Defamation (Amendment) Act 2026
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PART 7 Additional Provisions Regarding Defamation Proceedings Relating to Engagement in Public Participation | ||
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Insertion of Part 4A into Principal Act | ||
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19. The Principal Act is amended by the insertion of the following Part after Part 4: | ||
“PART 4A | ||
ADDITIONAL PROVISIONS REGARDING DEFAMATION PROCEEDINGS RELATING TO ENGAGEMENT IN PUBLIC PARTICIPATION | ||
Definitions (Part 4A) | ||
34A. In this Part, unless the context otherwise requires— | ||
‘abusive court proceedings against public participation’ means defamation proceedings or part thereof that pursue unfounded claims and that are not brought to genuinely assert or exercise 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, including but not limited to— | ||
(a) where a claim is of a disproportionate, excessive or unreasonable nature, | ||
(b) the existence of multiple proceedings initiated by the plaintiff or associated parties in relation to similar matters, | ||
(c) intimidation, harassment or threats on the part of the plaintiff or his or her representatives, before or during the proceedings, as well as similar conduct by the plaintiff in similar or concurrent cases, or | ||
(d) the use in bad faith of procedural tactics, such as delaying proceedings, fraudulent or abusive forum shopping or the discontinuation of cases at a later stage of the proceedings in bad faith; | ||
‘claim’ includes part of a claim; | ||
‘defamation proceedings’ means— | ||
(a) an application under section 33 for an order to prevent the publication of an alleged defamatory statement, | ||
(b) a defamation action, or | ||
(c) a claim for other relief under this Act in respect of an alleged defamatory statement, | ||
whether brought as a claim or a counter-claim; | ||
‘Directive (EU) 2024/1069’ means Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 20242 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’); | ||
‘matter of public interest’ means any matter that affects the public to such an extent that the public may legitimately take an interest in it, in areas such as— | ||
(a) fundamental rights, public health, safety, the environment or the climate, | ||
(b) activities of a person who is a public figure in the public or private sector, having regard to the right to privacy of an individual, | ||
(c) matters under consideration by a legislative, executive, or judicial body, or any other official proceedings, | ||
(d) allegations of corruption, fraud, or of any other criminal offence, or, where relevant to defamation proceedings coming within the scope of Directive (EU) 2024/1069, of administrative offences in a place other than the State, in relation to such matters, or | ||
(e) where relevant to defamation proceedings coming within the scope of Directive (EU) 2024/1069, activities aimed at protecting the values enshrined in Article 2 of the Treaty on European Union, including the protection of democratic processes against undue interference, in particular against disinformation; | ||
‘public participation’ means the making of any statement or the carrying out of any activity by a person in the exercise of the right to freedom of expression and information, freedom of the arts and sciences, or freedom of assembly and association, and any preparatory, supporting or assisting action directly linked thereto, and which concerns a matter of public interest. | ||
Defamation proceedings to which Part applies | ||
34B. This Part applies to defamation proceedings relating to the engagement by a person in public participation, including those falling within the scope of Article 2 of Directive (EU) 2024/1069. | ||
Information to be given to court | ||
34C. Where defamation proceedings have been initiated against a defendant and he or she is of the view that they— | ||
(a) have been initiated on account of his or her engagement in public participation, and | ||
(b) fall within the scope of Article 2 of Directive (EU) 2024/1069, | ||
the defendant shall so inform the court. | ||
Security for costs | ||
34D. Where a defendant in defamation proceedings relating to his or her engagement in public participation makes an application, in accordance with law, for security for costs in the context of those proceedings, the court shall, in determining the application, act as expeditiously as possible consistent with the administration of justice. | ||
Application to strike out claim and appeal | ||
34E. (1) Where a defendant in defamation proceedings relating to his or her engagement in public participation makes an application to the court, in accordance with law, to strike out the claim as being manifestly unfounded— | ||
(a) the court shall, in determining the application, and | ||
(b) where an appeal is brought against the determination of the application, the court that hears and determines the appeal shall, | ||
act as expeditiously as possible consistent with the administration of justice. | ||
(2) In this section, ‘manifestly unfounded’, in relation to a claim, includes where— | ||
(a) the indorsement or pleading— | ||
(i) is unnecessary, | ||
(ii) is an abuse of the process of the court, or | ||
(iii) in the case of an interim or interlocutory application, may unreasonably prejudice or delay the fair trial of the action, | ||
(b) the claim— | ||
(i) discloses no reasonable cause of action, | ||
(ii) amounts to an abuse of the process of the court, | ||
(iii) is bound to fail, or | ||
(iv) has no reasonable chance of succeeding, | ||
or | ||
(c) the statement in respect of which the proceedings have been brought is not reasonably capable of being found to have a defamatory meaning in accordance with section 34(2). | ||
Application for declaration where application to strike out claim | ||
34F. (1) Where a defendant in defamation proceedings relating to his or her engagement in public participation makes an application referred to in section 34E(1), he or she may also make an application, on notice to the plaintiff in those proceedings, for a declaration by the court that the proceedings or part thereof amount to abusive court proceedings against public participation. | ||
(2) Where a court makes a declaration under subsection (1) that the defamation proceedings or part thereof amount to abusive court proceedings against public participation, the court shall, insofar as it considers appropriate, take the declaration into account when making an award of costs or any other order providing for the payment of costs and may, if it thinks fit, order the costs to be paid as between legal practitioner and client or on a legal practitioner and own client basis. | ||
Application for declaration before, during or at conclusion of trial of action and costs | ||
34G. (1) In defamation proceedings against a defendant relating to his or her engagement in public participation, he or she may, before, during or at the conclusion of the trial of the action, make an application, on notice to the plaintiff in those proceedings, for a declaration by the court that the proceedings or part thereof amount to abusive court proceedings against public participation. | ||
(2) Where the court makes a declaration under subsection (1) that the proceedings or part thereof amount to abusive court proceedings against public participation, the court shall— | ||
(a) insofar as it considers appropriate, take the declaration into account when making an award of costs or any other order providing for the payment of costs and may, if it thinks fit, order the costs to be paid as between legal practitioner and client or on a legal practitioner and own client basis, and | ||
(b) when making an award or order referred to in paragraph (a), act as expeditiously as possible consistent with the administration of justice. | ||
Order for damages in case of section 34F or 34G declaration | ||
34H. (1) Where— | ||
(a) the court makes a declaration under section 34F or 34G that the defamation proceedings concerned or part thereof amount to abusive court proceedings against public participation (in this section referred to as the ‘declaration’), and | ||
(b) the defendant in those proceedings (in this section referred to as the ‘defendant’) makes an application to the court, whether before or after the making of the declaration, on notice to the plaintiff in those proceedings (in this section referred to as the ‘plaintiff’), for an order for the payment of damages by the plaintiff to the defendant under this section, | ||
the court may, in addition to the making of the declaration and in its absolute discretion, order the plaintiff to pay damages to the defendant as a result of injury, loss or damage suffered by the defendant consequent upon the bringing of the proceedings or part thereof the subject of the declaration. | ||
(2) In deciding whether to make an order under subsection (1), and, where applicable, in determining the amount of any damages to be paid, the court shall have regard to all of the circumstances of the case and the interests of justice, and may take into account the following matters as it considers appropriate: | ||
(a) the nature of the public participation concerned; | ||
(b) the purpose or purposes for which the defamation proceedings or part thereof the subject of the declaration (in this subsection referred to as the ‘proceedings’) were brought relating to the defendant’s engagement in public participation; | ||
(c) the conduct of the proceedings; | ||
(d) any other factors leading to the making of the declaration; | ||
(e) whether the declaration has been made under section 34F or 34G; | ||
(f) whether the declaration relates to all or part of the proceedings; | ||
(g) the injury, loss or damage suffered by the defendant as a result of the bringing of the proceedings (including, where appropriate, the threat of such proceedings) and any mitigating factors. | ||
(3) Where an application for an order for the payment of damages is made under subsection (1)(b)— | ||
(a) the plaintiff and the defendant may make submissions to the court and adduce evidence, and | ||
(b) the court may direct that evidence be given, | ||
in relation to the application. | ||
(4) Where the court makes an order for the payment of damages to a defendant under this section, the court may, if it considers it appropriate to do so, apply the provisions of section 34F(2) or 34G(2), as the case may be, to costs incurred as a result of an application made by the defendant under subsection (1)(b). | ||
(5) The damages recoverable under this section in the Circuit Court shall not exceed the amount standing prescribed, for the time being by law, as the higher of any limit of that Court’s jurisdiction in tort. | ||
(6) The Personal Injuries Assessment Board Act 2003 shall not apply in relation to an application under subsection (1)(b). | ||
(7) This section shall not affect the operation of sections 31 and 32. | ||
Publication of certain judgments and court orders | ||
34I. Where a court finds in the course of defamation proceedings that the proceedings are abusive court proceedings against public participation, the court shall direct that any written judgment of the court or, in the absence of a written judgment of the court, any order of the court, related to that finding, shall be published on the website of the Courts Service where practicable and as soon as so practicable.”. | ||