James Lawless (Kildare North, Fianna Fail)
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Before I formally welcome our witnesses, I will go through some housekeeping matters. Senator Martin has sent his apologies. Deputy Farrell has indicated that he has to attend another meeting later and Deputy Ward will be speaking in the Dáil Chamber later. Members will, therefore, come and go during the meeting, as is the norm, due to other commitments and business around the Houses. I remind all present to turn off their mobile phones or switch them to flight mode because they can interfere with the recording system.

The purpose of the meeting is to have an engagement on the general scheme of the Defamation (Amendment) Bill. This is our first day of pre-legislative scrutiny of a Bill that sets out to overhaul our defamation legislation. We will have two sessions on it, the first of which is today and the second in two or three weeks. We have had input from a number of stakeholders in writing which has led to the groups and individuals appearing before us today. We are delighted to have such a wealth of experience in the room. I welcome Ms. Karyn Harty and Ms Lesley Caplin, Dentons; the Honourable Mr. Justice Barton, now retired, before whom I appeared once or twice in the past; Mr. Declan Doyle, senior counsel and Mr. Tom Murphy, barrister at law, The Bar of Ireland; and Mr. Kevin Harty, senior counsel. We have quite a range of expertise and experience across the witnesses and we are delighted to have them all here today. We also have representatives from the Department of Justice with us, as is the norm. The Department has a standing invite to every meeting and has quasi observer status and today we are joined by Ms Madeleine Reid, principal officer in the civil justice legislation section and Ms Noreen Walsh, assistant principal officer in the same section. They are all very welcome and I thank them for giving their time today.

I will now give the usual warning relating to privilege. Given the people that we have in the room, they will be familiar with this already but it is important that I run through it. Witnesses and members are reminded of the long-standing parliamentary practice to the effect that they should not, in the course of their submissions, criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or to otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. If their statements are potentially defamatory, they will be directed by me to discontinue their remarks and it is imperative that they comply with any such direction. Again, the reason most of our witnesses are here is that they are familiar with this.

We will take a short initial opening submission from each group. These will usually be three minutes and we have a timer to help people to stay on track. Then we will open the meeting up to members, each of whom has a six-minute slot to engage with the witnesses. We will have one or two rounds of engagement, as needs be. The three-minute opening slot might seem quite tight but there will be ample opportunity during the meeting for witnesses to engage. The opening slot is really just for everyone to say "Hello" and to kick things off.

Members can indicate to me that they wish to speak and I will determine the order in which they are called. We will begin with the opening statement from Ms Harty, followed by Mr. Justice Barton, Mr. Doyle and Mr. Harty.

Ms Karyn Harty:

I thank the Cathaoirleach for the opportunity to participate in this meeting of the joint committee to discuss the general scheme of the Defamation (Amendment) Bill. I am Karyn Harty, head of disputes at Dentons Ireland. I serve as global co-chair for disputes at Dentons, which I joined in 2022 after 24 years with another firm. I have specialised in media defence for more than 25 years, representing a wide range of international newspapers, broadcasters, magazines and book publishers and more recently a number of different digital media companies. I am also a regular speaker on the use of technology for legal services and I served on the Irish Business and Employers Confederation, IBEC’s artificial intelligence, AI, advisory committee.

I am joined today by my colleague Ms Lesley Caplin, of counsel at Dentons, who has specialised in media defence for 17 years and is an experienced civil jury practitioner. She also represents a wide range of clients including broadcasters, digital platforms, newspapers and publishers with a particular focus on digital media.

Our media practice globally focuses on media defence and we do not, as a rule, take claims against media organisations. We recognise that the Constitution guarantees a number of competing rights, including freedom of expression and the right to one’s good name, and we have sought to have regard to the need to balance rights in making our submissions.

The proposal to reform the Defamation Act 2009 is welcome. The legislation is not operating as it should and Ireland’s defamation regime in its current form is detracting from, rather than contributing to, the free and fair circulation of news and other discourse, which is so fundamental to our democratic system. As legal practitioners, we are perhaps uniquely placed to speak to aspects of the Act that do not work as well as they should and to highlight potential roadblocks in respect of the changes proposed in the draft provisions. In making written submissions to this committee, Dentons has sought to assist its work by suggesting alternative approaches that may be more workable, or at least less vulnerable to challenge.

In general, we support the scheme of the proposed reforms but aspects of the proposed changes seem to us to be either unnecessary or likely to give rise to problems. These are discussed in some detail in our submission and we are very happy to answer questions in this regard. We do not, for example, support the proposal to abolish jury trialsfor defamation and we are happy to expand on our thinking on that, appreciating that some others in the industry take a contrary view. Bearing in mind the importance of those affected by this legislation understanding its effect, we favour a stand-alone Act that would benefit from much greater clarity rather than amending legislation, which could only be properly understood by cross-referring to the 2009 Act and other legislation.

We are concerned that the serious harm tests proposed in the general scheme may not have the intended outcome in practice for the reasons set out in our submissions. We have, therefore, suggested an alternative approach of making the defamation claims in question actionable only on proof of special damage and we can speak to that further.

We welcome the proposal to make it easier to strike out claims for want of prosecution. We have raised a flag in regard to the proposed reworking of the defence of honest opinionand we have suggested a further look at the offer to make amends regime. We fully support the proposal to regulate strategic lawsuit against public participation, SLAPP, litigation and we have adopted the Index on Censorship submissions in that regard.

In closing, we emphasise that it is essential that any new regime has regard to evolving and emerging technologies and is consistent with both the Digital Services Act, DSA, and the Artificial Intelligence Act, which will come in soon. We look forward to assisting the committee with its deliberations.

Mr. Justice Bernard Barton:

I welcome the opportunity afforded to appear in person to discuss the proposals contained in the general scheme. Of these, and given the very serious consequences for the administration of justice that will ensue, if enacted, I am particularly concerned with the proposal to abolish the right to trial by jury in High Court defamation proceedings set out in head 3. Quite apart from the knowledge and experience gained over nearly 40 years of practice as a barrister and senior counsel with a special interest in the law of torts, as the judge with responsibility for the management of the civil juries division of the High Court from 2017 to 2021, I had the privilege of presiding over some of the most legally significant high-profile defamation actions of the past decade. It is from this well that the expertise I possess is drawn and informs the contribution offered for the committee's consideration.

The proposal to abolish the legal right to trial by jury in High Court defamation actions represents a far-reaching and fundamental alteration in the law, which, if enacted, carries with it serious consequences not only for the legal rights of any citizen or corporation bringing defamation proceedings to recover damages for injury to his, her or its good name but also for the administration of justice. The primary consequences of the proposal are inherently undemocratic.

The primary consequences of abolition of the citizen’s legal right to jury trial are twofold. First, the litigant is deprived of the right to choose whether or not to have the case heard and determined by a jury of fellow citizens and, second, as a jury will no longer be required to decide the facts in such cases, the public will, in effect, be removed from involvement in the administration of justice. In essence, if the proposal was enacted, the democratic input into the decision-making process of law inherent in a trial by jury would be extinguished. Moreover, it is imperative that the enormity of what is being proposed in public policy terms is fully appreciated by Members of the Oireachtas. Abolition of the legal right to trial by jury would constitute a fundamental and profound shift in public policy that has long underlain the administration of justice in Ireland both before and after independence. Put simply, the legal right to jury trial lies at the heart of our system of justice. For centuries it has been established public policy that in proceedings for serious criminal offences and torts, civil wrongs, fact finding should be carried out wherever possible by a jury of fellow citizens and not by a judge or judges alone, a bench trial. Indeed, the legal right to trial by jury for non-minor criminal cases was considered so fundamental to the law that it was afforded constitutional protection by Article 38.As long ago as the 18th century, the famous jurist Blackstone in his Commentaries on the Common Law observed in regard to public policy and the right to trial by jury in civil proceedings: "It secures in the hands of the people that share which they ought to have in the administration of justice, and prevents the encroachment of more powerful and wealthy citizens." In his opinion, it was the most effective and independent means by which the civil liberties of the citizen might best be secured and by which the litigant would be protected against judicial caprice, an observation which, in my experience, is as valid today as it was when first made.

The right to jury trial and the concept of jury trial come to us from the Normans. It was so central to the law that it was enshrined in the Irish Magna Carta. Not many people realise that there was an Irish Magna Carta, of 1216, but there was. The right to jury trial was enshrined in that statute. In modern terms, it is a declared right under section 48 of the Supreme Court of Judicature Act (Ireland) 1877. When we obtained our independence and a new system of justice for administering the common law was being considered and set up in 1924, the Oireachtas and Members of the Oireachtas had to consider whether or not to continue the right to civil jury trial, and they did, in section 94 of The Courts of Justice Act 1924. All the rights enjoyed by a citizen claiming an injury to his or her reputation or for any civil wrong recognised by the law at that time were enshrined in section 94. Only once since independence has there been interference with this right. That was in 1988 when the Oireachtas abolished the right to civil jury trial for personal injury actions in respect of personal injuries not intentionally caused.

I will pause there for a moment. Throughout the report upon which the scheme is based, it is repeated that keeping jury trial for defamation would be inconsistent because the 1988 Act abolished the right to jury trial in all civil proceedings other than a few cases. That is a completely erroneous statement of the law. It is totally and utterly erroneous. The objective of the proposal essentially is to reduce the time for the hearing of a case, reduce legal costs and deal with a perception of awards that are considered to be perverse and the costs associated with appeals. These are the stated objectives. These, in my respectful submission to the committee, are incorrect. It is a false premise. Essentially, what has happened is a bit of an accident, unfortunately. It is an accidental confluence. A month after the report was published on foot of which this scheme has been drawn up, the Supreme Court dealt precisely and exactly with the very mischief which the scheme proposes to address, namely, the levels of damages and how those might be controlled to introduce proportionality and consistency in awards. That has been done by the Supreme Court in the case of Higgins v. The Irish Aviation Authority at which I was the trial judge. Essentially, the court set out guidelines for all future cases heard in defamation, which will have to be given to juries. I fully expect that the objective that had been sought in the report and in the scheme will be met in this way. I will say only this and I will then close. The decision of the Supreme Court addresses the problem. If only out of respect for the Supreme Court, my submission to the Oireachtas is that the decision in the court should be given an opportunity to be implemented, to see how it works, and whether in fact, in practice, it achieves the objectives that have been set out.

James Lawless (Kildare North, Fianna Fail)
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I thank Mr. Justice Barton for that. We will get into the comments about Higgins in due course. That is a point well made.

Mr. Declan Doyle:

Good evening, Chair, and committee members. The council of The Bar of Ireland, welcomes the invitation to attend before this committee. We hope to be of assistance to the committee in its endeavours. The written submission the committee has contains our views as objective, independent players in the whole area of the law of defamation. I will be happy to deal in detail with some of those rather complicated matters.

The defamation law is a key area of law. Effective law on defamation requires respect between the competing right to a citizen’s good name free from unjust attack, and the right to the freedom of expression. These are constitutionally protected rights, as the committee will be aware. However, the implementation of practical, workable and fair legislation, together with common law, is difficult and complicated. The strengthening of the rights of one citizen can lead to the unfair weakening of the rights of another. The bar council, as the accredited representative body of the independent referral Bar in Ireland, represents experienced and expert practitioners in the area of the law of defamation. Our members represent parties across all aspects of the tort, including individual citizens, established members of the print and broadcast media as well as members of social media who publish material on a daily basis. However, it is important to remember, as we have pointed out in our written submission, the majority of defamation cases do not include members of the press.

We are a representative body and, therefore, it would not be appropriate for the council to take a definitive for or against view of the general scheme as a whole. We acknowledged that the complexities in the law of defamation are many and that reform in the area is needed. However, the council also observes that the amendments proposed in the general scheme are significant, far-reaching in nature and appear to be weighted more in favour of the defendant than the plaintiff in defamation proceedings. Many of the issues are legally extremely complicated and are perhaps matters more appropriately dealt with by those drafting the legislation and in discussion in a smaller forum than this one.

The council’s written submission has sought to focus on particular areas where we feel that the Oireachtas may wish to give greater consideration to the amendments being proposed. Essentially, the three big ticket items are the proposed removal of juries in High Court defamation actions, the proposed introduction of a serious harm test and the proposed amendments in the areas of the section 26 defence relating to fair and reasonable publication on a matter of public interest.

The council is not supportive of the abolition of juries in defamation cases because they play a key role. I endorse what previous speakers have said in this regard. We also believe that it is likely that the abolition of juries will in fact result in an increase in costs, particularly related to complex pre-trial applications before a judge alone. The abolition of juries would also remove the very important peer review element which is central to both parties in a defamation action, whereby a citizen's reputation can be vindicated or a defendant’s publication can be assessed by a jury of peers.

We have grave concerns about the serious harm test. We submit that it needs a lot of tidying up. We have anecdotal evidence from the UK, where a serious harm test was introduced, that it has led to an explosion in legal costs. Effectively, there are two trials now. There is the first trial, which is the trial to determine whether a serious harm was done and that is almost akin to a full trial of the case. Legislators should bear in mind that if the plaintiffs get over that stage, they then must be entitled to serious damages, having suffered serious harm. We have grave reservations about that but are very happy to engage on trying to make something like that work.

Finally, the section 26 defence clearly has not worked. It is, in our view, a classic example of the need to be careful what you wish for. It is a section that was urged hard by the media in the run-up to the 2009 Act. A whole lot of criteria were put into the Act, largely at the behest of the print and broadcast media to set up this defence of fair and reasonable publication on a matter of public interest. To date, it has never been successfully mounted in the defence. The hurdles put in are too many and too difficult to satisfy.

The council supports anti-SLAPP measures but believes this should be done in conjunction with the European Union which is working on this on a Europe-wide level. To jump ship early and do something here, independent of the European process, would not be in the interests of either citizens or media defendants. We remain committed, as a representative body, to being part of the process making changes to the law of defamation. We are not stakeholders and do not have a vested interest but are available at all times to engage constructively in what is an important exercise for the Oireachtas.

Mr. Mark Harty:

I am a member of the Bar since 1996 and a senior counsel since 2012. I have significant experience in media law where I have acted for both plaintiffs and defendants, both as junior counsel and senior counsel. In 27 years of practice, I have developed a deep appreciation of the seriousness and fairness with which juries undertake their task and the worth attached to their verdicts in the public domain.

Before the Oireachtas considered reform of defamation law preceding the 2009 Act, a working group of experts was assembled to review the options. The report that informs the current proposals is not the result of a similar exercise. This report relies heavily on the reforms in England and Wales from 2013 but does not contain any analysis of the impact of those reforms. Defamation legal costs in the High Court in England are now many times greater than costs in this jurisdiction. Experts estimate that the costs of a two day defamation action in London are now between £1 million and £2 million, figures which completely dwarf those in this jurisdiction. In effect, only the very rich can now pursue an action for defamation in England and Wales.

The proposal to abolish juries is made in the report on the basis that the majority of stakeholders have sought this change. It is better to say that the majority of stakeholders believe that certain issues regarding jury actions have caused significant difficulties and that situation needed to be remedied. Many media organisations would understand that a jury, comprising as it does of their natural market, will be more sympathetic to their journalism than members of the judicial cadre. It should be noted that entirely neutral bodies such as the Press Ombudsman did not consider it appropriate to abolish or to seek the abolition of juries.

The rationale for abolishing the right to a jury trial as set out in the report is in part grounded on incorrect assumptions regarding pre-trial and appellate delays. Similarly, criticism of jury actions regarding costs is not borne out when considering the effect of abolition in the UK. However, where the report is correct is regarding the issue of excessive jury awards. Such awards are unsatisfactory for all parties involved as they give rise to inevitable appeals. Almost simultaneously with the publication of the Department’s report, the Supreme Court delivered its decision in Higginsv. the Irish Aviation Authority, IAA. That decision is vitally important to this committee’s consideration of the issues for two reasons. First, it clearly sets out the importance and value of juries in determining defamation cases. Second, for the first time ever, the Supreme Court has clearly set out a mechanism by which a jury can be given clear guidance as to the appropriate level of damages in any given case. In other words, the decision in the Higgins case corrects the most significant complaint regarding jury actions..

The value of a jury verdict in their favour is invaluable to both defendants and plaintiffs It carries far greater weight in the mind of the public than the decision of a judge alone. The public values the verdict of juries and trusts them above all others, which is why the Constitution protects and the public expects, in the ordinary course, trial by jury in serious criminal matters. A verdict of a judge could be discounted on the basis of some connection, bias, prejudice or caprice, more often imagined than real, but discounted all the same. These questions do not arise in relation to juries.

Recently the international charity Reporters Without Borders has ranked Ireland among the very best in the world for press freedom. I believe our current ranking is number two. In doing so, it commends the proposed reforms but notes concerns regarding the removal of the involvement of juries in defamation actions. I would echo those concerns in the interests of both the ordinary citizen and a free press. The impact of the decision in Higgins v. The Irish Aviation Authority should first be analysed before any drastic step is taken in this regard.

James Lawless (Kildare North, Fianna Fail)
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I thank all our witnesses for their opening statements. I will now go around the room and as I indicated earlier, members will have six-minute slots to put questions and elicit responses. We can do that a couple of times, as needs be. Senator Ward is first.

Barry Ward (Fine Gael)
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I am a member of the Bar and so I am not totally disinterested in this. I practice in this area on behalf of both plaintiffs and defendants.

I absolutely endorse the submissions in respect of jury trials. It is absolutely short-sighted to suggest that they should be abolished because they are a really important part of the fairness and the commonality of defamation proceedings. The word "caprice" was used in regard to judges. I would never say that but the reality is that the ordinary man on the street has a much better appreciation of how an ordinary man on the street is affected. The input of a citizen on a jury is really important and I hope our report will reflect that in due course. I agree with the submissions that this aspect in head 3 should be reconsidered. That said, there is room for suggesting that the awards in that regard should remain within the judicial purview rather than being left to juries. I would accord with some of the submissions in that regard. It makes sense for juries to be making findings of fact rather than findings of damages.

I have two questions for all of the experts who have come before the committee today. First, in head 4, subhead 3 there is a reference to serious financial loss relating to the impact but I do not think there is a definition of same. Do any of our contributors have a view on what that definition should be or to what extent it should be defined? Specifically in the context of a corporation taking an action against an individual or another corporation, should serious financial loss be defined and, if so, how should it be defined?

My second question is on transient retail defamation. I have some sympathy. I have appeared in cases of this. What is set out in head 6 around allowing retail premises to ask a reasonable question is fair enough. I have argued unsuccessfully that there is a qualified privilege for a retailer to ask someone if they can prove they have paid for an item before they remove it from the premises, but what is most important in that, in my experience of dealing with litigants in this area, is the respect factor. There is a world of difference between the "Stop! Thief!" characterisation or "Oi, you, have you paid for that?" and "Excuse me, I wonder could I see your receipt". There is a world of difference between the two and I do not know if it is possible to frame in the legislation some kind of accommodation of the manner in which the question is phrased as opposed to the bald indemnity these heads appear to give to retailers in that regard.

Then there are two other areas. I am saying this as much to get it into the report as anything else, that I have a real bugbear about amending legislation amending the law and saying "the Act is amended in the following regards" which makes it absolutely illegible for ordinary people. I support the idea that when we are amending legislation, we reproduce a consolidated Bill so that it is very clear what the law actually says. In the context of defamation particularly, that is something that should happen. I would be interested in anyone's comment on that.

On the Statute of Limitations, which is reduced for defamation, is there room to say it should be longer and that while the statute is one year, where there is a reasonable explanation, there might be a further year's extension or something like that? It is not in the heads. Does anyone have a view on that? Those questions are directed at no one in particular.

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.

Mr. Justice Bernard Barton:

I agree with that. It is a practical response to what Senator Ward raised. It is a very practical way of dealing with it and it worked in the past.

Mr. Tom Murphy:

On the point about how retailers should deal with customers, my understanding of the law is there is already an applied law that if you approach the situation in the correct manner and deal with people in a respectful way, you are covered by qualified privilege. What that seems to be doing is to try to implement it on a statutory basis. There is a provision in existing law for qualified privilege. That is somewhat of an amplification of that. That law has always been the way.

Barry Ward (Fine Gael)
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What I am asking is whether the head gives a bald indemnity for someone to almost say what they liked in demanding a receipt or proof of payment or the genuineness of a note or whatever it might be. My concern is whether it removes the requirement of a retailer to be respectful or polite or do the witnesses still take the view that would be a defamation were they to do that?

Mr. Tom Murphy:

It is very difficult. The Senator is asking us to look forward to how this might be interpreted down the line. It is a hostage to fortune in my personal view.

Mr. Declan Doyle:

The proposed head 6 seeks to posit factual events in a statute and that just never works. I will return to this in relation to section 26 and the fair and reasonable thing. It is trying to anticipate events and try to provide for situations. The question the Senator has raised is a really good one. He says it is not defamatory for retailers or people acting on their behalf to do the following, but the Senator has asked whether there are circumstances in which what they are asking, in accordance with the Act, could in fact be defamatory. The answer to that is probably yes, but then we are back to a court trying to work it out and considering something like they did not ask for a receipt in accordance with the Act and in effect said the person robbed that. A section like that, like the existing section 26 of the Act, does not work in practical terms because, at the end of the day, a court is left trying to deal with the factual situation as prescribed or as set out in advance by a section of an Act. That just does not work in practice.

Mr. Mark Harty:

Senator Ward spoke about damages and juries. That has undoubtedly been a difficulty and a problem but I would say it has been resolved because now a jury can be given clear direction as to what damages they may award. Unfortunately in the past, where that direction has been given, people have given figures at absolute opposite ends of the scale. The defendant will suggest tiny damages and the plaintiff will, unfortunately, nominate excessive damages. That is no longer possible in the scheme. But there are also other ways to deal with it. For example, it could be possible to create a statutory scheme whereby the judge could be the person who makes the final award of damages, so the jury's award could be advisory of damage but not necessarily the final orders. Such verdicts do exist in other jurisdictions, in the US in particular where they contain what is called a special verdict which is an advisory verdict as to damages. It is a way for the jury to indicate how serious it believes the issue to have been yet at the same time to keep the verdict in line with accepted jurisprudence. There are a variety of ways that could be done.

James Lawless (Kildare North, Fianna Fail)
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I will move to the next speaker but there will be plenty of chances to contribute. I am trying to give everyone similar time. That discussion reminded me of a case, Nolan's tavern, where a barman reprimanded an individual. Senator Ward is saying he acted in that case, so we have better experts in it than me. The rationale of the case was that the greater the exertion that was given to the accusation by the barman in that case - it could be a shopkeeper - the less qualified the privilege it attracted. The same as malice destroys qualified privilege, so too may an overenthusiastic reprimand or check. It is in degrees. I do not know to what extent that is followed. Like Senator Ward, I have attempted to argue that unsuccessfully in the past.

Pa Daly (Kerry, Sinn Fein)
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I was also going to mention the Statute of Limitations. One year is too short. There has been some discussion of people who were accused in the wrong in shops.

Most of the shops with which I had dealings when I was a solicitor provided poor or no training for their employees, and that was the reason things were said that should not have been said. That can be overcome with training. Given the way in which the cases were approached, the Statute of Limitations was too short and perhaps should be extended. It is difficult to strike a balance between the right to a good name and the right to press freedom. It is probably the case that most of the witnesses saw the documentary on phone hacking that was broadcast on BBC last week. Amazingly, some of the editors of the newspapers who were involved in tapping the phones of victims of bombings or relatives of murdered children then blamed the system, claiming it was easier to settle cases and that maybe they did nothing wrong.

It is important to take the inequality of arms into consideration. By and large, that is the situation in most of these cases. Mr. Harty or one of the other witnesses referred to stakeholders. The majority of the stakeholders who have informed this piece have not been individual citizens with experience of being badly treated by print media or the likes of social media companies. In my experience, it is difficult to get the latter group to take stuff down as quickly as possible. There are measures here to address some of that.

We in Sinn Féin are opposed to the abolition of juries. We have argued that North and South. I am aware of the arguments that are made for abolishing juries. The same argument, namely, that the only way to reduce the cost of insurance policies is to reduce these mad verdicts that are given by juries and the huge compensation claims, was made back in the 1980s in the context of personal injuries cases. As all present are aware, and there have been a lot of amendments and legislation since then, all with the aim of reducing insurance costs, that simply has not happened. I do not think it would happen in this scenario either. I do not see that it is any argument for abolishing juries either.

I welcome the points made by almost all the witnesses, including Ms Harty, who has primarily represented the defendants in these cases. The heads of the Bill do not refer to the Statute of Limitations, but should it be extended to at least two years without having to give a reason, similar to the situation for personal injuries cases? The witnesses should have enough time to make their points.

Ms Lesley Caplin:

I thank the Deputy for the question. It is not in the heads of the Bill, possibly for good reason. Although a year may not be sufficient, it is extendable to two years. As the Judiciary have the ability to be flexible within that, it probably satisfies the needs of both sides. Harm to reputation is evident pretty quickly after its occurrence. It is not like other torts that a person may need more time to discover. I think Ms Harty would agree that one year, extendable to two in the correct circumstances, satisfies both sides.

Ms Karyn Harty:

It has to be borne in mind that the potential of proceedings carries its own slight chilling effect. There has to be some level of discipline in that regard. For example, if there has been a complaint of defamation against a media organisation or an academic who has written a paper, not knowing what will happen or the potential for proceedings to issue existing for an extended period would be a very unsatisfactory position. The provision of one year, with scope to extend, gets the balance about right. In my experience, the vast majority of plaintiffs move quite quickly.

Mr. Mark Harty:

I will come in on that point with a contrary view, if I may. I primarily deal with non-media defendants where the issue arises. A difficulty that has arisen is where people have been defamed by way of credit reports, for example, that were put in three or four years previously. Those reports had not been uncovered because the people in question were not notified of them. It is only when they sought to renegotiate a mortgage, for example, that they discovered an utterly erroneous report was put in four or five years previously. That is a problem that arises, unfortunately, because there is no discoverability test set out in the Statute of Limitations as currently enacted. Although it is undoubtedly true that in media cases a person will know the world at large has been told something bad about him or her, it does not necessarily arise in other situations, potentially including online defamation. Although the statute may be correct, the introduction of some form of discoverability test might be appropriate in certain circumstances.

Mr. Declan Doyle:

It is a reasonable effort. The one-year period is very tight. The Bar Council does not have a strong view on this but, from my experience, the circumstances in which a court will extend the one year to two years has given rise to a string of cases and authorities. A body of law has grown up in respect of these cases, many of which are not media cases. The body of law in respect of the circumstances in which a court should extend it to two years has turned into a kind of extension of the unconscionable delay in bringing the proceedings. It is another layer of unnecessary complexity. Once that element of discretion is introduced, people will go to law about it. It is already giving rise to more litigation and costs and all that. A two-year statute, rather than one year with the discretionary facility to extend to two years, may be more appropriate. That is a personal view rather than anything on behalf of the Bar Council.

Mr. Justice Bernard Barton:

One of the proposals considered in the report relating to this issue was that the period of limitation or the running of time should be paused if and when litigants or potential litigants engage in the alternative resolution process. One of the objectives of the report is to encourage people to consider mediation and go to alternative resolution means of resolving their issues. Unfortunately, that did not find favour with the review. I do not know why that is the case. We already have it in our law. In the personal injury sphere, when a person who goes to the Personal Injuries Assessment Board, PIAB, time stops, by statute, until the person comes out of PIAB. The person must then decide whether to accept the award or go on. In the meantime, time is not running against the person. I do not doubt that there is a genuine desire to encourage people to consider alternative dispute resolution, especially in cases that are fairly open and shut and might lead to an offer of amends quite quickly. The question of pausing the statute if people engage in an alternative resolution should be revisited. We just has to specify what that period would be. It would have to be a reasonable period. We do not want it to go back to being six years. It would have to be a reasonable extension but it is something the committee should reconsider as it would encourage people in this regard. Solicitors already have a statutory duty to advise their clients. It is not necessary to put this into the proposed Bill.

There is already a statutory obligation to say to a client, "Listen, you should look at this". To put that into the Bill might encourage more people to take that up.

Pa Daly (Kerry, Sinn Fein)
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Does Mr. Justice Barton mean an injuries board-type scenario for pausing?

Mr. Justice Bernard Barton:

There should be, if only to do that. Obviously, it would increase the time but it would have to be a reasonable time and I hope it would encourage people to look at it and seriously consider advice about alternative dispute resolution, and especially in defamation. I believe the committee could do that.

While we are on this, one of the difficulties is encountered in the report, which is very detailed. I am aware that officials from the Department are here and I would not like anything that I have said in writing or anything I have said here to be taken as undue criticism of the Department. In fact, it is quite the opposite. There is a huge body of work done here, which must be recognised. It is very thorough research. Unlike a judge's judgment, there are all the propositions, the arguments for and the arguments against, and then recommendations, but what one does not have is a rationed or reasoned argument as to why we are recommending option one or option four, as opposed to why we are not recommending options three and seven, for example. One does not know quite how high a particular option is. In chapter 8, there is a kind of small summation as to why a proposal is going through. It is certainly not as reasoned as one would like to see it, especially for some very significant changes. This is just another example where we do not know why a particular option, which was considered, did not make it. The committee should review it and have a look at it again.

Lynn Ruane (Independent)
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I am the first non-legal person, or person who has not studied law, to speak. I feel as though I have just walked into the wrong classroom or something. I am trying to grasp the language and how we are speaking about the subject. I have a few questions and perhaps some of them may seem a bit basic given where the conversation has been, but it is just so I can fully understand. As I see it, "serious harm" is not defined within the Bill. Should we have a definition of "serious harm" within the Bill in relation to litigation or defamation?

Mr. Harty referred to abolishing the right to a jury trial and that the report, as set out, seems to be grounded on some incorrect assumptions. I would love to get an insight as to what those assumptions are. I am glad there is such a unanimous declaration of why, and for what reasons, we should hold onto juries in the courts. I was interested to hear Deputy Daly speak about how Sinn Féin does not support juryless courts, and how Sinn Féin recently mooted the idea of changing its position with regard to the Special Criminal Court. Perhaps it will ensure that we abolish the Special Criminal Court and ensure juries exist in all of our democratic institutions.

Pa Daly (Kerry, Sinn Fein)
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For the first time today so.

Lynn Ruane (Independent)
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As an aside to that, I wonder also about the bodies corporate and the public authorities piece. In reading Ireland's anti-SLAPP network submission to the Oireachtas Joint Committee on Justice, in head 4 under serious harm in relation to bodies corporate and then again in head 5 in relation to public authorities, they recommend that public authorities should be prevented from bringing defamation actions. What are the witnesses thoughts on that?

With regard to the strategic lawsuits against public participation, SLAPP, measures, the network submission also suggests that SLAPPs are not confined to one cause of action. In head 24, where it defines proceedings against public participation as proceedings brought under another part of the Act against an act of public participation, they suggest that limiting anti-SLAPP provisions to defamation could restrict effectiveness of Ireland's overall legal framework to tackle SLAPPs. Do the witnesses have any insights or comments on that in the context of the other areas of action where the anti-SLAPP measures would need to be protected? These are two kinds of side questions around defamation, the understanding of defamation and the laws, and how they need to be obviously reformed.

It may have been Ms Harty who referred to emerging technologies. Will the witnesses comment on that a bit more as to what we need to look at there. In a sense Twitter and social media are not emerging technologies any more, but I do not believe there is any case law in Ireland. Where does defamation stand around the retweeting of information? I believe there was a case in the UK with a politician. What if somebody retweets or shares something that may be defamatory, even if he or she does not add context, only retweets, and never puts words on it or agrees with it? Does this legislation go in any way to address social media at all, or the use of technologies with regard to defamation? Potentially, what should we be doing and looking on that in the context of this Bill?

My other question relates to another area that I have worked on around non-disclosure agreements. In all the research I have done around non-disclosure agreements, I see there is also a very consistent use of the use of non-disparagement clauses within contracts. Is there a connection between them? If we reform the law around defamation, non-disparagement clauses seem to be an even lower bar than defamation. It is just about disparaging. While we say there are problems with our defamation laws and how they are used, how restrictive they are, and how they get in the way of expression, accountability or the press, on the other hand, we have employers introducing non-disparagement clauses. How would these two things interact with each other? Where does the law stand on non-disparagement clauses? I can see a connection between the two but I just do not know exactly what it is in the context of this legislation. These are my questions and comments.

James Lawless (Kildare North, Fianna Fail)
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I thank the Senator. Who would like to respond first?

Ms Lesley Caplin:

I may start at the end. There have been quite a few cases in which we have acted where non-disparagement clauses and defamation have been alleged. The starting point for the different treatment is the fact that in the case of a non-disparagement clause there are two parties contracting. There are two private individuals and they have signed an agreement in which one agrees not to disparage the other. This is a very different realm to defamation, which is certainly codified in law and in legislation, and through the courts if there is an issue. They interact in that often when somebody says something defamatory about somebody else, if they have contractually agreed not to disparage them, they are doing that as well and there is a private action in damages there which in the case the Senator refers to would be on the part of the employer. I agree with the Senator that it is difficult to see, in the context of legislation like this, how non-disparagement is dealt with. The answer probably is that it is not.

Mr. Mark Harty:

The Senator asked about the incorrect assumptions. There are a number of incorrect assumptions and I should be clear that they are not made by the author of the report. The author of the report is relying on a number of different sources who make assumptions. For example, there is an assumption that juries will not understand law. Juries do not decide questions of law. The questions of law are all decided by the judge who then allows the matters to go to the jury on the facts. It is an incorrect assumption to say that the jury is ever going to really need to understand anything to do with the law. They will simply be directed as to the test they must apply and that is it.

There are other assumptions relating to the delays. Unfortunately, in recent years there have been significant delays in defamation actions being heard. However, those delays deal with infrastructural matters where insufficient court space and resources have been allocated to jury actions. As a result of that under allocation of resources, there have been significant delays. Other complaints raised all relate to appeals up to the Supreme Court and back. The key case is Higgins v. the Irish Aviation Authority, which went to the Supreme Court twice. The reference to that in the report dealing with delay, blames the jury for something in which it had no role or part. Jury actions are in fact more efficient. Unlike a judge's decision, there is no requirement for a reasoned decision from a jury. Your case is heard, and you usually have your verdict within 24 hours. One particular judge-heard defamation action in which I was involved, took 30 days to hear and almost one year to get the judgment. The delays were far greater in the judge alone action, than in a jury action. That is what I say in terms of the incorrectness of this. They are blaming the jury element of the current system for the problems, and it is not correct to say so. Similarly, when it comes to costs, it is an incorrect assumption that a jury must increase the costs with an action. In fact, I would say it is quite the opposite. The experience in the UK has shown that costs have gone through the roof since juries were abolished. That could be due to a variety of things. It would be quite difficult at this stage, and I would be careful when analysing how that has happened in the UK. There has certainly been a vast increase in the number of pre-trial applications such as serious harm tests and other things. These have caused costs to balloon in the UK. None of that has to do with jury actions. It is an incorrect assumption that jury actions are more expensive. No evidence is being relied on to make that case. All that is being said is that an action was expensive because it was a jury action. That is not the case. Neither is it the case that an action took a long time to be heard because it was a jury. It is simply an incorrect assumption as it relates to those matters. The anti-SLAPP question is an interesting one, as to whether an anti-SLAPP Act, of itself, would be a better way to go. There are other actions, which could feature in such things. What occurs to me would be privacy action, breach of confidence actions and economic conspiracy actions. Each of those could be used as strategic litigation against public participation. In effect, we could imagine attempts to quash whistleblowers on the other side. It would be of value if this committee were to look into that issue as a broader question. I am not entirely clear where the European proposals now stand. I cannot assist the committee on that. However, it is interesting to consider looking for a broader range of actions and not be simply limited to defamation. For example, malicious falsehood action would not be covered under the current definition of the SLAPP. That is a simple one. Those are the two answers on which I think I can be of most assistance. I do not want to take too much time.

Mr. Justice Bernard Barton:

I want to make an observation on what I think is a very good question. It might be of assistance to enlighten the committee though of my own experience. For four or five years, I was responsible for management of the civil jury list, which includes defamation cases. I got into trouble a number of time as a sitting judge. I was rapped on the knuckles by the then president of the High Court for making public statements about the incredible delays in the list. From experience, during nearly every legal term in those five years I had to tell a courtroom of litigants and lawyers that I was sorry, but I did not have a judge for them. The president would regularly call me to say he could not give me another judge. He needed that judge to go somewhere else. The report is replete with criticisms of the delays, which all point to juries. It basically says that by having juries we have all these delays. It takes far too long to get cases on. When I retired in 2021, there was a litigant before the court who had been waiting for a trial since 2015. Admittedly, that was exceptional, but two or three year delays were not unusual. The reason for that had nothing whatsoever to do with jury trial - or trial by jury. It had everything to do with resourcing. I am long enough in the tooth that I can tell the committee that when we had judges and courtrooms in jury cases, there was no problem. You could have had a trial in six months. Simply put, the number of judges and resources simply has not kept up with the explosion of litigation on every level. The Government has taken a decision and more judges are now being appointed. That is very welcome. I was involved in part of the submission to the Government looking for more judges. One of the reasons was basically to deal with delays in the jury list. I was surprised the State had not been sued by somebody and brought to the European Court of Justice because of the delays. What I find to difficult to understand is why Department officials appear to have bought the argument that it is juries and the jury system, which is responsible for these delays. That is completely incorrect. That is not the reason. With sufficient resources people would be able to get their trials done in six months. It could be turned around in the morning if you could produce the judges and the resources.

On the point made about assumptions, section 5 of the Act requires this review to take place. The Act sets out that the Department review should have regard to changes in other jurisdictions, which it has. It has looked at Canada, Australia, Northern Ireland, England and Scotland. It has done all of that. It took what, in its view, were important decisions, which influenced its recommendations, and which have taken place since the passing of the 2009 Act. This is supposed to be a review of the 2009 Act. The interesting thing when you look at it is that they talk about the de Rossa case. They talk about Leech and they talk about McDonagh. The interesting thing is that none of these cases has anything to do with the 2009 Act. They all arise from defamations, which occurred before 2009. They were decided after, but they have nothing to do with the 2009 Act.

To put this in some context, 1,885 defamation cases commenced between 2014 and 2020. Of those, almost 1,200 were in the High Court. Of those, approximately 164 in that period were resolved in the face of the court, either by a full hearing or by the parties reaching a settlement. To a certain extent that explains the long list delay that exists of cases waiting to get on. The report identifies four cases in which the superior court, the appellate court, reversed a jury award. However, anybody reading the report could be forgiven for believing that juries regularly get it wrong, and the awards are disproportionate and excessive. Out of that entire number, you could count those on one hand. Two of those cases have nothing to do with the 2009 Act. It is a seriously false premise.

The other incorrect premise on which the proposals are based - heavy emphasis is laid on it in the report - is in respect of Higgins v.The Irish Aviation Authority. A jury had awarded approximately €370,000 for aggravated damages, punitive damages, general damages. Following the Leech case, it was decided that counsel should be able to make submissions to juries on award levels. The report is resplendent with remarks about how the outrageous decision of the jury in Higgins v.The Irish Aviation Authority was reversed by 80% by the Court of Appeal, which unanimously condemned it and reduced the award by 80%. Actually it reduced it to €76,500. What the report does not tell us is that the Court of Appeal decision was reversed unanimously by the Supreme Court. There is a really good example of a premise which is no longer factually founded on what is correct. It is completely different. In fact, in the Supreme Court two of the judges wrote long written judgments in which they said they thought the awards of the jury should be left intact.

The report does not make any mention of Gordon v.The Irish Racehorse Trainers Association, I think again for accidental reasons because unfortunately the decision of the Court of Appeal in that case came after the report was published. I am not seeking in any way to criticise the Department's review of this. The fact of the matter is that Higgins and Gordon were decided after the report was published. The committee is in a position to consider the law as it is today, not as it was at the time the report was published. The relevance of Gordon is that a €300,000 award by a jury was unanimously upheld by the Court of Appeal. That does not appear in or influence the report or this scheme in any way.

One other critical case had a big impact not just on defamation but on all tort cases, namely Kehoe v.Raidió Teilifís Éireann. I wondered why this case does not bear a mention anywhere in the report, particularly as the report deals with live broadcast defamation on radio or on TV. The report specifically deals with all of this, it is exactly what happened in Kehoe and RTÉ yet there is no mention of the case. I could not help wondering whether that was because the award of the jury was the lowest award in the past 50 years and it did not really suit the argument to highlight that case. RTÉ had made a very strong submission to get rid of juries so it would not suit them very much to include a case where they had actually done extremely well. The case has a huge significance for all tort law yet it does not bear a mention anywhere. There is no explanation as to that.

As I mentioned at the outset, the actual explanation for the abolition of juries given in the report, insofar as there is one in chapter 8, is that it would save costs, shorten cases, lead more consistent and reliable rewards, and that it is inconsistent to keep juries in circumstances where they were abolished for everything else. All of those premises are wrong. We have been through this before. The Oireachtas was persuaded in 1988 to get rid of juries in personal injury actions because it was told by those who favoured abolition that premiums would go down as awards would go down, cases would take less time and it would be less expensive. Where have we heard all this before? We have been there. What happened? Awards went up, costs went up and the number of cases increased. It had the very opposite result to what had been said was likely to happen.

We do not have to go back to 1988. It has happened in England since 2013. They have gone in that direction in Scotland now. In the UK, there has been an explosion in legal costs. It has not had the desired effects at all, in fact the reverse is the case. This is not properly dealt with at all in the report, in my respectful submission. It talks about the changes which have occurred in England and what happens in there, damages and everything but there is no mention of the impact. Has it shortened cases significantly and has it reduced legal costs? I draw the committee's attention to the recent case of Rebekah Vardy v.Coleen Rooney. The legal costs in that case were more than £4.5 million. There is no basis for the idea that getting rid of juries is going to reduce costs. It is false. Those who propose the abolition obviously advance it on the basis of those claims but the claims do not stand up to scrutiny. I am sorry, I have gone on far too long.

Mr. Mark Harty:

I agree with most of the latter half but on the first matter, as Senator McDowell will know well, it is very difficult to prove a negative. It is very difficult to give evidence to prove that one is a child abuser. That is one of the reasons, and the most basic reason, why he who asserts must prove. The assertion is that made in the defamatory statement. On the implications of that for that in the running of defamation actions, it is difficult to conceive of a defamation action where the plaintiff does not have to get in the witness box. Even in those actions, and I have been involved in actions where the defendant has been made to go first, it still is necessary in real terms for the plaintiff to get in the witness box. It is those circumstances where it is always open to the person who has made the defamatory statement to put it to them that the statement is true.

Mr. Mark Harty:

And I would have no difficulty with that.

Mr. Mark Harty:

No, and in relation to the affidavits which are required, they do not necessarily require that one proves that it is untrue. That simpler environment in an affidavit might perhaps meet Senator McDowell's suggestion because at least then the person is somewhere on oath saying that it is in fact untrue when the affidavit which would ordinarily be required is simply that it is defamatory and not necessarily that it is untrue.

Mr. Declan Doyle:

I respectfully agree with Mr. Harty on the burden of proof. It is impossible to prove a negative. I welcome, on behalf of the Bar Council, Senator McDowell's impassioned plea for the retention of juries. We support it and repeat our submissions in that regard. It is a trap that could easily be walked into under pressure. I urge legislators to listen to people who do not have skin in this game - we are honest brokers in that regard - and do not do anything rash about the abolition of juries.

The only other thing I would say is more in response to Senator Ruane's questions about innocent publication and social media. She was seeking opinion on retweeting and so on. That is a time bomb. Even when the new legislation is drafted and brought into law, we will all be back here in a few years when the European Court of Justice in Luxembourg and our own Supreme Court deal, as they will have to, with the vexed question of the circumstances in which Internet service providers and platforms can be considered liable or publishers. That is a time bomb waiting to go off, and nobody knows which way it will go. Of course, they have an immunity under section 27 and the various European directives but when they are put on notice that immunity is potentially lost. It is definitely a bomb that will go off some time in the next ten years and the Oireachtas will have to deal with that.

Ms Karyn Harty:

I will comment on a number of points made by Senator McDowell. He spoke about section 26. One of the concerns we have in Denton Solicitors is that a further provision is being inserted into that which limits it to the media. That seems to us to be wrong and we caution against that.

Ms Karyn Harty:

It was, but it was always broader in the case law. Although it was centred around responsible journalism as a concept, it was always slightly broader than that. The case law here, Hunterv.Duckworth, for example, and Leech v.Independent Newspapers (Ireland) seemed to be broader. I feel the narrowing of it to purely relating to media cases is a mistake. It is a feature elsewhere in the heads of the general scheme. The section relating to alternative dispute resolution and other methods of resolution seems to be quite focused on an assumption that these are all cases involving the media, which, as has been well rehearsed, they are not.

On the judge-only trial, I have been doing this work as a solicitor for more than 25 years and primarily acting for media defendants, whether broadcasters, newspapers or whatever. A lot of that has been for defendants like tabloid newspapers. I have never in all that time got costs award in favour of a tabloid newspaper from a judge. Even where we have won, even in the Supreme Court, we have never got our costs. That says something about how judges, perhaps understandably, perceive different organs of the media. We make this point in our submission. There is a risk that, whether it is entertainment websites, magazines or non-broadsheet type organs of the media, may be disadvantaged by the abolition of juries. It has always been a concern of mine as a practitioner that that is a risk. It is born of that real-time experience that even where we have won a case hands down we have not got our costs.

Mr. Justice Bernard Barton:

I welcome that proposal. It is very good. I would go along with Mr. Harty and Mr. Doyle on that. It would be a useful reform. I would go that far so that the plaintiff should have to give evidence. The jury should see them mess up.

Mr. Declan Doyle:

I have been doing these cases for a very long time too and have been involved in most of the cases that have been discussed here today. I have never seen a case in which the claimant or the plaintiff does not get into the witness box. I cannot even conceive how it could happen, even in circumstances where the defendant has to go first.

Mr. Justice Bernard Barton:

I also welcome Senator McDowell's contribution and that of Senator Ward on the principle of retaining jury trials. In England, the judges have become the subject of a huge amount of abuse. I know this from my colleagues. I do not think I am betraying any confidences but judges involved in defamation cases in England since abolition of jury trials, and one in particular, have been subject of huge online abuse by someone who will have a view about the case or was a witness in the case or even a party; there is no identification. This is exactly what has happened in the UK.

Some organs of the print media, and one organ in particular, claim they cannot get a fair trial from a judge because the judges mostly come from Oxford or Cambridge and they have a view about this particular organ. That cannot be allowed. It is wholly to be avoided. We avoid this kind of problem by having a jury trial sitting.

Niamh Smyth (Cavan-Monaghan, Fianna Fail)
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I thank the witnesses for their contributions to this fascinating discussion. I come from the perspective of chairing the Oireachtas committee that carried out pre-legislative scrutiny of the Online Safety and Media Regulation Bill. I completely concur with Mr. Justice Barton's comments in the sense that, for the most part, there is a recognition of a sense of privacy in respect of judges and the judicial system in this country. There is a respect for not going there in terms of invading people's privacy, unlike the attitude to public representatives, whereby we are seen as fair game. Whatever people's perspective is on that, I would hate to think our judicial system might ever be affected in such a way.

Comisiún na Meán has been set up to deal with the regulatory aspect of online safety and media regulation. Mr. Doyle touched on the online safety issue in response to Senator Ruane. There has been a type of wild west situation in that regard, with people being able to say what they like and then repeat it. There is sharing of material, retweeting and all of that. Does Mr. Doyle have any more to say on that? Does he see the commission we have established having any positive impact?

A comment was made at the start of the discussion, I am not sure by whom, that the numbers are not where we might perceive them to be in respect of cases taken by the media. I was surprised by that. Do the witnesses have any further comment on this aspect?

I think it was Mr. Harty who said that the proposed Bill is really weighted in favour of the defendant rather than the plaintiff. Jury trials are a big part of the argument he is making around that. Are there any other factors to which he would refer?

Mr. Mark Harty:

It was not I who made that comment. It was one of the witnesses from the Bar of Ireland.

Niamh Smyth (Cavan-Monaghan, Fianna Fail)
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Okay. Very compelling arguments have been made on both sides, both by the witnesses and by my colleagues, on the question of the retention of jury trials. The argument has been made clearly and well that the proposed legislation, as currently set out, will not achieve what we are setting out to achieve, which is to reduce costs and the length of times people have to wait for their cases to be heard. Mr. Justice Barton spoke about the impact on our neighbours across the water of the removal of jury trials. It is having the reverse effect to that intended, with the judicial system and judges in particular coming up against criticism and abuse. We see all that goes on online. If the situation continues as it is, nobody will want to go into public life. It will be the same for judges and the judicial system. Nobody will be willing to take on the job if we do not address these issues.

This has been a really fruitful conversation. I would appreciate if any of the witnesses might tease out the points I have raised.

Mr. Declan Doyle:

The first question the Deputy asked was addressed to me. The setting up of Comisiún na Meán ties in with what she described really well as the wild west situation we are facing. It really is the wild west out there and the extent to which it is controlled by law, whether by statute or the courts, is something with which we are only starting to grapple. Both the legislators and the courts are probably behind the game on this and need to catch up. I ask Mr. Murphy to deal with how Comisiún na Meán links into all this because he knows more about it than I do.

Mr. Tom Murphy:

The great thing about the setting of the new commission is that it creates the capability to be prescriptive from the get-go about how social media and online publishers behave. It creates an ability to be prescriptive about what they have to do in regard to complaints and dealing with and taking down abusive material. Unfortunately, I do not think the proposals we are dealing with today address those issues in any great way at all. They are almost two separate and distinct things. The commission will not be able to deal with tweets, retweets and things like that unless they fall into certain categories that would come under the definition of online abuse. This touches on what Senator Ruane asked. The role of the commission and the proposals we are looking at are separate issues. However, the great thing about being able to be prescriptive is the capacity it gives to direct how the bigger entities that run the social media organisations behave from here on and to direct the penalties that may be applicable in certain circumstances when they do not abide by the rules that are set.

Ms Lesley Caplin:

I agree with everything that has been said. However, there is one point at which the online world and the proposals we are dealing with today converge. That is at head 34, which relates to a notice of complaint procedure for online publication. The convergence is not necessarily with the Bill to which Deputy Smyth referred, but there is a dovetailing with the proposed digital services legislation. That creates a sort of template for a notice and take-down regime. Our experience is that tech companies are often doing their best to try to deal with the volume of complaints that come in but there obviously is a difficulty there. What I see as a difficulty with what is proposed in this Bill is potentially a difficulty with the proposed digital services legislation more broadly, which is that it imputes actual knowledge on the part of a social media platform, for example, or another intermediary service provider where such entities have failed to take down some material. It imputes actual knowledge by putting them in a place whereby they have to determine whether something is illegal or defamatory and assess whether the person complaining about that has no defence to that allegation. My respectful submission is that they are not the correct entities to be making that assessment. There is a disconnect there between what is proposed and what can actually happen in practice. If, for example, there were a court that was in a position to make that determination, it would seem to me a much more effective way to deal with the issue.

Ms Karyn Harty:

Submissions were made to the Department of Justice at an earlier stage. As I recall, Twitter submitted that it would like a mechanism whereby there would be a sort of fast-track application to court to get such issues determined and it would then comply with any order made. I thought that was a very pragmatic solution in circumstances in which the company was really struggling, as Ms Caplin said, with the volume of complaints and also with the practical difficulty of determining for itself whether something was problematic. This is something that possibly should be looked at again. Those submissions still hold true in terms of the practical experience of the companies in question in dealing with this issue.

Ms Karyn Harty:

That situation does arise. I can think of a specific example of where an individual in another jurisdiction was in a situation in which the person's life was at risk. Such scenarios do arise. I do not think such things are speculative.

Ms Karyn Harty:

No. As Mr. Doyle said, that is going to be an eternal problem.

James Lawless (Kildare North, Fianna Fail)
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We have heard it advanced as a rationale by the social media companies that in certain countries, during the Arab Spring, for example, people were at risk and their identity had to be anonymised. However, as Senator McDowell correctly noted, there are many people who perhaps do not deserve such anonymity in this and other jurisdictions.

Mr. Mark Harty:

On the Deputy's comment about the Judiciary, we have been blessed in this country with regard to the respect in which the Judiciary is held by the citizen, the Oireachtas and the Executive. That has been repaid by a Judiciary that is broadly as representative as it can be, considering the qualifications required of the people of the State.

Certainly, since the change of law in the UK, there has been a growth in hostility towards the Judiciary. One would not look forward to a day where we could see a headline in a newspaper saying “Enemies of the people”, for example, which has occurred. That is at the highest level.

At the lower level, whereby the Judiciary are brought into these fights between public personaeabout their reputation and are made to be players in that game by virtue of having to give those decisions, that is avoided by reason of the jury. That is one of the great values of the jury, plus the public appreciates the value of the jury. We have seen that in the Depp situation where, in effect, Mr. Depp won because the American jury was seen to have trumped a judge alone in the UK. That is how the public reacts to it. The public does not think that 12 people could have had some small reason. I use the word “caprice” because that is what the public will perceive or rely upon. It is not that I believe that there is necessarily any caprice but that is what the public might see. We must value our Judiciary and the manner in which it is held, and that is one of the great values of the jury action.

James Lawless (Kildare North, Fianna Fail)
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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.

Ms Karyn Harty:

I thank the Cathaoirleach very much for those questions and I will deal with the last one first. There is a Civil Liability Act issue which comes up a great deal and was brought into particular focus, oddly enough, by a defamation case against RTÉ a few years ago to do with suing all of the necessary tort-feasors. That can be quite complicated in a defamation action and it can result in people being brought in who you might think, maybe disproportionately, ought not be. That is a complication. I am not sure there is an easy solution for it here today, but the Cathaoirleach is completely right to raise it as an issue. The reality in law is that each of those republications, emojis and reactions constitutes a further publication. That is the reality of it, as the Cathaoirleach knows. It is a complicated issue.

On the point, which we make in our submission, as to whether reform is overdue, that is a reflection, I suppose, of how fast-moving this all is. When you think of how we got to the 2009 Act, it was a very long process which I believe involved a 2004 report done by Hugh Mohan, as I recall. That took a long time but that legislation does not deal with the technology world at all because the smartphone really only took off in or around 2010. If we consider the change that has happened in that period, our reflection that it is long overdue is reflective of that and of how things have changed. It is a very important area which ought to be revisited if it is not working in practice, and we have given a number of illustrations in our submissions as to how, practically, there are issues with the law and how it is operating. We believe reform is needed.

Mr. Mark Harty:

The Cathaoirleach will not be surprised if I were to say "Yes" in respect of the first question. There is, I believe, on average, 14 weeks in a legal year which are given over to juries.

That is an approximation but I think it is correct. It will not surprise the Cathaoirleach, in light of what I hope is a certain enthusiasm I have displayed to the committee, that I believe most of these problems can be solved by more juries rather than fewer juries. Therefore, if there were longer terms, the problems with delays should be significantly solved.

On the suggestion of the jury liability judge quantum approach duality, it is quite valuable that a jury would mark the seriousness of the defamation and not simply the question, but that does not necessarily mean it cannot simply be answered by the question of whether the defamation is serious or very serious. My suggestion that the jury could give an indicative verdict as to damages and the judge could then recalcitrate that in line with judicial authority also does the same thing. There are a variety of different ways that particular circle could be squared.

On the question of long overdue defamation reform, the one thing I will say is the loudest voice often seems the most correct and in our world the people who most often want the media laws to be redefined are the media organisations. They are the people most likely to say they need an overhaul on every occasion. That is perhaps why it is deemed so necessary. I also agree it is a fast-moving area and there are not any simple answers, though those issues tend not to affect the organisations loudly arguing our defamation laws must be reformed. In that regard, I will come back to the report of Reporters Without Borders wherein we are deemed to have effectively the freest press in the world right now. Certain organisations and jurisdictions will see our media laws as being very different from theirs, especially the US. A very different attitude is taken there. Fortunately, things like the National Enquirerare not commonplace in this jurisdiction and could not exist here because of our defamation laws. Some might well see our laws as requiring reform when a proper assessment might indicate such reforms are not ideal. That might assist.

Mr. Justice Bernard Barton:

I endorse both those views completely. The question the Cathaoirleach raises is a pertinent one. It is not the first time it has been raised. It was raised in 1991. There was a review in that year and it was suggested then. It was reviewed again in 2003, but what Mr. Harty outlined was not one of the proposals on the table. It was either take away the damages aspect of it altogether or leave it all together. In 2003, the decision was to leave the damages assessment with the juries, and that was reinforced with the 2009 Act.

In other countries it is quite interesting in that there seems to be a difference. Much of this is set out in the report. In Canada, there are some provinces where it is a matter of choice. It is, by the way, a matter of choice here. People are not forced to have a jury; it is simply their right to choose. In a world where we are recognising the right to choose in law, that is what we are talking about. Parties are not forced to have a jury, rather it is a right to choose one if they wish in the High Court. It is the same in Canada. Quebec and Ontario must be looked at differently because they have different civil law systems, but in the common law provinces, if I can put it that way, there is a right to trial by jury if the parties want it. They must say in advance whether they want it.

In Canada in 2020, trial by jury was essentially got rid of for most torts, but funnily enough, defamation was one of the torts where the Canadians did not do so. This was specifically because, looking at the Canadian assessment of this, the verdict of the jury - we heard this earlier - is a verdict of the people; the tort is committed in the public. It means a lot to the litigants that it is the people, represented, so to speak, through the jury, who vindicate their names. That was one of the reasons identified in Canada for retaining jury trial for defamation when it was being got rid of for many other torts. It was the same in Australia. In New Zealand the right is still there, though it is not used much. I think there were only three or four cases in the past five or six years there. Again, the authorities had to go through that process and they decided they would leave it to the parties to decide whether they did or did not want trial by jury. In British Columbia, if some of the parties want it they can have it. In some of the provinces in Canada there is a judicial discretion there. We need to be careful. The evolution of the law in Northern Ireland since partition and in England and Wales is very different. The changes in England in 2013 and in Scotland in 2021 are changes made to judicature Acts that were passed there after our independence. We need to be really careful about saying this is what has happened over in England. Over there it was a presumption, not a right, that a person was entitled to a jury trial. Here it is a right.

The proposal the Cathaoirleach raised that juries might not be involved in the assessment of damages is one I endorse somewhat. I will go halfway. I endorse what Mr. Harty said. It is useful in a defamation action that at least a jury could give an indicative award having been properly instructed by a judge and having been given the Higgins parameters, if I can put it that way. Then the jury can retire. The parties would then be free to say something to the judge. The Supreme Court said in Higgins that the trial judge should invite the jury to bring an award of damages within fairly wide parameters. What might be said is, in a case like this, having regard to everything inside these parameters, it is a matter for the jury. They may go outside it if they wish but the advice is they should do that. That process should be allowed to develop. The Act is going to continue to be reviewed. If it does not work then we can look at it again, but we must give it a chance. As I said, there is this halfway house that the award could be indicative. The jury has heard all the evidence and made findings of fact. The parties can then, if they wish, make representations to the judge and say we think they have it wrong. It is certainly a proposal worth looking at.

Ms Karyn Harty:

On the Cathaoirleach's point about reform and what the committee is going to hear in a couple of weeks' time, a point that will be made relates to section 26 and the complexity of understanding the provisions of it. Our media clients have a concern that juries get confused by the complexity of the different factors that are put to them. That is something the committee will hear about. It is a valid point and something that points to a more simple section 26 that could be achieved. The analogy I use in the office is the Fr. Ted's car scenario where it has been tapped at so many times it is now unrecognisable and overcomplex. Section 26 as it currently stands is a bit of a Fr. Ted's car. It is important to bear in mind - this goes back to a point made right at the start - that when we have amending legislation, we can overcomplicate things and that makes it very difficult for people to understand. This is an illustration of that, so I would strip it back to a simple public interest-type defence. We would not then have the same issues with the jury struggling with understanding the concepts.

James Lawless (Kildare North, Fianna Fail)
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There is another Fr. Ted's car. I think D'Unbelievables have the same broom being in use for 40 years with only five new handles and six new brushes. It is the same idea.

Mr. Declan Doyle:

I endorse everything that has been said. It is unusual that people who represent, by and large, different sides of cases, and indeed a former judge in that, should have such unanimity on how the law should look. I respectfully suggest to the committee that in itself is indicative of the good faith of the various actors in this room.

I absolutely agree with the last thing that Ms Harty said about section 26 and Fr. Ted’s car. It is all in the written submissions. I would extrapolate from that the same idea in relation to the proposals in the report about damages, for example. There are a number of things in there that should now be added. The judge or jury, in assessing damages, should be told of various things, for example, A, B, C, D, E, and the jury should be told they must have regard to the value of money. These things happen all the time anyway in the hands of a competent trial judge. Overcomplicating section 26, section 31, damages – all of these things – leads to greater uncertainty rather than less uncertainty and leads to more disputes, more litigation and more costs. Simple is good. I respectfully suggest to the Oireachtas to try to keep it utterly simple and then let the lawyers and judges get on with interpreting that.

Mr. Mark Harty:

I agree with that. There is often a situation whereby what started off as judicial guidelines to an approach that should be taken by juries end up becoming tramlines for the jury, where each and every item is carefully ticked, whereas I think a jury can understand a simple definition such as “fair and reasonable publication”. However, the minute we have to go through different stages to prove it, it then becomes almost impossible. In fact, each of those stages should not be essential but rather matters the jury should consider as to whether these steps are taken rather than simply being prerequisites. I think then the defence could operate.

James Lawless (Kildare North, Fianna Fail)
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That concludes our questioning. I think everyone who wanted to get in has got in. A couple of members were watching online and keeping an eye on things as well. That concludes the meeting. That was an extremely comprehensive and useful deliberation. I thank all our witnesses for their time today.

There are a couple of housekeeping matters. We normally publish all the opening statements we receive on the committee’s website. I ask the members to agree that. Is that agreed? Agreed. Very good. That is that.

That was extremely useful. Just so witnesses know the procedure, we have a second round of this. We do not always do that. It depends on the complexity or scale of the items being considered. On anything substantial such as this, we often do two sessions. We have today’s hearing and a second hearing in about a fortnight’s time, where it is large media organisations. The National Union of Journalists, NUJ, will be coming in I think. We will then produce a report. After all the deliberations have concluded, we will produce a report that will summarise both the discussions that took place, the key points that emerge from each session will be noted, and we will then come to a series of recommendations as a committee. That will then go to the Houses, the public domain and the Minister. In theory at least, it informs the development of the Bill, and I hope in practice too. Sometimes they coincide but not always. We certainly hope that will be taken into account when the Bill is moving before it comes to Second Stage and progresses onwards. It is extremely helpful to have the contributions. I wish to note as well, and it was said by one of the witnesses, that there is a great degree of overlap and agreement even though witnesses may come from different sides of the discussion. That in itself is significant and I note that.

That concludes our business. I do not think there is any other business that our members wish to raise.

Mr. Justice Bernard Barton:

We are first up, so to speak. Given the process the Cathaoirleach outlined, I would certainly welcome an opportunity to return if anything arises from subsequent exchanges. If that could be of assistance, I would certainly welcome an opportunity to return to deal with any questions that might arise.

James Lawless (Kildare North, Fianna Fail)
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I thank Mr. Justice Barton. That is noted and appreciated. We do not normally do a follow-on because the difficulty, as he would understand, is if there is a reply, then there is another response and then another response. However, the offer is very much appreciated. There may be an opportunity to make a final submission and perhaps respond to points in the next session. Sometimes we do that. If a point is made that a witness wishes to respond to or address, they are given an opportunity to make another submission in writing. That could be accommodated. I thank Mr. Justice Barton for his willingness to do that. It is very much appreciated.

That concludes the meeting. The members are anxious. The meeting is now adjourned until the next round of this discussion on the general scheme of the defamation Bill.