The law around defamation has struggled to keep up with developments particularly around social media and online platforms.
A substantial review of the Defamation Act 2009 was undertaken resulting in the Defamation (Amendment) Act 2026.
This was enacted on 19 February 2026, marking significant reform and seeking to modernise the existing legislation.
In the run up to the Amendment Act, which was signed into law on 1 March 2026 pursuant to Ministerial Commencement Order, there was considerable debate around the abolition of juries in the High Court.
This followed the UK reform which abolished the right to a Jury hearing pursuant to the Defamation Act 2013. There was significant discussion around the pros and cons of a Trial by a Jury or Judge.
Much of the debate centred around excessive awards in previous cases but opponents of this reform cite the decision of the Supreme Court in Higgins -v- Irish Aviation Authority which set out clear guidelines around damage award levels which insurers could understand.
Trial at the High Court in Defamation matters will now be heard by Judges only on the basis that it is more efficient and will give greater consistency in awards. This is the position for all new cases, and this development will be monitored with interest by all concerned.
All retailers and security entities operating on their behalf have faced significant defamation cases in recent years where entrants can be questioned about purchases or receipts sought. A significant number of cases come before the Circuit Court and there has been evidence of “set-up” situations resulting in awards and legal costs which appear out of proportion to smaller awards.
There is an extension on the qualified privileged defence, where a defence allowing retailers or their agents to request if a person has receipt of payment or otherwise. The obligation will ensure that there are no excessive publications, and it is noted security entities appear now to communicate on less open channels such as earpieces etc.
Live broadcasts by their nature are always risky and a number of significant awards have been made in respect of absurd outbursts on radio or television.
The new act recognises this position, and the live broadcast defence protects broadcasters in respect of such statement made by guests or third parties. This is not an open defence, and reasonable precautions will be required to be made by broadcasters seeking to rely on this defence.
SLAPP suits are meritless legal actions brought primarily to intimidate critics and silence free speech. In line with anti-SLAPP rules in other jurisdictions the new act creates procedural protection in defamation matters where there may be a concern that a party is being litigated against through an abusive or meritless litigation. There are measures in the act to fast track strike out applications, security for cost applications and to ensure strategic or abusive litigation is not continued endlessly.
The new Act requires corporate bodies to show real loss or that a published defamation “has caused or is likely to cause, serious harm”. This is in respect of corporate entities and requires them to demonstrate actual financial loss.
The new act allows applications to be made to the Circuit Court intermediatory service providers, revealing identifying information about anonymous publishers of alleged defamatory statements. This obligation requires online platforms to identify in accordance with court orders, where such evidence emanated from. This gives statutory basis for such orders currently sought through Norwich Pharmaceutical type orders.
The law around defamation is a constant monitor of right to fair speech versus individual or corporate rights. A defence is now given statutory protection where a defendant can demonstrate that a statement alleged to be defamatory was made as a matter of public interest, which they reasonably believed was made in good faith.
As with any major statutory reforms, it will be of significant interest to the legal profession and wider as to how reforms operate in a constantly changing world of publications. The reforms around juries in the High Court will impact the high value cases and it will be more difficult for many plaintiff litigants to bring cases that are made in a sudden or passing environment.
The most important reform is arguably around retailer and security entities. There are undoubtedly “mini-industry” claims around retail that are often difficult to defend with transient workers or cultural elements. The higher bar is often perceived to be “minor publications” before shoppers and will be a significant deterrent in such circumstances. As in other areas of the court lists, it is often the smaller opportunistic claims on a wide scale that cause the most difficulty so this reform will be monitored with interest by retailers and their advisors.
If you would like to discuss this further or have any questions on how this may affect your business, please get in touch.
Mary Byrne, Partner - Keoghs Ireland LLP
E: MaryByrne@keoghsireland.com
Niall Bass, Senior Associate - Keoghs Ireland LLP
Roisin McNally, Solicitor - Keoghs Ireland LLP
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