million violated Article 10 of the ECHR due to its “unreasoned” nature, and found that the safeguards in place at both trial and appellate level against disproportionate and arbitrary defamation awards had failed.[51] The ECtHR voiced concern in relation to such awards, emphasising their potential to exert a “chilling effect” on freedom of expression.[52]

Reporters without Borders (RSF) further criticised the 2009 Act in this regard as one which “has fuelled a trend of self-censorship’’ by enabling “exorbitant damages’’ to be awarded, coupled with high defence costs.[53] Under these circumstances, “prominent individuals known to be litigious [have] become largely untouchable by the Irish media”.[54]Based on approximated values of between €200,000 and €250,000 in legal fees alone to be incurred within four days of defending a High Court defamation case in Ireland, Index on Censorship reported that it considers the burden of a single defamation case sufficient to shut down many Irish media outlets.[55]

Irish defamation law at present is thus manifestly vulnerable to abuse.[56] Powerful, wealthy individuals are virtually incentivised to deploy threats of litigation, even if groundless, in order to intimidate academics, scientists, journalists and critics, who are often cognisant of the high costs incurred in defending defamation litigation, as well as the risks of a jury trial. The efficacy of such tactics lies in the sheer ease with which defamation litigation can be brought, particularly in the absence of a seriousness threshold, and the gross financial burden it imposes on potential defendants. Accordingly, the mere prospect of litigation enables public individuals to suppress vigilance and public-interest reporting of their activities with alarming ease, as few journalists or academics can realistically take the risk to publish. In this context, the 2009 Act has been described as one which “has supplemented the plaintiff’s armoury substantially”,[57] a perspective which may be largely attributed to punitive costs, jury unpredictability, and delays – aspects of Irish defamation law which may be successfully leveraged by a prospective plaintiff, regardless of whether the claim has substance.

The proposed abolition of jury trials in defamation litigation thus goes some way toward ensuring that proportionality governs all forms of remedy encroaching on the right to liberty of expression. Additionally, the reform would rectify the lack of transparency stemming from the  impermissibility of jury awards being substantiated by reasons or logic. The unsupported nature of such decisions presently shrouds defamation outcomes in legal uncertainty and significantly raises the incidence of appeals (which are grossly costly), further protracting litigation. These reverberations anchored the ECtHR’s recent condemnation of the lack of explicit reasoning for a defamation award of €1.25 million[58] in Independent Newspapers (Ireland) Limited v. Ireland.[59]

In light of such concerns, the proposed abolition of jury decisions is pivotal in establishing a framework wherein the work of journalists and academics is not imperilled by the prospect of prohibitive,[60] costly,[61] and unpredictable litigation.


  4. Defences

Part 3 of the 2009 Act provides nine potential defences and privileges for use by a defendant against  a defamation claim;[62] the defence of truth,[63] innocent publication,[64] fair and reasonable publication on a matter of public interest,[65] honest opinion,[66] offer of amends,[67] apology,[68] consent to publish,[69] absolute privilege,[70] and qualified privilege.[71] The operation of two of the existing defences, which are particularly relevant to journalists, are examined below.


  4.1. The defence of truth

A disputed statement is not considered defamatory by the courts if it is materially true.[72] Pursuant to section 28(3) of the Act, however, a contested statement is presumed to be false at the outset by the courts, in compliance with the long-standing presumption of falsity.[73] A prospective plaintiff may thus bring proceedings against a publisher without demonstrating falsity of the impugned publication.[74] The legal burden, instead, rests on the defendant to sufficiently demonstrate veracity of the publication to prove himself innocent, if he chooses to plead the “defence of truth” provided by section 16(1) of the Act.

It is indeed fair to hold individuals to account with respect to assertions they make about others. However, in certain instances, a defendant is unable to establish the truth of a publication in court, notwithstanding its actual veracity.[75] An investigative journalist whose report is based on a confidential source who is unwilling to testify in court or disclose theiridentity is unjustly left unable to invoke the “defence of truth” provision.[76] In such cases, a journalist may choose to forgo publishing under the recognised threat of indefensible litigation. This concern was at the core of the ECtHR’s finding that the common law presumption of falsity could violate Article 10 of the ECHR in the absence of procedural fairness and equality of arms, and that a newspaper should be exempt of the burden of proving veracity if the publication was made on foot of a reasonable, protected source.[77] Indeed, in Wall St Journal Europe v. UK, application of the presumption in those circumstances was held to violate Article 10 of the ECHR.[78]

In 1991, the Law Reform Commission suggested that the presumption of falsity be abolished, with the majority considering “the existence of an artificial presumption at variance with the facts” to be unjust to publishers and out of line with the public interest.[79] Notably, however, the Draft General Scheme does not advance any proposals whatsoever in this respect.

Although it is not being submitted here that the presumption should be abolished entirely, reversal of the burden of proof onto the plaintiff where the plaintiff is a public official, or when the matter is of public concern, merits consideration. An exception akin to this exists in the United States pursuant to the 1986 Supreme Court judgment in Philadelphia Newspapers v. Hepps,[80] whose footing lies in the free speech protections guaranteed by the First Amendment to the Constitution. The concern arises, however, that adopting this approach may open the metaphorical ‘floodgates’ to a barrage of reckless, unfounded statements concerning public officials, issued without sufficient care as to their truth or falsehood. The better recommendation, therefore, is to reverse the burden of proof onto a public-official plaintiff (or in relation to a public matter) only where the standards of responsible journalism provided in section 26 of the Act are satisfied.

Reform of this nature is exigent, particularly considering the procedural inefficacy (examined below) of the public-interest defence provided by the Act,[81] together with the journalistic obligation to protect sources at risk. Defamation law should not pose an indefensible threat to responsible investigative journalism, as this ill serves the citizens of a democracy and their right to receive information on matters of public interest from the press.[82]


  4.2. The defence of fair and reasonable publication

Section 26 of the Act provides for a defence of “fair and reasonable publication on a matter of public interest”, intended primarily for use by media defendants.[83] The defence requires that the act of publication satisfies both fairness and reasonableness standards[84] based on an indicative list of 10 matters to be considered in section 26(2). Further, in order to plead this defence a defendant must demonstrate that the publication was made in good faith, and on a subject of public interest whose discussion is of public benefit.[85] Finally, the defendant must also prove that the “manner and extent of publication of the statement did not exceed that which was reasonably sufficient.”[86]

The requirements presently imposed by section 26 are manifestly onerous,[87] convoluted,[88] and hedged,[89]insofar as the defence has been described by the public broadcaster as a “statutory dead letter” which fails to protect the liberty of expression of a defendant who has truly published fairly and reasonably on a matter of public concern.[90] In November 2016, Hogan J acknowledged that the defence had not yet ever been successfully mounted in a defamation case,[91] which remains true at the time of writing.

In respect of this defence, the Draft General Scheme importantly recommends the simplification of its criteria, with a view to facilitating its use by defendants whose publications are truly in the public interest.[92] In particular, it proposes reducing the existing section 26 criteria to proving three matters; (1) that the impugned statement relates to a matter of public interest, (2) that the defendant reasonably believed that its publication was in the public interest, and (3) that the defendant acted as it is reasonable to expect of a responsible journalist.[93] Given its improved clarity, implementation of this proposal is much anticipated.


  5. Online defamation and anonymity

The 2009 Act does not distinctly address the matter of online publication.[94] Section 2 merely incorporates “electronic communication” and internet publications within the definition of potentially defamatory publications. The transformative features of rapid, instantaneous dissemination and anonymous publication of content – which digital technology enables – are not addressed by the Act.[95] The general remedies provided fail to embrace the urgency with which an online defamatory statement must be removed, considering the sheer ease and speed with which it can circulate. Protracting such remedies risks magnifying the reputational damage the injured plaintiff suffers,[96] and, in some cases, renders it irreversible.[97]

The inefficacy characterising injunctions in this regard has, in fact, been subject to great criticism, particularly considering that damages may prove an empty remedy when an individual has been defamed online.[98] In such instances, rapid removal of the content by way of injunction is often prioritised.[99] The process of granting such injunctions, however, is considerably protracted when the defamatory statement in question has been published anonymously or under a pseudonym, as the publisher must be identified before the defamed plaintiff can begin to access relief in court.[100] In such cases, the court may grant a Norwich Pharmacal Order,[101] which compels the internet service provider to disclose the identity of the established wrongdoer,[102] so that he can be served with court orders or proceedings. The jurisdiction to grant such relief, however, is presently limited to the superior courts,[103] despite defamation cases being heard in both the Circuit and High Court.

The Draft General Scheme proposes extension of these powers to the Circuit Court. This reform is imperative, particularly given that pursuing Norwich Pharmacal relief in the High Court is disproportionately costly and burdensome, as described by Charleton J in EMI Records (Ireland) Ltd v. UPC Communications Ireland Ltd.[104]  In vindicating citizens’ rights to a good name, such reliefs should not be put beyond the reach of those who do not have the means to effectuate them.


   6. Financial restrictions to access to justice

Section 28(9)(a)(i) of the Civil Legal Aid Act 1995 classifies defamation (unless it arises by way of counterclaim)[105] as a “designated matter” which is expressly excluded from civil legal aid. However, the excessive costs incurred in defamation litigation in Ireland are considered prohibitive to prospective plaintiffs and defendants alike. On the one hand, defamed individuals lacking financial means are left unable to vindicate their right to a good name, and on the other, publishers may have to withdraw a statement rather than defend it, because they simply cannot afford to incur the litigation costs of a defamation action. This exerts a chilling effect on liberty of expression and buttresses the ECtHR’s finding that the blanket denial of legal aid in respect of defamation proceedings is unjust and violates the right to a fair hearing guaranteed by Article 6(1) of the ECHR.[106]

Disconcertingly, the Draft General Scheme proposes no reforms in this respect. Defamation action, together with the redress which may accompany it, should not be limited to those with financial means. Indeed, amendment of the 2009 Act to include a provision for the removal of defamation from the “designated matters” listed in section 28(9)(a)(i) of the Civil Legal Aid Act 1995, merits serious consideration.[107]


  7. Conclusions

Thirteen years since its inception, it is clear that the 2009 Act is in urgent need of reform. The imperative for reform extends beyond curbing its susceptibility to misuse by influential figures aiming to stifle legitimate criticism, and encompasses the broader goals of rendering redress financially accessible, proportionate, consistent, and expeditious. While the Draft General Scheme presents commendable strides in this direction, its shortcomings necessitate careful consideration. Navigating the intricate balance between competing Constitutional rights is challenging, yet paramount to crafting a defamation framework that serves both the protection of reputation and the preservation of unbridled public discourse.


[1] Article 40.6.1°i, first sub-paragraph (of the Constitution).

[2] McMahon and Binchy, Law of Torts (4th ed., Bloomsbury Professional, 2013), chapter 34, at [34.08].

[3] Defamation (Amendment) Bill 2017 (No. 102 of 2017) and Defamation (Amendment) Bill 2014 (No. 63 of 2014).

[4] Defamation Act 2009, s 2.

[5] Defamation Act 2009, s 28(3).

[6] Christopher McMahon, “Statutory Reform, Judicial Interpretation, and Libel Tourism – A Ticket from London to Dublin?” (2018) 1 Tort Law and Litigation Review 29, at 31.

[7] Defamation Act 2009, s 16(1).

[8] Courts Service Annual Report 2020, at 48.

[9] Christopher McMahon, note 6, at 41. See also; Eva Short, ‘Libel tourism’ and ‘untouchables’ put spotlight on Ireland’s defamation laws (visited January 12, 2024); Karyn Harty, Why a growing number of ‘libel tourists’ could be making their way to our shores (visited January 12, 2024); Shane Phelan, How Ireland’s draconian laws continue to entice libel tourists such as Tony Robbins (visited January 12, 2024), and Eoin O’Dell, Ireland: Is Dublin becoming the defamation capital of the world, the libel-tourism destination of choice? (visited January 12, 2024).

[10] European Commission, 2020 Rule of Law Report: Country Chapter on the rule of law situation in Ireland (European Commission, 2020) at 13.

[11] Christopher McMahon, note 6, at 29. See also; Andrew Scott, Cascading effort in defamation reform: four key themes (visited January 12, 2024), Mark Patrick Hanna, “The ‘chilling effect’ of defamation law in Northern Ireland? A comparison with England and Wales in relation to the presumption of jury trial, the threshold of seriousness and the public interest defence” (2021) 72 NILQ 1, and Carolin Anne Bayer, Re-thinking the common law of defamation: Striking a new balance between freedom of expression and the protection of the individual’s reputation (The University of British Columbia, 2001).

[12] Defamation Act 2013, s 1(1)

[13] Ibid., s 1(2).

[14] [2005] QB 946 at [40].

[15] [2010] EWHC 1414, at [61].

[16] Mark Patrick Hanna, note 11, at 11.

[17] Defamation and Malicious Publications (Scotland) Act 2021, s 1(2)(b), and Model Defamation Amendment Provisions 2020, s 2(1)(a).

[18] Draft General Scheme of the Defamation (Amendment) Bill, Head 4.

[19] Ibid.

[20] Ibid., Head 6.

[21] Bayer, Bárd, Vosyliute, and Luk, “Strategic Lawsuits Against Public Participation (SLAPP) in the European Union: A Comparative Study” (European Commission, 2021), at 222-223.

[22] Courts Service Annual Report 2021, at 118.

[23] See; McDonagh v. Sunday Newspapers [2017] IESC 59, a case in which the final decision was issued almost 18 years following the impugned publication.

[24] Mark Patrick Hanna, note 11, at 16.

[25] Eoin O’Dell, Ireland: Man wins ‘fleeting defamation’ case and is awarded €500, should the law of defamation really concern itself with such a trifle? (visited January 12, 2024).

[26] Courts Act 1988, s 1.

[27] McGonagle and Brody, “The Irish Defamation Act – too little too late?” (2010) 2 CL 43, at 46. See also; McMahon and Binchy, note 1, at [34.112].

[28] NewsBrands Ireland, Ireland’s Draconian Defamation Laws Must Be Reformed – It’s in The Public Interest (visited January 12, 2024).

[29] Ireland was almost ten times more costly than Italy, the third most expensive jurisdiction evaluated in the study. See; Troels Larson and Danilo Leonardi, “A Comparative Study of Costs in Defamation Proceedings Across Europe” (Programme in Comparative Media Law and Policy, University of Oxford, 2008), at 187.

[30] Defamation Act 2013, s 11.

[31] Troels Larson and Danilo Leonardi, note 26, at 189.

[32] Ibid.

[33] Barron & Ors. v. Collins [2017] EWHC 162 (QB), at 26.

[34] Note that Draft General Scheme does not discuss the prospect of introducing a statutory cap on damages or a book of quantum.

[35] Defamation Act 2009, s 31(8).

[36] Draft General Scheme of the Defamation (Amendment) Bill, Head 3.

[37] Bayer, Bárd, Vosyliute, and Luk, note 18, at 222. See also; McGonagle and Brody, note 24, and Furlong, Cole, O’Shiel, and Moran, Irish Defamation Laws: An All-Island approach (visited January 12, 2024).

[38] McGonagle and Brody, note 24; Furlong, Cole, O’Shiel, and Moran, note 31.

[39] Ibid.

[40] NewsBrands Ireland, note 25.

[41] Defamation Act 2009, s 31.

[42] See; Higgins v Irish Aviation Authority [2020] IECA 157; [2018] IESC 29, wherein a €387,000 jury award was reduced on appeal to €76,500 as it was deemed to be “so unreasonable as to be disproportionate to the injury sustained”, despite the jury being guided as to the reasoning behind landmark defamation awards, and levels of damages granted in very serious personal injuries.

[43] Kinsella v. Kenmare Resources Plc [2019] 2 IR 750.

[44] Leech v. Independent Newspapers (Ireland) Limited [2015] 2 IR 214.

[45] McDonagh v. Sunday Newspapers Limited [2015] 10 JIC 1904.

[46] [2019] 2 IR 750.

[47] [2015] IECA 225; 10 JIC 1904.

[48] European Commission, note 10.

[49] Sean Murray, Defamation laws 'seen as an inducement to self-censorship' for media in Ireland, EU commissioner says (visited January 12, 2024).

[50] European Commission, note 10.

[51] Independent Newspapers (Ireland) Limited v. Ireland App no 28199/15 (ECtHR, 15 June 2017).

[52] Ibid.

[53] Reporters Without Borders, Ireland (visited January 12, 2024).

[54] Adam Daly, Ireland warned its highly concentrated media ownership is 'single largest threat to press freedom' (visited January 12, 2024).

[55] Jessica Ní Mhainín, A gathering storm: the laws being used to silence the media (visited January 12, 2024), at 10.

[56] Bayer, Bárd, Vosyliute, and Luk, note 18, at 221.

[57] Karl Sweeney, Defamation Act 2009 Overview (visited January 12, 2024).

[58] Leech v. Independent Newspapers (Ireland) Limited [2015] 2 IR 214.

[59] Independent Newspapers (Ireland) Limited v. Ireland App no 28199/15 (ECtHR, 15 June 2017), at [105].

[60] Mark Tighe, RTE demands legal reform over soaring costs of defamation (visited January 12, 2024). See also; Neville Cox, Ireland can remove the chill factor from defamation laws - and protect citizens' good names (visited January 12, 2024).

[61] Furlong, Cole, O’Shiel, and Moran, note 31.

[62] Andrew Scott, Cascading effort in defamation reform: four key themes (visited January 12, 2024).

[63] Defamation Act 2009, s 16.

[64] Defamation Act 2009, s 27.

[65] Defamation Act 2009, s 26.

[66] Defamation Act 2009, s 20.

[67] Defamation Act 2009, s 22.

[68] Defamation Act 2009, s 24.

[69] Defamation Act 2009, s 25.

[70] Defamation Act 2009, s 17.

[71] Defamation Act 2009, s 18.

[72] McMahon and Binchy, note 1, at [34.19].

[73] T. John O'Dowd, “Ireland’s New Defamation Act” 1 Journal of Media Law 176, at 174.

[74] McMahon and Binchy, note 1, at [34.104].

[75] Cox and McCullough, Defamation: Law and Practice (Clarus Press, 2014).

[76] Neville Cox, Ireland can remove the chill factor from defamation laws - and protect citizens' good names (visited January 12, 2024).

[77] Steel and Morris v. UK App no. 68416/01 (ECtHR, 2005).

[78] Wall St Journal Europe v. UK App no. 28577/05 (ECtHR, 2009).

[79] Law Reform Commission, Report on Civil Law of Defamation, at 56.

[80] [1986] 475 US 767.

[81] Bayer, Bárd, Vosyliute, and Luk, note 18, at 223.

[82] Pedersen & Anor. v Denmark App no 49017/99 (ECtHR, 17 December, 2004), at [71].

[83] McGonagle and Brody, note 24, at 45.

[84] Defamation Act 2009, s 26(1)(c).

[85] Defamation Act 2009, s 26(1)(a).

[86] Defamation Act 2009, s 26(1)(b).

[87] McGonagle and Brody, note 24, at 45.

[88] Neville Cox, “Recent developments in Irish defamation law” (2018) 1 Tort Law and Litigation Review 47, at 55.

[89] T. John O'Dowd, note 69, at 187.

[90] Bayer, Bárd, Vosyliute, and Luk, note 18, at 223.

[91] Meegan v. Times Newspapers Ltd [2017] IECA 327; [2016] 11 JIC 0907, at [10].

[92] Christopher McMahon, note 6, at 35.

[93] Draft General Scheme of the Defamation (Amendment) Bill, Head 16.

[94] Law Reform Commission, Privilege for reports of court proceedings under the Defamation Act 2009 LRC 121 – 2019 at [1.10].

[95] Law Reform Commission, Harmful communications and digital safety LRC 116 – 2016 at [3.23-3.27].

[96] McMahon and Binchy, Law of Torts (4th ed., Bloomsbury Professional, 2013) at [34.11].

[97] Tansey v. Gill [2012] IEHC 42; [2012] 1 JIC 3108, at [25].

[98] Ibid., at [24].

[99] Law Reform Commission, note 90, at 126.

[100] David Culleton, “The Law relating to Norwich Pharmacal Orders” [2021] 5 Irish Judicial Studies Journal 20, at 20.

[101] Norwich Pharmacal Co v. Customs and Excise Commissioners [1974] AC 133.

[102] Furlong, Cole, O’Shiel, and Moran, Irish Defamation Laws: An All-Island approach (visited January 12, 2024).

[103] Megaleasing UK Ltd v. Barrett (No 2) [1993] ILRM 497.

[104] [2010] IEHC 377; [2010] 10 JIC 1101, at [62].

[105] Civil Legal Aid Act 1995, s 28(9)(b).

[106] Steel & Morris v. UK (2005) 41 EHRR 22.

[107] Civil Legal Aid Act 1995, s 28(9)(a)(i).


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