The truth carriers

The Defamation (Amendment) Act was signed into law on 19 February 2026 – though not all of it has been commenced. Michael Kealey reports from the battlefield, outlining what the new legislation heralds for free speech

In one of her first such acts, President Catherine Connolly signed the Defamation (Amendment) Act into law on 19 February 2026. Six days later, Justice Minister Jim O’Callaghan commenced most, but not all, of the legislation from 1 March 2026.

The statute’s stated purpose is to update the Defamation Act 2009 and to give effect to the EU Anti-SLAPP Directive (2024/1069) insofar as it relates to defamation proceedings. Its reforms include:

• The abolition of juries in High Court defamation cases (section 4),
• A statutory jurisdiction for the Circuit Court to make orders requiring the identification of anonymous posters of defamatory material (section 22),
• An amended and simplified defence for publication in the public interest, replacing section 26 of the 2009 act (section 11),
• Statutory defences for live broadcasting (section 13) and ‘retail defamation’ cases (section 8),
• The introduction of a ‘serious harm’ test for bodies corporate (section 6),
• Obligations on solicitors to advise clients on alternative dispute-resolution methods prior to issuing proceedings (section 21), and
• Provisions seeking to prevent abusive proceedings against public participation (SLAPPs), including early dismissal, security for costs, and the ability of targets of SLAPP proceedings to seek declarations, costs orders, and damages (section 19).

Judge and jury

All High Court defamation proceedings issued after 1 March 2026 will be heard by a judge sitting alone. This is already the case in the Circuit Court, where judges can make awards of up to €75,000.

The act is not retrospective.

In all cases issued before 1 March 2026, either party to the litigation can insist upon the trial taking place before a jury (order 36, rule 6 of the Rules of the Superior Courts).

Advocates of the removal of civil-jury trials believe that the change will bring greater efficiency and speed to defamation actions, and more transparency and consistency in decision-making. It is also hoped that it will reduce costs.

Identification orders

Many allegedly defamatory internet postings are made either anonymously or using fake names.

For many years, the High Court has made Norwich Pharmacal orders obliging intermediary service providers and social-media companies to hand over information that can lead to the identification of posters.

The 2026 act gives that power to the Circuit Court.

As is the case with similar applications involving non-parties to litigation, the Circuit Court has a wide discretion on the awarding of costs – section 22 makes it explicit that, where appropriate, it may order an applicant to pay the intermediary service provider the costs, both of the application and of complying with it.

Nonetheless, the Government hopes that extending this power to the Circuit Court will make such applications cheaper and more accessible.

Publication in the public interest

In 1994, in proceedings involving former Taoiseach Albert Reynolds, the UK House of Lords recognised that, in certain instances, the duty of the media to inform the public on matters of public interest outweighed the rights of individuals about whom defamatory statements were made.

It was a form of qualified privilege.

To establish whether the press had acted responsibly, Lord Nicholls laid down ten non-exclusive factors to be considered. These were then largely, but not identically, set out in section 26 of the Defamation Act 2009.

However, there has been a widespread lack of confidence on the part of media defendants about the effectiveness of section 26. Indeed, in the years since the 2009 act, the defence was never successfully run in a High Court trial.

The 2026 act seeks to simplify the defence and make it adaptable to change.

The defendant must now prove that the publication was fair, in that it was on, and was reasonably believed to be on, a matter of public interest, and that it was published in good faith.

The requirement of ‘fairness’ was only introduced by the Minister for Justice after the Seanad debates. It will be interesting to see how that impacts upon the operation of the defence in practice.

Live broadcasting

The act gives a new defence to the media where a contributor on a ‘live’ broadcast makes a defamatory statement, but the broadcaster has taken reasonable and prudent precautions, before and during the programme, to prevent that occurring.

A Government amendment at report stage made clear that a broadcaster would not lose the defence if there was a short delay in the broadcast of a ‘live’ programme.

Section 13 sets out examples of matters to be taken into account when deciding if reasonable and prudent precautions had been taken.

These include the overall management of the programme in question and the level of effective control that the broadcaster could reasonably be expected to exercise over the contributor.

‘Retail defamation’

While companies will remain able to bring defamation proceedings, they can now only do so successfully where there has been serious harm to their reputation, in that the publication has caused, or is likely to cause, serious financial loss.

The retail and banking industries have long called for a serious-harm test in cases involving them.

However, after concerns had apparently been raised by the Office of the Attorney General about the impact of such a test on the constitutional right of access to justice, this was not included in the legislation.

Rather, a statutory defence will be afforded to retailers where the alleged defamation consists of an inquiry as to whether a person has paid for goods or services, or where the proffered means of payment was not accepted.

However, the inquiry must not have been published excessively and there must be a duty or interest in making it.

This ‘new’ defence looks very similar to the one of qualified privilege previously enjoyed by retailers and it remains to be seen what, if any, practical effect it has.

Solicitors and ADR

Solicitors must now, prior to issuing proceedings in cases involving the media, advise clients on the availability and costs implications of the alternative dispute-resolution methods employed by the Press Council and by the exercise of a ‘right to reply’ under the Broadcasting Act 2009.

Solicitors must also, when issuing proceedings in such cases, make a statutory declaration that such advice has been given.

SLAPP down?

SLAPPs are a form of abusive litigation that are used by powerful claimants with the aim of suppressing critical reporting on matters of public interest.

Claimants are often wealthy companies or individuals who target journalists, whistleblowers, academics, and NGOs.

In April 2024, the EU Anti-SLAPP Directive was issued. Member states have until 7 May 2026 to transpose it into their own legal systems.

SLAPPs are defined in the 2026 act as: “Unfounded claims … that are not brought to genuinely assert a right but that have as their main purpose the prevention, restriction or penalisation of public participation, frequently exploiting an imbalance of power between the parties…”

They include claims that are of a disproportionate, excessive or unreasonable nature, which involve harassment or threats by plaintiffs or their representatives, and where procedural tactics, such as a delay in progressing the litigation, are used in bad faith.

The anti-SLAPP measures in the act include:

• Accelerated strike-out applications for proceedings that are alleged to be manifestly unfounded (section 34E),
• Expeditious applications by defendants for security for costs (section 34D),
• Declaratory relief identifying unfounded and abusive proceedings as a SLAPP (section 34F(1)),
• A provision for the court to award costs (on a solicitor-and-own-client basis, if appropriate) where the court has declared the proceedings to be a SLAPP (section 34F(2)), and
• The ability for targets of proceedings declared to be a SLAPP to seek damages (section 34H).

There has been some criticism that the 2026 act does not cover other forms of litigation that can be used as a SLAPP, and which are covered by the directive.

These include breach of privacy, confidentiality, and data protection.

To counteract such criticism, the Minister for Justice recently published a general scheme of the Strategic Lawsuits Against Public Participation Bill, which mirrors the provisions in the act in respect of other civil and commercial proceedings.

The anti-SLAPP provisions of the act have not been commenced by the ministerial order of 25 February 2026.

This is to allow for the passage of the Strategic Lawsuits Against Public Participation Bill through the Oireachtas and for the implementation of the defamation and non-defamation aspects of the EU directive at the same time.

Concerns have been expressed about the likely effectiveness of the anti-SLAPP provisions in the act in the absence of a serious-harm test for individuals.

The tort of defamation is actionable per se. Damage is presumed. Generally, therefore, the viability of a defamation claim is established by reference only to the meaning of the words in an allegedly defamatory statement, and does not include a consideration of the seriousness of the harm done.

This makes Ireland an attractive jurisdiction for both foreign and domestic claimants.

It also increases the obstacles in the way of defendants who believe they are the target of a SLAPP.

The presumption of harm means they must show to the satisfaction of the court that the proceedings are manifestly unfounded or abusive, when there is no parallel obligation on the plaintiff to show that they have been damaged.

It may well be difficult for defendants to discharge these high burdens of proof.

Indeed, it can be argued – with considerable force – that much of the damage caused to public discourse by SLAPPs would be ameliorated by the introduction of a general serious-harm test, such as is currently in place in England and Wales.

This was a missed opportunity in the 2026 act.

Correct balance?

Any legislation on defamation will have to balance and safeguard the right to freedom of expression with the protection of a person’s good name and the right of access to justice. The 2026 act has the additional aim of reducing legal costs and delays.

The fact that advocates for both plaintiffs and defendants are disappointed with aspects of the act might mean that the correct balance has been struck.

However, that remains an open question.

Michael Kealey is a media lawyer and former in-house solicitor for a large press organisation.