The removal of juries in High Court defamation actions is one of many proposed reforms put forward by the Irish government in the draft scheme of the Defamation (Amendment) Bill earlier this year, but it has quickly emerged as one of the most divisive. Many experts contest the benefits of removing juries from defamation proceedings, arguing that they are too important a democratic institution to do away with.
While most civil actions have been determined by judges since 1988, defamation cases citing damages above €75,000 still come before a jury in Dublin’s High Court. The current defamation reform aims to improve the efficiency of defamation cases, which are extraordinarily time-consuming and expensive, while also addressing the outsized damages that juries award and the difficulty they have ruling on an increasingly complex area of law.
The proposed changes to the legislation would remove juries from defamation cases, allowing them to be decided by judges alone. The Department of Justice has argued that juries are unsuitable on grounds that they: (a) are unreliable in their evaluation of complex arguments, (b) award unreasonably large amounts in damages, (c) create delays in trials, and (d) increase legal costs for all parties. These arguments were heavily disputed during the oral hearings that were held by the Joint Committee on Justice in summer 2023. Some witnesses suggested that judges could equally cause delays, award high damages, and produce inconsistent decisions.
Through a legal review, statistical analysis of the High Court’s Jury List, and interviews with experienced practitioners and academics, this report examines empirical evidence on both sides of the debate in order to determine the extent to which juries should have a role in defamation cases. Dozens of judicial decisions and over 400 case records from the Jury List were analysed in preparation for this report, although the lack of information in the public records limited the scope of the research.
Those who support the removal of jury trials from defamation proceedings give three main reasons: outsized legal costs, extended delays, and excessive damages. This report, which you can view below or download here, assesses each of these arguments in turn.
Members of the Coalition Against SLAPPs in Europe (CASE), with the support of the coalition’s Italian group and Media Freedom Rapid Response (MFRR), express solidarity with Roberto Saviano who attended the first hearing in the proceedings for aggravated defamation initiated against him by current Prime Minister Giorgia Meloni. We are seriously concerned about the criminal proceedings initiated in 2021 by the current Prime Minister Giorgia Meloni, the leader of Fratelli d’Italia. Under the current provisions on defamation, Roberto Saviano risks imprisonment for his criticism of Meloni during a TV programme.
Such accusations act as a gag on freedom of expression, a fundamental right enshrined in the Italian Constitution and international law. No journalist or writer should be prosecuted for expressing their honest opinion on issues of public interest. A criminal defamation suit is not an acceptable response in a democracy, all the more so when it comes from a high ranking representative of the institution. This threat to Saviano reveals, once again, the degree of the abuse of defamation suits or SLAPPs (Strategic Lawsuits Against Public Participation) in Italy.
The lawsuit for aggravated defamation was initiated by current Prime Minister Meloni in November 2021, in response to comments made by Roberto Saviano during the episode of the TV programme Piazza Pulita which aired on 3rd December 2020. Saviano’s comment was formulated in response to the controversial rhetoric employed in recent years by the two political leaders to describe the migration emergency in the Mediterranean.
In November 2020, the NGO ship Open Arms rescued a number of displaced individuals from a shipwreck, caused by a collapsing dinghy in the Mediterranean Sea. The delayed rescue by the Italian authorities had prevented timely assistance to the survivors who were in dire need of specialist medical care, including a six-month-old infant who later died on the Open Arms. Following Piazza Pulita’s coverage of the investigation on the authorities’ delayed response, Roberto Saviano had referred to both Meloni, the then leader of Fratelli d’Italia and the Lega secretary, Matteo Salvini as ‘bastards’.
The possibility that Roberto Saviano, in his role as a writer and journalist, could incur a prison sentence for expressing his opinion on a politically sensitive issue, such as the treatment of migrants in Italy, once again draws attention to the serious inadequacies of Italian libel laws. The right to freedom of expression is enshrined in Article 21 of the Italian Constitution. Furthermore, international law and jurisprudence of the European Court of Human Rights (ECtHR) guarantees that the right to freedom of expression extends to statements and ideas that may ‘offend, shock or disturb‘ and that opinions are entitled to enhanced protection under the guarantee of the right to freedom of expression. Further, the ECtHR has clarified that public figures and, in particular, political actors must tolerate higher levels of criticism and scrutiny given their public position within society, and that in such cases criminal prosecution has a chilling effect and is violating the right to freedom of expression as guaranteed by Article 10 ECHR.
Those who express their opinion on matters of public interest should not fear nor be exposed to intimidation, conviction, or imprisonment. On this last point, the Italian Constitutional Court has made its position clear, urging lawmakers to initiate a general reform of the legislation on defamation that would bring Italian legislation in line with the standards of European and international law. With the ruling of 9 June 2020 and the decision of 22 June 2021, the Court, in line with previous judgments of the ECtHR, declared prison sentences in cases of defamation in the press unconstitutional. However, the provision of prison sentences remains in place for cases of ‘exceptional gravity’. In accordance with such provisions, Saviano still faces a custodial sentence because the formal charge is aggravated defamation.
At the conclusion of the first hearing at the Criminal Court of Rome on 15 November 2022, it was decided that the trial will be re-assigned to a new judge and adjourned to 12 December. The current Minister of Infrastructure, Matteo Salvini, has filed a petition to become a civil plaintiff. The Lega leader has also a pending defamation lawsuit initiated against Roberto Saviano in 2018: its first hearing is scheduled for 1 February 2023. Further, on 28 January 2023 another defamation trial instigated by Gennaro Sangiuliano, current Minister of Culture, awaits Roberto Saviano.
At the end of the first hearing in the Meloni case on 15th November, Saviano reiterated the central role that writers play in a democratic society: “My tools are words. I try, with the word, to persuade, to convince, to activate”. Exiting the courtroom, he argued that: “Democracy is based not only on a consensus that can lead to winning the electoral lottery, but exists if dissent and criticism are allowed. Without such premises there is no democratic oxygen”.
The perilous situation in which Roberto Saviano finds himself must also be taken into account. Life under escort, already a cause of marginalisation for journalists, was only necessary due to threats made against Saviano by organised crime and these threats should not be amplified through further threats made by high ranking politicians.
Joining the dissent expressed by Italian and European journalists’ associations, the undersigned organisations call on Prime Minister Giorgia Meloni to immediately withdraw the charges against Roberto Saviano. We support the recommendation formulated by Italian and European civil society and international organisations to the new parliament to act against vexatious complaints and to quickly adopt a comprehensive reform of both civil and criminal defamation laws in Italy. Finally, we urge Italy to bring forward legislation to tackle the use of SLAPPs in line with the EU Anti-SLAPP Recommendation of 27 April 2022. The Italian Government is also urged to give its full support to the Anti-SLAPP Directive as proposed by the European Commission.
OBC Transeuropa (OBCT)
Access Info Europe
Blueprint for Free Speech
Civil Liberties Union For Europe
European Centre for Press and Media Freedom (ECPMF)
Each week, Index on Censorship’s Mapping Media Freedom project verifies threats, violations and limitations faced by the media throughout the European Union and neighbouring countries. Here are just five reports from 9-16 February that give us cause for concern.
1. Ireland: Reporters receive death threats amid Dublin’s gangland feud
Irish secretary for the National Union of Journalists Seamus Dooley said he was “gravely concerned” by the threats. “Journalists and media organisations will not be intimidated by such threats, which have no place in a democratic society,” he said.
The death threats come almost 20 years after the high-profile murder of journalist Veronica Guerin, who dared to investigate organised crime in Dublin. “Successive governments have let down the memory of Veronica … by failing to provide the resources required to beat the gangs,” said Jimmy Guerin, brother of Veronica.
2. Romania: Journalist faces campaign of cyberbullying and online threats
Boróka Parászka, an ethnic Hungarian publicist and editor working at the public radio in Marosvásárhely/Târgu Mureş area, has become the victim of cyberbullying and online abuse. On 10 February, an online petition was published entitled We Are Sick and Tired of Parászka, which appealed to media outlets not to publish or broadcast any of the journalist’s “left-liberal” work. It claims her pieces are “subversive” (felforgató), that she aggressively attacks everything “Hungarian” and she “undermines the community interests”.
In the wake of the petition, derogatory messages were sent to Parászka via Facebook, including anti-Semitic slurs, sexual comments and threats of violence.
Some Romanian journalists have criticised the draft law as a means to protect politicians from criticism. “This law aims to protect the politicians from being criticised for their actions,” TV producer Radu Banciu said. “In the name of defending tolerance of group differences, they just want to control not only the mass media but also Facebook and other social media.”
4. Greece: New media law limits national TV channels
While there were no casualties, a fire broke out in front of the building and some vehicles were damaged. Firefighters rushed to the scene as police cordoned off the area. Tight security measures were put in place around the building.
The United States Ambassador to Turkey, John Bass, and his German counterpart Martin Erdmann have condemned the attack. “No violence against journalists is acceptable. Free and polyphonic press is essential to a democratic society,” said Bass.