A Slapp in the Face for Legal Intimidation? Daphne's Law, The Defamation Bill, and the Future of Irish Legislation to Tackle Strategic Lawsuits against Public Participation

• Date: 01 January 2024
• Author: Eoin Gormley

57

A Slapp in the Face for Legal Intimidation?

Daphne’s Law, e Defamation Bill, and the

Future of Irish Legislation to Tackle Strategic

Lawsuits against Public Participation.

EOIN GORMLEY1

Every newspaper has ve like me, you know? Or every television station.

And when people ask, you know, ‘Why aren’t more people doing her job?’

And the reason is that people are scared because they see me under constant

attack. ey see what my life is like and they say, no way!2

Daphne Caruana Galizia (1964–2017)

Introduction

Daphne Caruana Galizia was a Maltese investigative journalist made famous by

her reporting on corruption in the Maltese government. She was a victim of one

of the most high-prole press killings in Europe’s recent history when a bomb was

detonated underneath her car near her family home. roughout her time as a

journalist, she was subject to campaigns of harassment and intimidation by those

implicated in her reporting. One of these methods was the ling of lawsuits against

her by those she reported on, intending to intimidate her into refraining from

further investigation. At the time of her death, there were 43 civil suits led against

her by various opposition parties, including Maltese politicians and their business

associates.3 Vexatious lawsuits of this nature that are led against journalists and

members of civil society to stie public discourse and debate are commonly referred

to as ‘SLAPPs’ (strategic lawsuits against public participation).

1 e author would like to express his gratitude to all that helped with the writing of this piece,

particularly Heather Burke, Olivia Moore, and Isabel Doyle BL for their invaluable comments and

suggestions. e author would also like to thank the editorial board members of the Hibernian Law

Journal. In particular, Róisín Rainey, Milo O’Shaughnessy, and Aoife O’Carroll.

2 Daphne Caruna Galizia’s last interview, given just six days before her death in October 2017.

e interview was carried Council of Europe research on the intimidation. Marilyn Clark and

William Horsley, ‘A mission to inform: Daphne Caruana Galizia speaks out.’ (Council of Europe,

6 October 2017) 13

web/168091e3> accessed 1 August 2024.

3 Elaine Allaby, ‘Aer journalist’s murder, eorts to combat SLAPP in Europe’ (Columbia Journalism

Review, 24 April 2019) .org/analysis/slapp-daphne-caruana-galizia-malta.php>

accessed 1 August 2024. See also Suzanne Lynch, ‘Murdered Maltese journalist’s son blasts EU

media freedom law.’ Politico (Virginia, 29 July 2023)

journalist-daphne-caruana-galizia-son-blast-eu-media-freedom-law/> accessed 1 August 2024.

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58  

e term ‘SLAPP’ appeared in the literature for the rst time in the 1980s – a term

coined by Canan and Pring4 – but has only become a topic of concern in Europe in

recent years, particularly in light of the killing of Ms Caruana Galizia.5 e Council

of Europe Commissioner for Human Rights outlined succinctly that the aim of a

complainant in a SLAPP case is

[…] not to win the case but to divert time and energy, as a tactic to stie

legitimate criticism. Litigants are usually more interested in the litigation

process itself than the outcome of the case. e aim of distracting or

intimidating is oen achieved by rendering the legal proceedings expensive

and time consuming. Demands for damages are oen exaggerated.6

SLAPPs can take on many forms but typically appear in defamation, privacy, data

protection, and copyright cases. is has led to eorts at an EU level to legislate

against this phenomenon.

It is against this backdrop that eorts to legislate against SLAPPs took on new life –

rst in the EU and more recently in Ireland. e European Commission rst began

the development of an anti-SLAPP regime in late 2021 and following trialogue

negotiations,7 the EU has nalised Directive 2024/10698 (known colloquially

as, and will be referred to hereaer as, ‘Daphne’s Law’). Ireland has followed the

lead of the EU and, in 2022, the Irish Government’s report on the reform of the

Defamation Act 2009 recommended legislation to combat SLAPPs. e current

Government has expressed its intention to turn these recommendations into

legislation.9 is article will discuss these developments and will critically analyse

4 Penelope Canan and George W Pring, ‘Strategic Lawsuits against Public Participation’ (1988)

35(5) Social Problems 506, 510. e authors introduce this concept in their article with a

memorable gravitas: ‘Americans are being sued for speaking out politically. e targets are typically

not extremists or experienced activists, but normal, middle-class and blue-collar Americans, many

on their rst venture into the world of government decision making … We call the suits “SL APPs,”

for Strategic Lawsuits Against Public Participation. We have found that this accurately captures

both their causation and their consequences.’

5 Petra Bárd and others, ‘Strategic Lawsuits Against Public Participation (SLAPP) in the European

Union: A comparative study’ (2021)

4092013> accessed 1 August 2024.

6 Dunja Mijatović, ‘Human Rights Comment: Time to take action against SLAPPs’ (Council of

Europe Commissioner for Human Rights, 27 October 2020) .co e.int/en/web/

commissioner/-/time-to-take-action-against-slapps> accessed 1 August 2024.

7 Suzanne Lynch, ‘Murdered Maltese journalist’s son blasts EU media freedom law.’ Politico (Virginia,

29 July 2023) rdered-journalist-daphne-caruana-galizia-son-

blast-eu-media-freedom-law/> accessed 1 August 2024.

8 Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on

protecting persons who engage in public participation from manifestly unfounded claims or abusive

court proceedings (‘Strategic lawsuits against public participation’) [2024] OJ L1069/1.

9 Kjeld Neubert and Nathalie Weatherald, ‘High stakes as EU anti-SLAPP directive enters nal

negotiations’ (Euractiv, 12 July 2023) .com/se ction/media/news/high-

stakes-as-eu-anti-slapp-directive-enters-nal-negotiations/> accessed 1 August 2024.

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A Slapp in the Face for Legal Intimidation? 59

the eorts of the EU and Ireland to combat SLAPPs. It will also discuss SLAPPs

more generally, and discuss some of the rights at issue when it comes to legislating

for SLAPPs. Finally, it will conclude by considering the future of this area of the

law since the passing of Daphne’s law, and propose recommendations as to how

Ireland should approach the incorporation of this Directive.

Part I: Democracy Action Plan to Daphne’s Law: SL APP

Legislation in European Law

e evolution of an EU anti-SLAPP Law10

e genesis of EU SLAPP laws was the EU’s 2020 European Democracy action

plan, wherein the European Commission set out its intentions to submit an

‘initiative to protect journalists and civil society against SLAPP’.11 is was

followed shortly by a Parliament Resolution in November 2021 demanding that

the Commission follow through on this commitment and produce a proposal on

an anti-SLAPP law.12 Eventually, the rst dra of an anti-SLAPP Directive was

produced by the Commission in April 202213 (the ‘Original Dra’), alongside

a Commission anti-SLAPP recommendation.14 On 6 March 2023, a document

containing proposed amendments to the Original Dra by the Council of the

European Union (the ‘Council Compromise Dra’)15 was leaked.16 is dra

10 For a detailed background of the legislative development of SLAPPs in Europe and some of the

events that catalysed the current push for legislation in this area (up to 2021) see: Department of

Justice, Report of the Review of the Defamation Act 2009 (Department of Justice, 1 March 2022),

[4.9.2].

11 Commission, ‘Communication from the Commission to the European Parliament, the Council,

the European Economic and Social Committee and the Committee of the Regions: On the

European democracy action plan’ COM (2020) 790 nal, [3.2].

12 European Parliament, ‘European Parliament resolution of 11 November 2021 on strengthening

democracy and media freedom and pluralism in the EU: the undue use of actions under civil and

criminal law to silence journalists, NGOs and civil society’ [2021] OJ C205/01.

13 Commission, ‘Proposal for a Directive of the European Parliament and of the Council on

protecting persons who engage in public participation from manifestly unfounded or abusive

court proceedings (“Strategic lawsuits against public participation”)’ COM (2022) 177 nal.

14 Commission, ‘Commission Recommendation (EU) 2022/758 of 27 April 2022 on protecting

journalists and human rights defenders who engage in public participation from manifestly

unfounded or abusive court proceedings (‘Strategic lawsuits against public participation’) [2022]

OJ L138/30.

15 Council of the European Union, Proposal for a Directive of the European Parliament and of the

Council on protecting persons who engage in public participation from manifestly unfounded or

abusive court proceedings (“Strategic lawsuits against public participation”) (2022) COD/0117,

[9]; General Secretariat of the Council of the EU, ‘Stronger press freedom and free speech

protection: Council agrees position on anti-SLAPP law’ (Council of the European Union, 9 June

2023) ess-releases/2023/06/09/stronger-press-

freedom-and-free-speech-protection-council-agrees-position-on-anti-slapp-law/> accessed 1

August 2024.

16 European Federation of Journalists.

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60  

proposal garnered negative attention and stoked the interest of many lobby groups.

It was described as a ‘self-defeating’ and ‘useless’ instrument by the Daphne Caruna

Galizia Foundation.17 e Council was criticised for (i) proposing an overly narrow

and restrictive denition of ‘cross-border’ cases to limit the potential for actions

to fall under the proposed directive, (ii) for ‘water[ing] down’ certain measures

‘designed to protect people and civil society organisations targeted by SLAPPs’,

such as provisions related to the awarding of damages, and (iii) for restricting the

potential for dismissal to cases that were ‘manifestly unfounded’.18

Nonetheless, this wording was carried forward by the Council of the EU in June

2023 as the EU Member States’ ‘common position’ on the law.19 e nal text

of the bill remained in the balance until trialogue negotiations20 between the

Council, Parliament and Commission concluded.21 Under the Spanish presidency,

the Council managed to negotiate a provisional agreement on the text with the

Parliament.22 is text was greeted with more optimism by proponents of an EU

anti-SLAPP law. Lobby groups emphasised the progress made from the Council

compromise dra was regards the broadening of the denition of cross-border cases

and the allowance for states to provide compensation for damages.23 All that was

le was the passing of the legislation which was done on the 27 February 2024. e

17 Daphne Caruna Galizia Foundation, ‘Dra anti-SLAPP Directive from Swedish Presidency is a

useless instrument’ (Daphne Caruana Galizia Foundation, 7 March 2023) .daphne.

foundation/en/2023/03/07/anti-slapp-compromise> accessed 1 August 2024.

18 Vitor Teixeira, ‘European Anti-SLAPP Directive under threat’ (Transparency International EU, 15

March 2023) .eu/european-anti-slapp-directive-under-threat/> accessed 1

August 2024; Coalition Against SLAPPs in Europe, ‘Urgent: Proposed Anti-SLAPP Directive

reatened by European Council’ (CASE, 14 March 2023) est/

dra-anti-slapp-compromise-proposal/> accessed 1 August 2024.

19 General Secretariat of the Council of the EU, ‘Stronger press freedom and free speech protection:

Council agrees position on anti-SLAPP law’ (Council of the European Union, 9 June 2023)

www.consilium.europa.eu/en/press/press-releases/2023/06/09/stronger-press-freedom-and-

free-speech-protection-council-agrees-position-on-anti-slapp-law/> accessed 1 August 2024.

20 A trialogue is an ‘informal interinstitutional negotiation bringing together representatives of the

European Parliament, the Council of the European Union and the European Commission. e

aim of a trialogue is to reach a provisional agreement on a legislative proposal that is acceptable to

both the Parliament and the Council, the co-legislators. is provisional agreement must then be

adopted by each of those institutions’ formal procedures.’ See Publications Oce of the European

Union, ‘Glossary: Trialogue’ (Publications Oce of the European Union, 30 August 2022) ttps://

eur-lex.europa.eu/EN/legal-content/glossary/trilogue.html> accessed 1 August 2024.

21 Kjeld Neubert and Nathalie Weatherald, ‘High stakes as EU anti-SLAPP directive enters nal

negotiations’ (Euractiv, 12 July 2023) .com/section/media/news/high-

stakes-as-eu-anti-slapp-directive-enters-nal-negotiations/> accessed 1 August 2024.

22 European Commission, ‘Commission welcomes political agreement on countering abusive

lawsuits against public participation (SLAPP)’ (European Commission Directorate-General for

Communication, 30 November 2023) ps://ec.europa.eu/commission/presscorner/detail/en/

ip_23_6159> accessed 1 August 2024.

23 Coalition Against SLAPPs in Europe, ‘Anti-SLAPP Directive: CASE statement on the political

agreement’ (CASE, 8 January 2024) the-case.eu/latest/anti-slapp-directive-case-

statement-on-the-political-agreement/> accessed 1 August 2024.

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A Slapp in the Face for Legal Intimidation? 61

nal text of the dra directive was voted on and passed by the European Parliament

with 87.5% of MEPs voting in favour.24

Daphne’s Law

e preamble to the Directive outlines the general aims of the legislation, including

the purpose of the anti-SLAPP Directive, which is to ‘eliminate obstacles to the

proper functioning of civil proceedings, while providing protection for natural and

legal persons who engage in public participation on matters of public interest’25, so

they are able to ‘participate actively in public debate without undue interference

by public authority or other powerful actors’. While specic reference is made to

the importance of journalists in ‘facilitating public debate and in the imparting and

reception of information, opinions and ideas’,26 the Directive emphasises that it

‘does not provide a denition of a journalist since the aim is to protect any natural

or legal person that engages in public participation.’27

e Directive denes ‘abusive court proceedings against public participation’

as ‘proceedings which are not brought to genuinely assert or exercise a right, but

have as their main purpose the prevention, restriction or penalisation of public

participation, frequently exploiting an imbalance of power between the parties,

and which pursue unfounded claims.’28 e Directive also outlines that parties

defending a SLAPP can apply for the claimant to provide security for the costs

of the proceedings,29 early dismissal of the proceedings,30 and/or damages against

the claimant should their defence be successful.31 Article 17 also provides for

protections related to the recognition of judgments across the EU Member States

and originating from third countries.32

e scope of the Directive is conned to ‘matters of a civil or commercial nature

with cross-border implications brought in civil proceedings’ and does not extend

to ‘revenue, customs or administrative matters or the liability of the state for acts

and omissions in the exercise of state authority’,33 and EU Member States have

until 7 May 2026 to introduce the laws, regulations and administrative provisions

necessary to comply with this Directive.34

24 Times of Malta, ‘European Parliament adopts ‘Daphne’s Law’’ Times of Malta (Birkirkara,

27February 2024) .

1086376> accessed 1 August 2024.

25 Directive (EU) 2024/1069 (n 8), recital 6.

26 ibid recital 8.

27 ibid recital 9.

28 ibid art 4(3).

29 ibid arts 6, 10.

30 ibid arts 6, 11.

31 ibid arts 6, 15.

32 ibid art 17.

33 ibid art 2.

34 ibid art 22.

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62  

Part II: Defamation and libel: SLAPP legislation in Irish Law

SLAPPs and Irish Defamation Law

Discussion and awareness of SLAPPs in Ireland has only taken shape in recent

years, though many would argue it ought to have begun much earlier.35 Ireland has

been described by one Freedom of Expression Organisation as ‘most vulnerable in

Europe to abuse by vexatious litigators’.36 One of the primary areas for concern is

Ireland’s defamation laws which were singled out in the European Commission’s

2020 Rule of Law report. Despite being one of only four European countries to

decriminalise defamation,37 this oers ‘little comfort to journalists and media

outlets’ due to the high cost of defending libel actions as well as the high awards

for damages awarded by Irish courts38 – so much so that the Irish defamation laws

were described by the European Commission in their 2020 Rule of Law report for

Ireland ‘as an inducement to self-censorship and a constraint to media freedom’.39

Ronan Ó Fathaigh’s analysis of the Irish legal system40 identies a number of specic

sections of the Defamation Act 2009 (the ‘2009 Act’) that are open to abuse by

those seeking to instigate a SLAPP. He identies sections 31 and 32 of the Act

that allow for the imposition of general and aggravated damages for defamation,

which has drawn criticism from many observers due to the process by which these

damages are determined. Notably, subsection 31(8) which outlines that it is the

‘court’ (which, in High Court defamation cases, quite oen,41 means the jury)

that decides what damages are appropriate and are not constrained by a cap on

damages.42

35 Department of Justice (n 10) [4.9.4].

36 Jessica Ní Mhainín, ‘A gathering storm: e laws being used to silence the media’ (2020)

(Index on Censorship, 1 June 2020) 10 .indexoncensorship.org/wp-content/

uploads/2020/06/a-gathering-storm.pdf> accessed 1 August 2024; See Scott Grien, ‘Libel

damages squeeze Ireland’s Press’ (International Press Institute, 4 January 2017)

in-depth-libel-damages-squeeze-irelands-press/> accessed 1 August 2024; See Ronan Ó Fathaigh,

‘e legal background of SLAPP cases Ireland’ in Petra Bárd and others (n 5) 221.

37 ough it is not strictly true to say that all aspects of defamation were decriminalised, Ireland has

abolished the criminal oences of defamatory libel, seditious libel and obscene libel. See Defamation

Act 2009, s 35; See also Mario Viola de Azevedo Cunha and Luc Steinberg, ‘Decriminalisation of

Defamation’ (Centre for Media Pluralism and Media Freedom, January 2019)

eu/wp-content/uploads/2019/01/decriminalisation-of-defamation_Infographic.pdf> accessed 1

August 2024.

38 Jessica Ní Mhainín (n 36) 12.

39 Commission, ‘Commission sta working document – 2020 Rule of Law Report Country –

Chapter on the rule of law situation in Ireland’ SWD (2020) 306 nal, 13.

40 Ronan Ó Fathaigh (n 36) in Petra Bárd and others (n 5) 221.

41 e High Court can also hear defamation cases without a jury.

42 ough a recent decision of the Supreme Court, Higgins v IAA [2022] IESC 13, gives

recommendations for caps – there is not yet a cap set on the damages one can receive in a

defamation action.

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A Slapp in the Face for Legal Intimidation? 63

is stems from the fact that, both prior and pursuant to the 2009 Act, the

assessment of the quantum of damages has been regarded as one of fact and falls

solely to the jury for determination.43 And while there has been a requirement that

damages awarded by a jury must be ‘objectively proportionate’ to the harm caused

by the defamatory publication,44 deciphering what constituted an ‘objectively

proportionate’ award has proven very dicult for juries given the absence of a

frame of reference for the quantum of awards. is phenomenon that may explain

why nearly all jury awards appealed to the Superior Courts in the last decade have

been overturned.45

Furthermore, and as it relates to SLAPPs, this can play into the hands of applicants

as the presence of a jury in the process ‘considerably lengthens the duration of

the trial, thus increasing legal costs’.46 is vulnerability in the Irish legislative

framework is underscored by the fact that Irish defamation damages are ‘oen

multiples of the equivalent awards in Europe’47 – which is associated with

encouraging ‘libel tourism’ – and by extension SLAPPs – to Ireland.48

Irish ‘SLAPP’ case law

Some of these concerns were addressed in the recent Supreme Court decision of

Higgins v Irish Aviation Authority.49 Here, MacMenamin J was reluctant to question

the role of juries in defamation matters, stating that ‘under the Act of 2009,

jurors are the judges of fact and credibility’.50 Nonetheless, his leading judgment

was not shy about setting out that ‘defamation cases are capable of being seen as

falling within four general ‘categories’, or ‘brackets’51 – ranging from ‘moderate

defamation’ that could lead to an award up to €50,000, to ‘top scale’ defamation

which comprises of ‘cases at, or in excess of €200,000, but where the courts have

very seldom awarded more than €300,000.’52

Irish case law on SLAPPs – either addressing the issue substantively or even

merely characterising an action as such – is scant but has been engaged with more

43 S ee generally, Neville Cox and Eoin McCullough, Defamation: Law and Practice (2nd edn, Clarus

Press 2022) [11–09]–[11–16].

44 See Barrett v Independent Newspapers [1986] IR 13; McDonagh v News Group Newspapers (SC, 23

November 1993).

45 Neville Cox and Eoin McCullough (n 43) [11–11].

46 Ronan Ó Fathaigh (n 36) in Petra Bárd and others (n 5); NewsBrands Ireland, ‘Ireland’s Draconian

Defamation Laws Must Be Urgently Reformed – It’s in e Public Interest’ (NewsBrands Ireland)

accessed 1 August 2024.

47 NewsBrands Ireland (n 46).

48 ibid.

49 Higgins v Irish Aviation Authority [2022] IESC 13 (MacMenamin J).

50 ibid [28] (MacMenamin J).

51 ibid [157] (MacMenamin J) (emphasis in original).

52 ibid [160] (MacMenamin J).

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64  

frequently and in more detail in a number of recent High Court cases. Egan J

was one of the rst judges to address this issue specically in Atlas GP Ltd v Kelly

& Ors.53 Egan J was hearing from an applicant for judicial review of a decision

of An Bord Pleanála who was seeking to have a number of motions led by the

notice party struck out, since leave for judicial review was formally granted.54 e

applicants for judicial review claimed that these proceedings could be characterised

as a SLAPP. Egan J recognised that although ‘Ireland and the EU have not yet

enacted specic anti-SLAPP legislation’ it was not necessary for her ‘to rely upon

developments in Europe, or elsewhere, in relation to SLAPP litigation’ in order to

strike out the proceedings before her. Egan J instead relied on the application of

the ‘well-known domestic principles on applications to strike out’ to strike out the

applicant developer’s proceedings as ‘bound to fail’.55

More recently, Humphreys J provided the most comprehensive analysis of

SLAPP litigation by an Irish judge to date in Glenveagh.56 Humphreys J described

SLAPPs as a ‘a relatively recent iteration of an old phenomenon – the bringing

of proceedings to disrupt and silence opponents rather than obtain justice’,57

comparing it to the oence of barratry.58 In deciding the issue, Humphreys J made

the rst attempt to dene SLAPP actions in Irish law and incorporate them into

existing legal mechanisms for striking out abusive claims.

Humphreys J engaged with a number of circulars and cases from other

jurisdictions, as well as the Commission dra proposal, recommendation, and

the 2023 defamation bill. While Humphreys J admitted that the citing of foreign

precedent and dra legislation is ‘persuasive or contextual at best’ he opined that

‘the approach to SLAPPs is best viewed as something to be accommodated within

existing legal principles, but on the basis of a context-sensitive understanding and

application’.59 He then listed some of the ‘potential indicia’ of SLAPPs under the

headings ‘Parties’, ‘Subject-matter’, ‘Claims in the Proceedings’ and ‘Conduct of the

dispute’ – listing 29 separate elements of litigation that may alert a court that the

action before it is a SLAPP. Characteristics such as ‘an imbalance between parties’,

‘a public interest dimension to the work or activities that the suit impugns’, ‘unduly

vague and unspecic claims’ and ‘the pursuit of appeals with little or no prospect of

53 [2022] IEHC 443.

54 See Kelly & Ors v An Bord Pleanála & Ors [2022] IEHC 238 [1]–[6]. e issue of SLAPPs is

in fact raised in this judgment also, and Holland J commented, obiter, on the issue: ‘I am aware

the parameters in law of what may be termed SLAPP litigation, whether it is wrongful in law

– for example as a form of abuse of process-the conditions for a nding of its presence and the

consequences of such a nding have not, as yet, been the subject either of case law or legislation.

However, the issue is certainly topical, and it would not be surprising if a Court were to address it

in a suitable case.’

55 Atlas GP Ltd v Kelly & Ors [2022] IEHC 443, [25].

56 Glenveagh Homes Ltd v Lynch & Anor [2024] IEHC 157.

57 ibid [40].

58 ibid [40].

59 ibid [60].

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A Slapp in the Face for Legal Intimidation? 65

success’ were included in this list. And while Humphreys J stressed that some of the

indicia were not of themselves problematic, a range of these factors pointing in the

same direction could lead to an inference of an abuse of process.60

is marks the rst attempt61 at a characterisation of SLAPP actions by an Irish

court and may well be inuential in future eorts by courts to identify SLAPPs.

is judgment also illuminates the potential for SLAPP legislation to be

incorporated into existing rules surrounding vexatious claims. However, with

the transposition of Daphne’s law required in Irish legislation by 2026, and with

dra SLAPP legislation already at draing stage (as will be discussed below), it is

likely that domestic SLAPP legislation will appear alongside cross-border SLAPP

legislation required by the Directive rather than be dealt with by common law.

Nonetheless, Humphreys J provides a potential framework from which courts can

identify and characterise SLAPP actions.

SLAPP in the Oireachtas

As regards the potential for litigation in SLAPP, in 2022, the Minister for

Justice published a review on the Defamation Act 2009 which recommended

the introduction of ‘an “anti-SLAPP” mechanism to allow a defendant to bring

a motion to court seeking early dismissal of defamation proceedings against

them which appear to be without merit and contrary to the public interest’.62

Subsequently, the General Scheme of the Defamation (Amendment) Bill63

was published in March 2023, taking account of the then-latest dra version of

Daphne’s Law64 and seeking to give eect to the recommendation in the 2022

review to ‘[i]ntroduce a new “anti-SLAPP” mechanism, to allow a person to apply

to court for summary dismissal of defamation proceedings that he/she believes

are a SLAPP’.65 James Browne, Minister of State at the Department of Justice and

Equality, indicated in March 2024 that he had hoped to bring the amending Bill to

Government ‘in the coming weeks’66 but the Bill at the time of writing has yet to be

formally presented to the Oireachtas.

Part 5 of this Bill deals with SLAPPs.67 Head 24 includes denitions, including

a list of ‘features of concern’ which are, in essence, elements of proceedings that

should alert a court to the potential of an action to be a SLAPP. Head 25 includes

60 ibid [62].

61 ibid. As Humphreys J described it.

62 Department of Justice (n 10) 283.

63 Department of Justice, ‘Dra General Scheme of the Defamation (Amendment) Bill’ (Department

of Justice, 28 March 2023).

64 ibid 32.

65 Department of Justice (n 10) s 1.9.

66 Dáil Deb 20 March 2024 vol 1051 col 3, written answers 830–832.

67 Department of Justice (n 63) 32.

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a list of factors a court should have regard to when deciding proceedings brought

under this Part – of note ‘the right to freedom of expression’, ‘the right to vindicate

one’s good name’ and ‘the gravity of the defamation claimed’. Head 26 of the Bill

provides for an early dismissal of procedure which outlines that, when faced with a

SLAPP action, a court must dismiss the action if it is satised that the proceedings

are ‘manifestly unfounded’; and may dismiss the action, if not satised that they are

manifestly unfounded, but satised that they exhibit ‘features of concern’.68

Heads 28 to 31 outline remedies that a defendant to SLAPP proceedings can apply

for – namely, Security for Costs,69 Damages,70 Costs,71 as well as the option for the

Court to, at its discretion, join an Amicus Curie to the proceedings72. While the

contents of this dra Bill must be read in light of the fact that it was draed before

the nalisation of Daphne’s Law and that SLAPPs are discussed through the lens

of defamation proceedings, there are many notable elements of the dra Bill that

indicate how Daphne’s law may be transposed by the Irish government.

Part III: Reconciling SLAPP Legislation with Rights Impacted by

SLAPP Laws Rights aected

Public participation and media freedom

One of the primary justications for anti-SLAPP laws is the impact SLAPPs

have on people’s right to freedom of expression and public participation in the

political process. A general right to freedom of expression is granted under Article

10(1) of the ECHR73 as well as Article 40.6.1° of Bunreacht na hÉireann.74 As

the title suggests, the essence of SLAPP cases is their target of restricting public

participation, and it is this emphasis on stiing the participation of citizens in the

public sphere that distinguishes SLAPPs from other types of vexatious lawsuits.75

In the words of Canan and Pring: ‘SLAPPs send a clear message: that there is a

‘‘price’’ for speaking out politically’.76 Imbalances in power and inuence between

parties to SLAPP cases oen means that this price is quite high for respondents.77

68 ibid 36–38.

69 ibid 40.

70 ibid 42.

71 ibid 42.

72 ibid 40.

73 Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights, as amended) (ECHR), art 10(1). e restriction on the exercise of

this freedom in article 10(2) will be discussed in the coming sections of this piece.

74 Article 40.6.1°.

75 Fiona Donson, ‘Libel Cases and Public Debate – Some Reections on whether Europe Should be

Concerned about SLAPPs’ 19(1) Review of European Community & International Environmental

Law, 83, 3-4.

76 Canan and Pring (n 4) 516.

77 Petra Bárd and others (n 5) 19.

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A Slapp in the Face for Legal Intimidation? 67

Applicants are typically powerful individuals or corporations who have the money,

resources or even the political power to maintain abusive lawsuits against typically

less resourced actors, to the extent that these groups and individuals are forced into

silence.78

While this right to freedom of expression extends beyond members of the press

and the media, there is a notable focus on the freedom of the press when it comes

to SLAPPs.79 As discussed above, SLAPPs have a particular, ‘chilling eect’ on

journalists, and can reduce media freedom and pluralism in a country.80 Both the

ECtHR and CJEU see journalism and the free dissemination of information as a

core component of freedom of expression.81 e eect of SLAPPs on media goes

beyond the individual attacks on journalists and media outlets: widespread SLAPP

cases can discourage inquiry and disclosure by media outlets for fear of litigation,82

as costs of legal fees in some instances would be enough to close a media outlet

altogether.83 is leads to many media outlets deciding not to risk taking the

issue to court and settling instead.84 is means that ‘spurious legal threats’ are

oen enough for media outlets to take down published articles or cease reporting

on a particular issue.85 Creating a system, therefore, that ensures SLAPPs can be

dismissed at an early stage without defendants needing to bear overly burdensome

legal costs is crucial to reducing this fear of litigation.

Right to a good name v freedom of expression

One of the stumbling blocks when it comes to the introduction of anti-SLAPP

laws is ensuring that an anti-SLAPP law does not infringe on other related rights

and interests. One such right is one’s right to a good name. is right has strong

protection on an Irish and European level, as seen in Article 10(2) of the European

Charter of Human Rights86 and Article 40.3.2 of Bunreacht na hÉireann which

78 Petra Bárd and others (n 5) 19 and 71.

79 See, for example, Council of the European Union (n 15) art 1. ‘is Directive provides safeguards

against manifestly unfounded claims or abusive court proceedings in civil matters with cross-

border implications brought against natural and legal persons, in particular journalists and human

rights defenders, on account of their engagement in public participation’ (emphasis added).

80 Department of Justice (n 10) s 4.9.7; Coalition Against SLAPPs in Europe, ‘Shutting Out

Criticism: How SLAPPs reaten European Democracy’ (CASE, 16 March 2022) 51

www.the-case.eu/wp-content/uploads/2023/04/CASEreportSLAPPsEurope.pdf> accessed 1

August 2024; Canan and Pring (n 4), 516.

81 Petra Bárd and others (n 5) 23.

82 Petra Bárd and others (n 5) 6.

83 Jessica Ní Mhainín (n 36) 12.

84 ibid.

85 e Coalition Aga inst SLAPPs in Europe (n 80) 50.

86 ECHR (n 73), art 10(2). e exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society for the protection of the reputation or

rights of others.

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68  

ensures that the State will ‘by its laws protect as best it may from unjust attack

and, in the case of injustice done, vindicate the …good name of every citizen’.87

is constitutional protection of one’s good name in Bunreacht na hÉireann is

particularly notable, as it is expressed explicitly rather than deriving from other

rights and is only one of four rights in the Constitution (along with the right to

life, person and property) deemed to be protected ‘in particular’.88 erefore, it is

important when considering the development of anti-SLAPP laws in Europe – and

particularly in Ireland – that there is more of a need to consider the protection of

reputation than, for example, the US whose constitution does not protect the right

to one’s good name to the same extent.

As such, directly transplanting anti-SLAPP laws from the US must be done with

caution as the country takes a ‘more fundamentalist [approach]…when it comes

to the protection of free speech’89 due to the specic protection of free speech in

the US Constitution.90 With this need for balancing in mind, it is appropriate

to discuss the aforementioned recommendation made in the Irish report on the

Defamation Act 2009: to model an Irish anti-SLAPP law on those found in the

jurisdiction of Ontario. Namely, on Ontario’s Protection of Public Participation

Act 2015. Briey, this Act allows for defendants to make a preliminary application

asking the court to dismiss proceedings they believe to be a SLAPP. Upon ling

this motion, the proceedings are frozen and the application is fast-tracked and

heard summarily by the court.91

e report notes in particular the ‘judicious balance’ that Ontario’s regime proposes

between the rights of freedom of expression and the protection of reputation. e

Court engages in a three-stage test when assessing whether to dismiss the case. ey

consider whether it is within the public interest to do so, whether the proceedings

brought have ‘substantial merit, and whether the public interest reasons to dismiss

the action outweigh the rights of the plainti to bring the action.’ e report

opined that this three-step test ‘seems compatible with the approaches of the

Irish Constitution and of the European Convention on Human Rights’. It viewed

as appropriate also that public interest served as the ‘determining criterion for

deciding conicts between those rights’.92 us, unsurprisingly, the balance – or

perhaps even tension – between the right to a good name and the right to freedom

of speech is given all the more consideration in an Irish context.

87 Article 40.3.2°.

88 Cox and McCullough (n 43) [1]–[13].

89 Fiona Donson (n 75) 13; See also Canan and Pring (n 4) 515. Canan and Pring speaks of the threat

of SLAPPs very much in the context of the protection of rst amendment rights: SLAPPs occur

despite the fact that the U.S. Constitution, state constitutions, federal and state civil rights laws,

privilege and immunity statutes, and court decisions expressly protect citizens in their eorts to

participate in and inuence government decision making. e petition clause of the rst amendment

specically guarantees the ‘right to petition the Government for a redress of grievances.’

90 US Constitution, amendment I.

91 Department of Justice (n 10) s 4.9.6.

92 Department of Justice (n 10) s 4.9.7.

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A Slapp in the Face for Legal Intimidation? 69

Right to a fair trial v Early dismissal mechanisms

Reconciling the proposed early dismissal mechanisms typically found in anti-

SLAPP legislation with the right to a fair trial is another balancing act that both

the EU and Irish regimes must undertake when draing anti-SLAPP laws. e

right to a fair trial is protected on an EU level by Article 6 of the ECHR93 and in an

Irish context by Article 38.1 of Bunreacht na hÉireann.94

is was clearly an area of concern for EU Member States as regards the draing of

Daphne’s Law. e European Commission noted Member States’ concerns that any

anti-SLAPP measure should be ‘in line with the right to an eective remedy and

to a fair trial’ and ‘would not prevent legitimate claims from being pursued in the

courts and consequently violate the claimants’ access to justice’.95 ese concerns

were borne out in the changes made to the European Commission’s Original Dra

by the Member States which changed the denition of ‘manifestly unfounded cases’

that could be dismissed summarily, meaning that, under the current conguration

of the Bill, a case would have to be ‘so obviously unfounded that there is no

scope for any reasonable doubt (..)’ to be thrown out.96 However, proponents for

the introduction of anti-SLAPP laws would emphasise the right to a fair trial as

having a broader meaning, and without robust anti-SLAPP laws, the fairness of a

defamation action could ‘fundamentally be questioned if it was vexatious’ and that

‘national law was incapable of counteracting these phenomena’97.

is concern has not gone unnoticed in an Irish context either. e Report of

the Review of the Defamation Act 2009 mentioned that the introduction of an

early dismissal mechanism carries with it the risk that ‘in a small number of cases,

defamation proceedings may be dismissed where the plainti could have a valid

case’98. Indeed, as seen above, the current law on the jurisdiction of the courts to

strike out proceedings is ‘exercised sparingly and only in clear cases’99 and there is

a high bar to succeed in a motion such as this, as the defendant ‘must demonstrate

that any factual assertion on the part of the plainti could not be established’100.

Allowing for an evidential bar lower than this to dismiss SLAPP actions may give

pause to legislators concerned about the premature dismissal of certain matters.

In fact, one of the reasons that the Ontario-inspired dismissal mechanism was

recommended as a way of dealing with SLAPPs in Ireland was that alternative

solutions ‘including the general application of a “serious harm” test, or reversing

93 ECH R (n 73) art 6(1). ‘… everyone is entitled to a fair and public hearing within a reasonable time

by an independent and impartial tribunal established by law …’

94 Article 38.1. ‘No person shall be tried on any criminal charge save in due course of law.’

95 Council of the European Union (n 15).

96 See V itor Teixeira (n 18).

97 Petra Bárd and others (n 5) 85.

98 Department of Justice (n 10) s 4.9.7.

99 Atlas GP Ltd v Kelly (n 55) [22], citing Costello J in Barry v. Buckley [1981] IR 306.

100 Atlas GP Ltd v Kelly (n 55) [25].

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the presumption of falsity’ pose ‘much larger risks of bona de defamation actions

being dismissed prematurely’.101 Clearly, reconciling these competing rights will not

just be an issue for European legislators but also those in Ireland.

Part IV: Making Daphne’s Law Work in Ireland

e passing of Daphne’s law, though subject to many compromises, has been seen as

a watershed moment in the campaign to end SLAPP actions in Europe. is being

so, it is useful to address some of the shortcomings of this Directive. As discussed

above, the somewhat fraught nature of the discussions of the Directive has meant

that all three institutions have had to alter their expectations of the contents of the

Directive and make compromises. is section will examine some of the potential,

and shortcomings, of this legislation.

Daphne’s Law’s positive impact

Daphne’s Law will mean that there is a universal minimum standard of protection

for those subject to cross-border SLAPPs across the bloc, and a certainty as to what

this minimum standard is. As Bárd and others assert, it is ‘much more in line with

legal security and foreseeability to have an anti-SLAPP law for the EU than would

be forcing the CJEU to come up with a jurisprudence establishing various tests for

situations when mutual recognition-based laws may be suspended on a case-by-case

basis.’102

It will also assist with the development of jurisprudence on SLAPP in this

jurisdiction. is article discussed the recent judgments of Humphreys J and Egan J

who, respectively, attempted to deal with proceedings that potentially incorporated

elements of SLAPP. In the case of Humphreys J, he could only rely on dra

proposals from the EU as a reference point or denition of a SLAPP action. With

the passing of Daphne’s law, a distinct and explicit denition and characterisation

of SLAPP actions can be relied on by courts and give them a more solid basis upon

which to assess whether an action is a SLAPP. As for Egan J’s judgment in Atlas,

she noted that the case before her could be decided on pre-existing principles and

on the basis that the motion before her was ‘bound to fail’. However, with the

introduction of Daphne’s law, litigation that is not necessarily ‘bound to fail’ can

be assessed for whether they are nonetheless abusive and discouraging of public

participation. us, Daphne’s law will allow for Irish courts to adopt a denition

of SLAPP recognised in Irish law, and use it to apply the principles of anti-SLAPP

legislation in a more robust manner.

101 Department of Justice (n 10) s 4.9.7.

102 Petra Bárd and others (n 5) 85.

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A Slapp in the Face for Legal Intimidation? 71

ere is also potential for Daphne’s law to have a ‘so impact’, in that this EU

legislation will more generally increase awareness among courts and legislators

of this phenomenon. Donson’s words on this are notable. She rightly asserts that

rather than oering a ‘quick x’ the recognition of SLAPPs in European law ‘will

allow for a refocusing of attention on the motivations of SLAPP lers and away

from the intricacies of any perceived aws in the libel law and its operation. More

broadly, it will also require further scrutiny on the level of protection aorded

to public participation in the political sphere and its link with the right to free

speech.’103

Making specic protections

e rst consideration that should be taken into account is ensuring that strong

and specic protections to combat SLAPPs are included in the transposition

of Daphne’s Law into Irish legislation. ough the European Parliament has

emphasised the strong protections included in Daphne’s law,104 much of the detail

has been le up to national courts and legislators. e NGO, CASE, highlights

a number of key areas that rely on proactive national legislation to give proper

eect to Daphne’s law.105 In particular, they highlight that Article 8, in providing

for the possibility that damages against parties found to be instigating SLAPP

legislation,106 may be awarded ‘if provided for in national law’, risks damages

being restricted to existing compensatory rules that may be insucient to

compensate SLAPP targets.107 Furthermore, CASE highlights that while Article

11 asserts that courts ‘may dismiss, aer appropriate examination, claims against

public participation as manifestly unfounded, at the earliest possible stage in the

proceedings, in accordance with national law’,108 dening ‘manifestly unfounded’ as

broadly as possible so that the dismissal mechanism is not narrowed to the point of

unworkability is the responsibility of the national legislature.109

us, it is imperative, in transposing Daphne’s Law into Irish legislation, that strong

protections are provided. e dra Defamation Bill points in the right direction by

making specic provisions for a range of potential remedies ranging from a court

declaration to damages. Furthermore, the ability of a court not only to dismiss

‘manifestly unfounded’ actions but actions with ‘features of concern’, ensures that

103 Fiona Donson (n 75) 25.

104 European Commission (n 22).

105 Coalition Against SLAPPs in Europe, ‘e Anti-SLAPP Directive creates a promising minimum

standard for Member States’ (CASE, 27 February 2024)

anti-slapp-directive-creates-a-promising-minimum-standard-for-member-states/> accessed 1 August

2024.

106 Directive (EU) 2024/1069 (n 8) art 8.

107 Coalition Against SLAPPs in Europe (n 105).

108 Directive (EU) 2024/1069 (n 8) art 11. Emphasis added.

109 Coalition Against SLAPPs in Europe (n 105).

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72  

the bar is not too high to dismiss SLAPP actions. Retaining these provisions in

SLAPP legislation will ensure the intended eects of Daphne’s Law will be real ised

in Ireland.

Domestic SLAPP actions

Furthermore, Daphne’s law as an EU legislative provision only tackles cross-border

cases, meaning that even if Ireland successfully and robustly transposes Daphne’s

law into Irish law, it will not suce to regulate against SLAPP actions involving

a plainti and defendant both residing in Ireland. us, it is essential that any

legislation passed to transpose Daphne’s Law into Irish law involves provisions

that allow for protection against domestic SLAPP actions. A report carried out

by CASE before the Original Dra legislation outlines the necessity of passing

domestic SLAPP legislation alongside any EU cross-border SLAPP legislation

by highlighting that only 10.9% of the SLAPPs instigated in Europe could be

characterised as true ‘cross-border’ cases and thus fall within the purview of this

proposed legislation.110

us, the aforementioned work on developing a SLAPP regime in Ireland should

certainly not lose relevance in the wake of Daphne’s Law. In fact, it should serve

to accelerate these eorts. While there is no explicit provision in Daphne’s law

mandating domestic anti-SLAPP legislation, the Commission’s anti-SLAPP

Recommendation outlines that:

Member States should aim to include in their national laws similar safeguards

for domestic cases as those included in Union instruments that seek to

address manifestly unfounded and abusive cases against public participation

for civil matters with cross-border implications.111

e prominent inclusion of SLAPPs in the most recent iteration of the dra

defamation bill is certainly a positive step toward Ireland following this

recommendation. It is thorough in its dealing with the various ‘pressure points’

of SLAPP litigation but does not go far enough in fullling this aspiration. Irish

lawmakers ought to consider the broad spectrum of SLAPPs and their potential

to touch on areas beyond defamation actions. For example, and as is evident in the

case law on this matter, SLAPPs are becoming a common point of discussion in

the Planning and Environmental Law context. us, positive developments on a

European level as well as in the dra defamation legislation catalyse rather eorts

to develop a robust and wide-ranging act that tackles SLAPP allegations across the

legal system because, up to now, legislation to combat domestic SLAPPs is not yet

sucient.

110 e Coalition Against SLAPPs in Europe (n 80) 23.

111 Commission Recommendation (EU) 2022/758 (n 14).

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A Slapp in the Face for Legal Intimidation? 73

Non-court measures

e above analysis demonstrates the potential for Daphne’s law to catalyse the

development of a robust network of legislation targeting SLAPPs across the bloc.

Yet even the best and most watertight SLAPP laws can and will only go so far to

eectively deal with the issue of lawsuits against public participation. In the words

of Bard, ‘[n]o law can be made entirely SLAPP-proof by the legislat[ure]’112 Even

with early dismissal mechanisms, compensation measures, and nes, threats of legal

action that do not even constitute a formal commencement of legal proceedings

can continue to hamper the work of media outlets and civil society groups.113

e conclusions of Bard’s comparative study of SLAPPs in a European context

are compelling and worth bearing in mind as awareness of, and legislation for

regulating SLAPPs develops. e study concluded that a ‘mix of measures’ was

needed to deal with the issue of SLAPPs:

1. A consistent judicial practice respecting the principles of freedom of

expression as developed by the ECtHR. 2. Financial and organisational

support, as well as legal protection for targets. 3. Legal protection against

abuse of process, for instance in the form of specic anti-SLAPP legislation.114

While this article has focused on the development of legal developments, it would

be short-sighted not to recognise, as Bárd and others do, that EU and domestic

legislation will not be a silver bullet when it comes to protecting victims of

SLAPPs. A broader approach to combatting SLAPPs will be required in order to

comprehensively address this problem – both in the EU and Ireland. Non-legal

solutions and supports can take many forms, but one of the most crucial is the

provision of nancial support for defenders of SLAPP actions. is is crucial to

ensuring that there is ‘equality of arms’ between parties – particularly in actions

taken by larger, corporate plaintis against smaller media outlets, freelancers and

NGOs.115 So too is investment in the training of, and coordination between, judges

across the European Union to ensure that a consistent approach to SLAPPs is

taken across the bloc. While both domestic and European legislation will be vital

when it comes to combatting SLAPPs, investment in initiatives such as these to

complement this legislation will be imperative to ensure that it has the intended

eect.

112 Petra Bárd and others (n 5) 71.

113 e Coalition Against SLAPPs in Europe (n 80) 50.

114 Petra Bárd and others (n 5) 79.

115 Petra Bárd and others (n 5) 81.

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74  

Conclusion

It feels appropriate that the last word on this issue is given to Daphne Caruana

Galizia,

We’re calling ourselves European. We’re a European Union member state, so

you can’t say ah, you can write that in England, you can write it in Rome,

but you can’t write it in Valletta. I said, ‘If you can write it in Rome and you

can write it in London, you can write it in Valletta.’ And they just don’t get

this. So, I think it’s really important to remind people that just because Malta

is a rock, 17 miles by nine, with a weird scenario, it doesn’t mean that the

weirdness is either normal or acceptable.116

is quote highlights how, through her work as an investigative journalist, Daphne

Caruana Galizia saw EU-wide action on SLAPPs as necessary, not just for the ease

of her work, but for the sake of media freedom across the European Union. Six-

and-a-half years since her death, the EU has nally passed legislation that seeks to

make Daphne’s dream of Europe-wide media freedom a reality.

is article has outlined the phenomenon of SLAPPs and has argued that this

legislation is a positive development from both an Irish and European perspective,

but that this is not a silver bullet when it comes to preventing SLAPPs. For

Daphne’s law to have maximum eectiveness, there must be eective transposition

of the Directive into the national law of EU Member States, the introduction of

non-legal supports to guard against the instigation of SLAPPs, and, from an Irish

perspective, legislation that deals with domestic SLAPP actions beyond those

seen in defamation proceedings. What is nonetheless clear is that the passing of

Daphne’s law aer many years of contentious negotiations between the institutions

gives reason for optimism that journalists in the European Union can be protected

against the intimidation experienced by Daphne Caruna Galizia.

116 Marilyn Clark and William Horsley (n 2) 20.

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