Ms Karyn Harty:

On head 4.3, we said in our written submission we take the old "we wouldn't have started form here" position. We perceive quite significant issues with trying to define serious financial loss in that context. Part of the reason is that in looking at what the courts have done in assessing a threshold of seriousness, in Ireland they have said there is no threshold for defamation, so if someone has been defamed, that is enough. In other jurisdictions such as England and Wales there is a notion of a real and substantial tort and you must go over that threshold. That was even before it imposed the serious harm test. All that is tied in with the fact that defamation is actionable per sewithout proof of special damage. We have suggested a better way home would be to take these three defined heads and make them actionable only on proof of special damage. The law before the 2009 Act, where there was a distinction between libel and slander and slander was generally not actionable per sesave in four specific categories, actually worked very well. As a practitioner, it was very easy to fit cases into the rubric and it would be preferable, easier and less vulnerable to challenge to move away from the notion of the serious harm threshold and simply make those actionable on proof of special damage. That avoids the problem the Senator quite rightly identified in relation to defining what is serious financial loss.