Karyn Harty

Earlier this year, Newsbrands Ireland, the group representing many of Ireland’s newspaper titles, launched a campaign calling for reform of Ireland’s defamation laws, which it said are among the most restrictive in Europe and throughout the English-speaking world. Last month, in a case involving a high-profile divorce, the Supreme Court in the UK reinforced the growing differences in how the UK and Irish courts deal with defamation, by raising the bar for plaintiffs to show that they have suffered “serious harm” as a result of the statement.

This move is likely to lead to an increase in the already growing trend of libel tourism to Ireland, where people choose to sue in Ireland rather than their own home countries where protection of freedom of expression is believed to be stronger. This has gathered pace since 2013 when defamation laws in the UK were reformed to introduce this “serious harm” threshold, which in theory would make it harder to bring a claim.

By contrast, in Ireland there is no requirement that a plaintiff proves they in fact suffered damage.

The UK fundamentally reformed its approach to defamation in 2013. The existing law was seen as outdated in a world of new forms of digital media and was also believed to favour the protection of reputation over freedom of expression, something which had led to London being called the “libel capital of the world”.

At the time, then-justice minister Shailesh Vara said the legislation would reverse the chilling effect previous libel laws had on freedom of expression and legitimate debate by offering “stronger protection against unjust and unfair threats of legal action to anyone engaging in public debate” and “make it harder for wealthy people or companies to bully or silence those who may have fairly criticised them or their products”. The law also targeted libel tourism directly by requiring claimants to prove that England and Wales is clearly the most appropriate place to bring an action.

The recent case arose out of media coverage of the high-profile divorce of Bruno Lachaux, a French aerospace engineer living in the United Arab Emirates, and his British wife.

A number of British newspapers published allegations that he had been abusive towards his wife, had confiscated his son’s passport and had tried to use the courts in the UAE to his advantage in the divorce proceedings. Until now, it was presumed that the serious harm threshold was met if the statement had a tendency to cause serious harm. The UK Supreme Court has now clarified that people complaining of defamation must point to the actual facts of the impact of the defamatory statement and it is no longer sufficient to rely simply on the meaning of the words as proof of serious harm.

This is starkly different to the low threshold of proof required in Ireland.

The newspapers Mr Lachaux was suing had argued that the statements published were not defamatory because they did not meet the “serious harm” test. The Supreme Court took a different approach to earlier decisions, finding that Mr Lachaux had proven “serious harm” based on evidence which included the meaning of the words, but also his situation, the circumstances of publication and the likely implications for him.

Crucially, the Supreme Court found that whether the test of “seriousness” had been met required it to look at the actual facts surrounding the case, and not just the plain meaning of the statement complained of.

While this judgment has no immediate implications for Irish defamation cases, it is a clear reminder of the growing differences in approach between the two jurisdictions.

Non-jury defamation actions are now the default position in England and Wales, although they can be involved in exceptional cases. But the jury remains central to defamation in Ireland and there is no immediate prospect of this changing, when the right to a good name and freedom of expression are enshrined equally in the Constitution.

The 2018 Courts Service Annual Report, published this week, showed further significant increases in the number of defamation claims in the courts, with the total number of claims taken increasing from 287 in 2017 to 298.

Claims in the more expensive High Court increased from 152 in 2017 to 186 cases last year, although the number in the lower-cost Circuit Court decreased from 135 in 2017 to 112 last year. The Government completed a review of the Defamation Act 2009 in April this year, though it has not yet been published.

It looked at the roles of judge and jury in defamation cases; the defences available to the media in public-interest news reporting; and the level of damages which can be awarded by Irish courts in defamation cases. While checks on very high damages awards are becoming more frequent, damages overall are consistently higher and there seems little prospect of any reversal of the burden of proof given the constitutional position.

• Karyn Harty is partner in dispute resolution and litigation at McCann FitzGerald. This article first appeared in the Irish Independent.