ISME has warned that the Defamation (Amendment) Bill 2024 threatens free speech and press freedom by failing to protect journalists, satirical content, and public discourse.
In an email sent to all TDs this week, Neil McDonnell, Chief Executive of the Irish Small and Medium Enterprises Association (ISME), urged deputies to oppose the bill unless it is significantly amended to safeguard free expression.
“This Wednesday evening, you will be asked to vote through a deeply flawed Defamation (Amendment) Bill 2024,” McDonnell wrote.
“While we in ISME have previously welcomed some aspects of this bill, it is seriously defective as currently written.”
McDonnell highlighted the bill’s failure to protect comedic and satirical content, describing it as a sign of Ireland’s weak commitment to free speech.
“There is no protection for comedic or satirical content,” he remarked.
“This is a sure sign we are not committed to genuine free speech.”
The email also noted the omission of promised reforms to Section 26, which would have strengthened the “fair and reasonable publication” defence for journalists.
“The Section 26 ‘fair and reasonable publication’ reform…has been removed,” McDonnell said.
“Journalists will not be protected by the amended act.”
McDonnell further criticised inadequate protections against Strategic Lawsuits Against Public Participation (SLAPPs), legal actions often used to silence critics through costly litigation.
“The anti-SLAPP protections are inadequate,” he wrote.
“They do not conform with the EU Anti-SLAPP Directive, which must be transposed into Irish law by May 2026.”
SLAPPs typically involve powerful individuals or entities filing defamation lawsuits to intimidate journalists, activists, or businesses into retracting statements or halting public discourse.
The EU Anti-SLAPP Directive, which Ireland must implement by May 2026, sets standards for protecting public participation from abusive lawsuits.
McDonnell expressed concern that victims of sexual assault and rape remain vulnerable to defamation threats from perpetrators, further chilling their ability to speak out.
“Victims of sexual assault and rape will continue to be threatened by perpetrators with defamation actions,” he added.
McDonnell also pointed to other shortcomings in the bill that exacerbate its impact on free speech, including the absence of a harm test.
“There is no harm test,” he said.
“People who have suffered no injury to their good name can continue to sue for defamation.”
He highlighted the lack of a cap on general damages, noting that Supreme Court guidelines are misaligned with Judicial Council personal injury guidelines and European norms.
“There is no cap on general damages,” McDonnell stated, adding that “the Supreme Court guidelines on damages are completely out of touch with the Judicial Council guidelines on personal injuries, and with European norms.”
The email criticised the removal of the “transient retail defamation” test promised in the 2023 Draft General Scheme, replaced with a qualified privilege defence that McDonnell argued would fail to address systemic retail defamation issues and increase legal costs for small businesses.
“The ‘qualified privilege’ defence…will do nothing to prevent our systemic problem with retail defamation but will increase legal fees,” he said.
The absence of measures to prevent minor defamation cases from being appealed to the Supreme Court was another concern, as plaintiffs face no financial risk, further threatening free expression through prolonged legal battles.
“A minor retail defamation case can be appealed to the Supreme Court by a plaintiff who will never pay their legal fees if they lose,” McDonnell said.
McDonnell described the bill as a concession to the legal industry, which he claimed profits from Ireland’s high defamation litigation rates.
“This bill is a sop to the legal industry, which wants to maintain the astronomical levels of defamation litigation in Ireland – 19 times the level in England and Wales per capita,” he stated.
He argued that the legislation fails to meet the standards set by the European Court of Human Rights, particularly regarding protections for free speech and press freedom.
“It does not reach the threshold of reform required by the European Court of Human Rights,” McDonnell said.
ISME’s position paper, referenced in the email, calls for amendments including a statutory serious harm test, a €75,000 cap on general damages, stronger anti-SLAPP measures to protect free expression, and explicit protections for satirical content.
“In the event it cannot be amended in line with our attached position paper, we ask you to oppose it,” McDonnell urged TDs.
Ireland’s defamation litigation rate is the highest per capita in the common law world, at 144% of the volume in England and Wales, according to ISME’s position paper.