– The media is but a small subset of larger defmation problems facing small business.
– Retail sector being told to let thieves steal, rather than face costly defamation action.
– European Court of Human Rights previously told Ireland that our defmation regime was problematic.
– ISME suggest reforms be enacted to protect those with lesser means from rich litigants who vexatiously drag others through defamation proceedings.
ISME welcomes the promise by Justice Minister Charles Flanagan to publish reforms to the Defamation Act in March 2020. His announcement was made at a conference in the Royal Irish Academy on 14th November.
Unfortunately, the focus of the conference was on defamation in the media, which is but a small subset of a large and fast-growing problem for small business.
Defamation actions against small businesses are rampant. This has become a specialist area of litigation for some solicitors who are advertising their services to clients ‘wrongly accused’ of (for example) Shoplifting; Driving from a fuel forecourt without paying; Leaving a restaurant without paying; Paying for goods with a counterfeit note; or Refusal of admission to premises or refusal to serve on premises.
Defamation actions are now so frequent in the retail sector, that many small shop owners are being advised there is no ‘safe script’ to use with someone they suspect of shop lifting. They are being told to let thieves steal goods and bar them from returning, as the theft will usually cost far less than the €7,000 to €10,000 settlement which typically follows asking someone to open their shopping bag or to show a sales receipt.
The European Court of Human Rights declared in 2017 that the level of damages paid in defamation actions in Ireland were not ‘necessary in a democratic society.’
Earlier this year ISME asked Minister Flanagan to amend our blatantly unjust defamation laws as follows:
– The defamation alleged must be material and demonstrable.
– It must cause serious harm to the plaintiff.
– The plaintiff must set out the quantum of the damage caused and must pursue their legal action in a court of appropriate jurisdiction for that quantum.
– Plaintiffs in defamation actions must be able to give meaningful and reliable undertakings for their costs before they take an action against a defendant; a revised Defamation Act must require this.
– The Defamation Act must strike a fair balance between the protection of the property rights of one person with the right to a good name of the other, consistent with Art 40 of the Constitution. The Act as currently drafted fails to do so, and is arguably unconstitutional in this respect.
While he is at it, ISME suggests that Minister Flanagan should enact reforms to protect the media, the Oireachtas and society from rich litigants who vexatiously drag others of lesser means through defamation proceedings. More than half the states in the US have introduced ‘Anti-SLAPP’ legislation to prevent this, and the concept is explained here.