Holly Cairns (Cork South West, Social Democrats) | Oireachtas source

Any defamation law has to carefully balance freedom of expression and the protection of journalism as well as the constitutional right to a good name. To say our current defamation laws have gotten that balance wrong is a gross understatement. When we have people with very deep pockets potentially putting a title out of business by virtue of a successful action in the courts, it goes beyond the question of protecting a person's good name. The cost of a single case with high payouts and legal costs could bankrupt smart media outlets and even larger media companies can only withstand so many.

The financial and legal vulnerabilities of the press are well known and are exploited in order to suppress stories. The former FAI chief executive John Delaney once told his board that he was pressing on with a weak defamation case against TheJournal.ie "so they don't write anything about us". The recommendations contained in this report would go a long way towards the reform needed in defamation law. The removal of the role of juries, in particular, would drastically reduce the costs associated with these cases.

The report did not recommend a book of quantum for damages, which would have provided additional protection against massive damages awards. The explanation given was that the reputational damage is mainly intangible and hard to put a number on. I would like to see this teased out a bit further during pre-legislative scrutiny. It strikes me as strange that when issues with high personal injury claims were highlighted as having an impact on the insurance industry, a book of quantum was put together. The courts managed to put a value on the loss of a limb, but putting a price on degrees of reputational damage is something beyond us. I am not a legal professional and by no means am I suggesting that this would be simple, but I do not think it is impossible.

Related to this is the question of whether there should be a test of reputational damage before deciding whether a defamation case is taken, as is the case in the UK. I do not understand why this review may have erred on the side of caution here because it comes down to whether defamation, in and of itself, is worthy of a trial and damages, regardless of whether there was a material impact on someone's life.

It is undeniable that there have been defamation cases where people have claimed their professional reputation was in tatters and were afforded high damages as a result without ever really having to prove it. The contradiction comes in where there is a recommendation in the report to introduce a test of serious harm for transient defamation claims. These claims make up the majority of defamation cases. They are often related to providing or refusing retail services and are taken by ordinary citizens, not the rich and influential people we typically associate with defamation cases. Are we saying we can test and quantify reputational damage or harm caused by defamation to ordinary working-class citizens, but in the case of someone with a high public profile and a lot of money it is impossible to do so? If we are trying to move away from defamation law being a law for the rich, we need to ensure we are treating everyone equally.

It is very welcome to see a recommendation for the introduction of an anti-SLAPP defence, which would introduce the right to seek dismissal for groundless suits that seek to suppress journalists. These defences were proposed by the European Commission and were dubbed Daphne's law after the Maltese anti-corruption journalist Daphne Caruana Galizia, who was assassinated by a car bomb on 16 October 2017. At the time of her death she was facing more than 40 lawsuits. She described the emotional effect these cases had on her as "Churning, churning nerves all the time". She stated that her biggest concern was that "because people see what happened to me, they don't want to do it. It's scared others off".

We have always known the vulnerabilities inherent in our defamation laws, but there has, until very recently, been absolute reluctance by successive Governments to act. In fact, this review, which was provided for in the Defamation Act 2009, was supposed to take place seven years ago. The blunt truth, which I think we all need to acknowledge, is that it was not changed because the current laws benefit politicians.

This is not a party specific issue; Deputies and Senators across the Houses have taken defamation cases against media outlets for decades. Under the reforms recommended in this report, many would have been thrown out immediately. We are in somewhat of a unique position as legislators that we write the laws that shape how the media can operate, a media that holds us and everyone else in the public interest accountable. It is our responsibility to ensure that the law allows them the freedom to do so and allows investigative journalists to do their work to the fullest extent possible and the media to expose corruption, backroom deals and lies. This House has abdicated that responsibility for a long time. It is very welcome to see reform is on the way and it is essential that legislation is enacted as soon as possible.

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