Sorca Clarke (Longford-Westmeath, Sinn Fein) | Oireachtas source

I welcome the time to contribute to this important debate. As recognised in the report, the Constitution provides a number of rights that offer protection against defamation but also against a complaint of having made of defamation, including the right to freedom of expression, the right to protection of a good name and reputation and the right of access to the courts.

I was disappointed to read in the report that some stakeholders considered the law affords too much weight to the protection of reputation at the expense of freedom of expression, because the core of this issue should not be a reputation versus freedom of expression position. It should be that what is free of influence is being put out into the public domain and is factually correct. When a statement or media coverage is factually correct, it is essential that the misuse of defamation laws to censor others and to prevent journalists from reporting on issues or stories that are in the public interest is wrong. That is not a right that anybody has, nor should it ever be.

While reform of this legislation is required and is something we have previously called for, it is important for that balance to be struck in the legislation but also in fair access to procedures to right a wrong, including the courts. Defamation cases are too often seen by the public as being restricted to people with financial means and not something they themselves could afford. For that reason, the inclusion of defamation in the Civil Legal Aid Act to remove the financial barrier of taking a defamation case for ordinary, working people is very important.

On the recommendation to make mediation an obligation, I ask the Minister to consider and recognise the situations where that would simply not be appropriate, for example, where there is a background of coercive control or domestic abuse between parties. It should go without saying that solicitors inform clients of alternative dispute resolution pathways open to them. It is unrealistic to expect every single person to have full knowledge of all procedures and all options open to them without receiving professional advice. This recommendation, coupled with the inclusion of the Civil Legal Aid Act, would work very much towards removing additional barriers.

I am very uncomfortable and do not agree with defamation cases being decided by a judge or with the limiting of juries’ roles in deciding whether a statement is defamatory, with the judge then deciding the level of damages. There is a level of double standards in that which I find very uncomfortable. In one aspect we are saying we will trust the jury's ability and determination but outright reject it in another. The Minister mentioned the award of €10 million being reduced to €250,000 on appeal. Yes, there is a financial cost to that, but the very crux and core of that was the fact that somebody was defamed, and that should not be lost. Also, I do not agree with juries being forced to justify their decision, which is, after all, based on the information presented to them.

Ultimately, people have a right to their good name and a right to be able access procedures to right wrongs in regard to that. We will support reforms that remove barriers for ordinary people to defend this right on balance with the responsibility of those who put information into the public domain for it to be correct, and doing that in a manner that also ensures defamation laws are not used to censor or prevent journalists from reporting stories in the public interest.

Perhaps the Minister would provide an update on the review of civil legal aid scheme contained in the justice plan for 2021.

I would like to come back to a statement the Minister made in her opening remarks around prompt correction and apology where mistakes are made. We have all seen the situation, particularly in print media, where there is a statement put out that is categorically incorrect and found to be incorrect. However, the apology that comes after is in no way, shape or form given the same level of coverage in that print media as the original allegation. That may seem like quite a small issue, but if a factually incorrect statement about you is printed in a newspaper, the very least you would expect to have faith in that is that the apology would receive the same level of prominence as the allegation.

See this speech in context