Pa Daly (Kerry, Sinn Fein) | Oireachtas source

In the context of my background in and thoughts regarding defamation law, I remember working in an office in Dublin some 25 years ago. One Saturday afternoon, we received word that members of a family were concerned that a Sunday newspaper, when a story was being written about somebody else, was going to, as those family members said, defame a relation. The newspaper was going to state that another member of the family was a drug addict and that she had worked in prostitution. The family members said that was not true. The woman in question had passed away the year before. We were not a legal practice that specialised in libel, but we contacted the newspaper in question. As the lady concerned was dead, I believed the usual restraints and the care and caution that would usually have been taken were dismissed. The dead cannot be defamed and a deceased person cannot sue, and that was the attitude of the newspapers. Without some protections being in place therefore, powerful institutions, newspapers or online creators would abuse their positions.

I welcome this review. I mention specifically the changes that would make it easier and less expensive to seek a court order directing online service providers to disclose anonymous posters of defamatory material. I say that because many people defamed online, be they contributors to Facebook or Twitter, are defamed by people they do not know. Putting pressure on the social media companies is important in this regard. There is much in the review I welcome. As the Minister said, the legislation must protect the right to freedom of expression, while also safeguarding the right of citizens to a good name and reputation. This is about striking the right balance between these two aspects, which is going to be important and also difficult. Enshrining the right of access to justice, as the Minister said, is a core principle and an important one.

Since that time 25 years ago, some cases in this context have been heard by the European Court of Human Rights. There was the Putistin v. Ukraine case, where it was established that the right of reputation can follow down from a deceased person to a member of the family. Although there have been slight changes, it is important to keep an eye on this. Therefore, the balance between the right to maintain a good name and freedom of speech can be difficult to find, but we must strike it fairly. Everybody is entitled to their good name. Many times in recent years I have heard from schoolteachers who have told me that damaging content, whether videos or comments, have appeared online about pupils of theirs. Those teachers had no success in dealing with the social media companies, which were difficult to contact and slow to remove any content which had been posted. With the massive profits these companies make and the tax breaks they receive must come responsibility. I spoke before about Ireland not being a haven for bad behaviour by these large companies, be that in the context of tax, data protection or defamation.

Similarly, many people who have been slighted, abused, offended by false, misleading comments or blatant lies feel that the expense of taking on a media outlet has put them off doing so. We must introduce legislation which allows access to justice without, as the Minister said, unnecessarily hampering freedom of speech. We must also call out certain attitudes towards freedom of speech and defamation that exist. There is still the legacy of section 31, which meant that people in my party were not allowed to speak on behalf of a union. That attitude is still prevalent sometimes, especially among some older members of the media. It was a millstone around the neck of free speech. Sometimes the NUJ was not good at attacking that limitation on free speech. Undoubtedly, most publishers of content, be they newspapers or social media platforms, are powerful organisations with significant resources. They are able to fact check stories and, like the insurance company that settles a case against the wishes of a policyholder, if media outlets take a business decision not to publish a story they feel they can stand over, that is their prerogative. It should not, however, hinder the rights of ordinary citizens to take a case.

I note the Minister's recommendation is to end the use of juries in defamation cases. We must, though, bear in mind that the same arguments about extra legal costs and delays were mentioned 35 years ago when juries were abolished in personal injury cases. The insurance companies lobby said that would lead to a reduction in the cost of car insurance, but we all know what happened since. I also welcome the proposals to support an increased use of alternative dispute resolution and prompt correction and apology where mistakes are made. It is already the case, however, where a case is taken for defamation or libel, that an apology given at an early stage will reduce the amount of compensation that can be given. There is a general view in respect of having to satisfy extra tests and conditions, and the Minister said that "Given the importance of safeguarding access to justice, the report recommends against introducing any such general measures". I agree with the Minister on this aspect and I welcome her decision in this regard.

These issues are of course not confined solely to the law, and reforms to the law will not affect media diversity and media ownership, as well as the matter of social media platforms and their policies. The Future of Media Commission and the Online Safety and Media Regulation Bill will be instructive in this regard and represent opportunities to address these matters. Press freedoms and media diversity should also be protected by these measures.

The defamation review gets quite a number of things correct, as I have said. There are a number of recommended measures that will speed up the hearing of claims, including the power, as the Minister mentioned, to dismiss a claim if it has not been progressed in a two-year window. Another improvement is the introduction of the proactive case management system, because the courts can become clogged with claims and counterclaims, distracting the courts from other some other business. The anti-SLAPP provision is also important, because the court should be in a position to dismiss claims that are vexatious and merely looking to silence a critic of someone involved in big business. It should work hand in hand with the recommendations around legal aid, although the review does not establish a clear view on that matter. However, that can be discussed at a later stage.

Many claims against individual defendants are never intended to end up in court. People want a quick resolution. Some people do not want the money, so long as an apology can be received and the content is taken down. Many people who take cases ask for a donation to be made to charity. They are not in it for the money, but they want an assurance that a person will not do it again. That is fair and should apply from the people at the top of big business to an ordinary person. There should not be two tiers. Some journalists have called that some people should not be taking claims. However, I disagree with that completely. More detail about all of that needs to worked out, especially in relation to eligibility for legal aid. However, it represents positive steps. Mediation will also be an improvement, although there are some circumstances in which it will be inappropriate. Mediation, in effect, usually takes place, in any event, between the lawyers.

On the move towards judge-only trials, as I said, it might be a negative move. A serious harm test may prove too high a barrier for many. The Government’s thinking on the serious harm test seems to have been shaped by some lobby groups that are concerned by issues such as people who are accused of shoplifting suing for defamation. However, this is an area to be looked at for people who are falsely accused in the shop, for example. They need to have some access to justice. Many of those types of cases came back to security guards who did not receive adequate training and falsely accused some people. I have seen many such cases over the years.

We need to be careful about civil law being hollowed out to suit the interests of business and its lobby groups. The resources of trade unions or consumer groups and of the Irish Council for Civil Liberties, ICCL, which does good work, to engage in those areas are stretched across a number of areas. Many of these groups can lead the State up a certain direction, as we have seen in the area of insurance reform. The Government needs to reflect on striking the balance between free speech and the right to a good name.

I note what the Minister said about her justice plan for 2022 and a general scheme of defamation in quarter 4 of this year. I look forward to seeing that and working with her on it. I also look forward to seeing what the Office of the Attorney General returns with.

I would like to finish on a press freedom matter. When we speak about press freedom around the world, I wish to condemn in the strongest terms the shooting dead of Shireen Abu Akleh and the injury to her colleague, who is in a stable condition. Shireen Abu Akleh was shot while reporting for Al Jazeera on an Israeli Defence Force raid on Jenin refugee camp in the West Bank, as I am sure the Minister is aware. According to some media outlets, there was no gunfire exchange and she was shot by Israeli snipers while wearing her press vest. Will the Minister and her Government to work through the institutions to ensure this behaviour ceases and moves are made towards peace and justice in the Middle East? Will she support our call for a public investigation or public inquiry through the International Criminal Court, ICC?

See this speech in context