James Lawless (Kildare North, Fianna Fail) | Oireachtas source

That is a good point. The prestige or status attached to jury trial would seem to have trumped, as Mr Harty has said, the UK judgement and it is a good point.

I believe that most if not all of the members who wished to come in have done so, so I will put a number of my own questions. I typically go last because I allow other members to come in. I preside over it and I then come in at the end. It does mean, however, that my questions may be a little bit miscellaneous because many of the points I may have had at the start have been addressed by the members in the course of the deliberations. In any event, I have a number of questions in no particular order.

Starting with the juries and their role, and this was a feature in the written submissions, a number of speakers referred to the supposed delays which have arisen are as a result of juries. A number of speakers have largely dismissed and rebutted that, stating that is not really the case. One of the points which strikes me, and I believe a few of the submissions referred to this, is that juries are empanelled in civil matters for, I believe, four weeks, possibly two weeks a term or four weeks in a legal year or something like that. It is not a standard or a sitting practice. Would there be a merit to empanelling juries more often and having juries available for six weeks a term or whatever it happens to be? I have often seen cases waiting to get on, another case is running, you hear it will run for two weeks, and that is it gone, and then in other cases we are back to the following term and so forth. If there is a delay, and it remains to be seen if that is actually correct because I have heard other points about the appellate courts and other procedures, and we all know there are multiple reasons a case might not get on for some time, is that one possible solution, to have more juries empanelled more frequently?

My next point, I believe, has been largely addressed with the Higgins decision but it still strikes me as a possible solution, if there is a problem in the first place. As Mr. Justice Barton said, there were only four cases cited where an appellate court overruled a jury award. One thing which struck me when this emerged first was the idea that we could retain a jury as the arbitrator of truth and as the verdict giver in deciding whether a defamation had occurred, but when the jury had done its job and retired from the arena, the judge could decide on the level of damages. The jury would be responsible for liability and the judge for quantum. That struck me as a possible compromise in all of this if there is a concern as to the juries making off-the-wall awards and so forth. I still believe there is still a very important role for juries and for the ordinary man and woman on the Clapham omnibus, or the 46A, to represent society and to be aware of the nuances. Language and patterns of behaviour can change, particularly in the age of social media. It may be important and we may need to have people to be able to decipher a nuance on a social media thread or whatever where a judge may not have recourse to the wider insinuations, etc. There is certainly a very good argument that the jury would be the arbitrator of truth or of liability but that the judge could actually set the award.

My other question, which may have been touched upon by a few speakers already, and I do not want to pre-empt it because we have a number of media organisations appearing before the committee in two weeks’ time when the second round of these hearings will take place, and I expect we will hear many good reasoned arguments from them, but it is often said in the round that Ireland’s defamation system is long overdue an overhaul, that it is outrageous and needs to be revamped, etc. I struggle a little bit with that. I obviously have an open mind as to what we will hear in two weeks’ time, but when people say “long overdue”, the legislation is from 2009. The Minister who brought it in is still very much part of these Houses. It is not that long ago. I am not entirely sure why it might be characterised as being long overdue when we have only just had a review.

Separately, I also struggle, and the point has been well made by some of the speakers here, in that many if not the majority of actions do not even involve a media organisation at all. It may be an individual, be it a business or another individual, and so forth. I would be curious to hear what the witnesses think about that point, and without pre-empting what they will say, it is appropriate they would have the right to address that point while they are here.

My final point, and it has been touched upon by Deputy Smyth and by one or two others, concerns how the defamation law has adapted to the Internet age. This is perhaps one area in which the 2009 Act would not have been aware what was about to unfurl in respect of social media in particular. I know we have this dichotomy of the platforms. Are they a publisher, a host or where do they sit? They will argue one way and we will argue another. Even beyond that, however, it strikes me that there are so many different permutations, for example, somebody posts a comment on a page that may belong to or is run by a particular organisation, user, club or association, etc., someone else shares that comment, someone else likes that comment, somebody else gives another reaction such as a smiley face, a thumbs-up or a thumbs-down, how we can appropriately capture liability? Is it the person who administers the page? Is it the person or organisation that hosts the page? Is it the publisher or platform that runs that? Is it the person who commented, the person who liked, the sharer, or is it all of the above in different degrees? Where do we sit on that question?

There are a few questions there but I am interested in any thoughts our witnesses may have on any or all of the above and I am happy for them to contribute in whatever order they want.