Flawed act puts 'cement boots' on press – McDowell

A conference has heard strong criticism of elements of new defamation legislation, with Senator Michael McDowell SC telling the event that it provides “nothing” to defend citizens against defamatory comments on social media.

Reforms to defamation law were debated by a panel at The Defamation Amendment Act 2026: The Jury’s Out (14 April), hosted by the Media, Internet and Data Protection Bar Association (MIDBA). 

Overall the conclusion was not positive, with Declan Doyle SC telling the event at the Bar Council: “There's nothing in this act for plaintiffs. It is a perfect case of be careful what you wish for.”

On the question of jury abolition, comparative experience from England and Wales was discussed by Ben Hobbs, partner in Schillings International, and co-founder of Schillings Ireland, who noted that, although jury trials technically remained available under the Defamation Act 2013, they were now rarely used in practice. 

The decline in juries had not significantly reduced costs or the volume of litigation, but had altered case management, with greater reliance on preliminary hearings and issue-based determinations, the event heard. 

Senator McDowell suggested that the change had been driven more by sustained media criticism than by empirical evidence. 

Perceptual value

The former AG and Minister for Justice emphasised the constitutional and perceptual value of juries in defamation actions, particularly in countering allegations of judicial bias. 

Declan Doyle SC observed that concerns about jury unpredictability — particularly in the assessment of damages — had already been mitigated through the development of judicial guidelines, reducing the practical necessity for reform.

Regarding the introduction of a ‘serious harm’ test, it was noted that the requirement to establish ‘serious harm’ (and, in the case of corporate plaintiffs, serious financial loss) would likely raise the threshold for claims. 

Ben Hobbs explained that the test was highly fact-sensitive and required evidence of real-world impact rather than mere reputational upset. 

Quantifying reputational damage

Jennifer Goode BL reflected that difficulty proving serious financial loss and quantifying reputational damage may discourage smaller businesses in particular and affect decisions about whether and who to sue.

Speaking about the new statutory retail defence, Goode said that its practical impact was likely to be limited.

Codification

Disputes would continue to turn on factual questions of what was said and how it was expressed; the question of fact and degree would remain: “so this is just effectively codification," she said.

With regard to the revised public-interest defence which replaces section 26 of the Defamation Act 2009, which he drafted, Senator McDowell focused on the use of the term “dispute”.

While the new defence requires that publication be “fair in all the circumstances”, he argued that section 11 (1) subsection (3) — which applies to “an accurate and impartial account of a dispute”— effectively permitted publication without verification of the underlying allegation, as many things could be categorised as a “dispute”. 

Gross injustice in law

The former Minister for Justice, Equality and Law Reform expressed concern that, in such circumstances, the court would be precluded from examining whether reasonable steps had been taken to verify the allegation, a development he described as a “radical, radical step” and “a gross injustice in law”.

Declan Doyle SC agreed, suggesting that the reform amounted in substance to the introduction “by the back door” of a form of reportage defence akin to that recognised in British jurisprudence. 

By contrast, Hobbs observed that in Britain, reportage arose only rarely in practice, typically in the context of “fair and accurate reports” of ongoing disputes, and that the public-interest defence — while “a useful defence” — was often unattractive to media defendants because it placed “their journalism on trial”.

This required disclosure and scrutiny of editorial processes, sources, and research.

Procedural burdens

Jennifer Goode warned that the live-broadcast defence would entail significant procedural burdens.

And, in circumstances where adequate records were not maintained, a defendant could be left with “no defence whatsoever”. 

She added that the provision necessitated detailed vetting and risk assessment of participants, raising concerns about intrusive internal processes and the creation of discoverable documentation.

Senator McDowell said that the reform had been “demanded” by media organisations but would likely be regretted, as it would require either delay mechanisms or pre-recording, effectively placing “cement boots on themselves”.

The proposed provisions addressing Strategic Lawsuits Against Public Participation (SLAPPs) were described as procedurally complex and, in some respects, unclear. 

Jennifer Goode highlighted the unusual obligation on defendants to notify the court where proceedings were considered to constitute a SLAPP without any guidance as to timing or procedure. 

Overlapping mechanisms 

She added that the legislation also introduced multiple overlapping mechanisms, including applications to strike out and applications for declaratory relief, raising concerns that the regime might complicate rather than streamline proceedings.

McDowell characterised the provisions as a flawed transposition of an EU directive, describing the drafting as “appallingly general” and noting that its scope had expanded beyond defamation to encompass “all litigation in Ireland”. 

This represented a significant and largely unexamined extension of the concept of abuse of process, with the potential to generate substantial additional litigation.

Finally, the act’s treatment of online defamation was identified as a missed opportunity. 

Defamatory social media

McDowell observed that social media represented “possibly the most defamatory medium at the moment”, yet the legislation provided “nothing in terms of defence of the citizen”. 

He was particularly critical of the reliance on the Norwich Pharmacal procedure, describing it as “madness” in circumstances where victims might incur costs liabilities and face protracted, multi-stage applications, while platforms continued to characterise themselves as “a mere conduit”.

Onion layers

Ben Hobbs, again drawing on experience in Britain, noted the practical limitations of such orders, which often involved “peeling the layers of an onion”, with repeated applications yielding little progress in identifying anonymous users. 

Platforms, he observed, typically did not resist disclosure but maintained that they were “not on notice” as to falsity, making it difficult to impose liability.

In practice, he suggested, “the only real effective remedy is against the platforms” themselves.