Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

It is 12 years since the enactment of the Defamation Act 2009. Although section 5 of the Act required that a review be conducted, we are only now seeing the produce of that review. In fact, section 5 stated that the review was to be completed within a year. However, we probably are in a stronger position for not having had that review after such a short period of time. When trying to appraise the impact of legislation that is seeking to change how court cases happen and how the legal system operates, we are better off waiting for a period of some ten years. There is a benefit, therefore, in the delay that has occurred.

As a barrister, I have represented many litigants who have taken cases in defamation. I also have represented many litigants, including media organisations, who have defended cases taken in defamation. My involvement does not give me any more authority or influence in this debate but there might be some benefit in the House hearing from a practitioner who has seen how that area of the law operates. It is worth pointing out that it is hard for people outside the legal system to understand the extent of defamation claims. Although there are no statistics on this, I would estimate that such claims amount to a very small percentage of all the claims that are issued each year, either in the High Court or the Circuit Court. In fact, I suspect they account for less than 1% of the total. However, simply because they are small in number does not mean this is an area of the law that should not be reformed, but it is important to have perspective as to the incidence of these claims under our legal system.

It is also important that we take into account the conflicting rights that arise in this area. In this legislation, the Oireachtas is trying to balance two conflicting Article 40 rights. On the one hand, we have the Article 40 right that each individual has to his or her good name. On the other hand, we are trying to balance the right people have to freedom of expression. It is always the case that where there are two conflicting rights, there is going to be difficulty in determining which right, on occasion, should supersede the other. That determination is the function of the Legislature, as we have done in other legislation. In the case of the adoption and tracing legislation that is going through the Houses of the Oireachtas, for example, we are also trying to balance two conflicting rights.

It is fair to say that when we listen to the public debate on our defamation laws, more attention probably is given to the right to freedom of expression. I say that not in any way to criticise the media. I perfectly understand and appreciate why they would want the laws changed and they may have a strong argument in that respect. However, as observers, we need to recognise that, obviously, public commentary in the media is not completely objective. There is a desire on the part of media to switch the balance more in favour of freedom of expression. I commend Una Mullally, writing recently in The Irish Times, on acknowledging that fact. Even though she was advocating that there should be greater weight given to the freedom of expression side of the balancing act, she recognised that, as a journalist writing for a newspaper, her preference was, of course, going to rest on that side.

It is important that we also look at how the right to one's good name operates. The right to freedom of expression is very visible and tangible. Colleagues have spoken about our need to be able to learn vital information from the media or in public discourse. That is a very obvious and pertinent point and it is one that needs to be emphasised. The right to one's good name probably is more nebulous. The best example I can give to Members and to any members of the public who are listening is to recall what happened in this House and elsewhere back in 2016 and 2017, when there were significant debates about what was done to a member of An Garda Síochána, namely, Sergeant Maurice McCabe. We all remember the reprehensible, dishonest and false campaign that was waged against him and the statements made about him in the public domain. Many of those statements were not broadcast in the media but there was a whispering campaign about him. The only remedy that man had in respect of those allegations was the Defamation Act. I remember speaking to people who expressed astonishment that there was not some law in place to make it a criminal act to spread false rumours that a person had been involved in reprehensible criminal activity. There was no such law. Sergeant McCabe's only remedy was under the Defamation Act. Obviously, he had a remedy in terms of his rights with his employer if the latter had breached his contract of employment. We need to have it in mind that the right to one's good name, although it is nebulous, is sometimes the only sanctuary people have where they have been subject to a very serious campaign of defamation against them.

We also need to recognise that, fortunately, we have very strong and independent media in Ireland. Deputy Calleary mentioned the excellent work the media have done in exposing wrongdoing in this country. It is important to point out that they were able to do that notwithstanding the existing defamation laws. We should acknowledge that Ireland was recently afforded sixth place in the world for press freedom by Reporters Without Borders. There is a lot of freedom for the press in this country. I know the media want more and I think we should change the Defamation Act to a certain extent, but we need to recognise that the media in Ireland are very strong, very trusted and very reliable. When I look at an article in a newspaper or hear a story broadcast on our media, I am fairly satisfied that the statements made in it are true. We need to admit that part of the reason we recognise and accept the information is true is that we know, because of our defamation laws, that the media would not and could not publish if it was false. At some stage, we must acknowledge that part of the reason we have such a strong and effective media in this country is that they are absolutely stringent in ensuring the stories they publish about people are correct.

As part of a broader discussion about trying to ensure that standards in journalism remain as high as they are now, we need to be careful about saying to the media at large that it does not really matter if they get stories about people wrong and that they will not face any sanction for that. That does not mean I am not in favour of reform. I have looked at the report. It is a very detailed report and there is a lot of very useful information in it.

As to what I assess as being the main issues with defamation law at present, I will say the following. First, most defamation occurs online, not in what would be referred to as our mainstream media, for reasons I have just explained. If somebody is defamed online by an anonymous person, in general the person who is defamed now has to go on a rather tortuous journey to the High Court in order to secure from the court a Norwich Pharmacal order. I welcome the fact that in the report it is proposed that a statutory scheme be put in place to ensure that everyone knows what they have to do if they have been subject to defamation online.

I also welcome the fact that the report has looked at the e-commerce directive. That directive is far too soft on social media companies. They are not viewed as being publishers. They simply say to themselves that they are hosting communities and they allow members of the community to state what they wish to state. It is an Elon Musk-type argument, which is a belief in absolute freedom of expression. I do not believe in absolute freedom of expression and I do not believe anyone in this House does. When it comes to the e-commerce directive, we need to ensure that if a social media company is told that something on its online platform is false and defamatory and if it recognises that, it has to take it down. I can understand why, in the first instance, there could not be a liability imposed on the company for the immediate publication. Once the company is warned, however, it needs to take it down immediately.

I also welcome the proposal in the report that juries should not hear offers to make amends. An offer to make amends involves a defendant who makes a mistake. We need to recognise that it is an occupational hazard in media and journalism that people make mistakes. It happens in every walk of life. If media make mistakes and defame people by mistake, the sensible thing for them to do, which in most cases they do, is to put their hands up and say they got it wrong. That should be an easier path for them. At present, under the law as it is interpreted, although not, I think, as it was intended under the 2009 Act, a plaintiff still has the entitlement to have that offer to make amends heard by a jury. That should be changed.

We hear a lot about the SLAPP proposals that will be introduced. I welcome them. Nobody should use litigation for any purpose other than the stated purpose of the reliefs sought in that litigation. The only reason you should take a defamation action is that you have been defamed and your reputation has been damaged in the eyes of reasonable-thinking people. If somebody takes defamation proceedings for a collateral cause, that needs to be slapped out. I welcome that the public participation part is emphasised.

That brings me to the issue of removing juries from defamation cases. Why are we seeking to remove the public participation of ordinary men and women from determining whether an article or publication has defamed an individual? I think I can understand the reasons the media want to reduce that involvement in that they may believe it will reduce the length of cases, but I ask them to tread cautiously and carefully. If I worked in the media industry, I would much prefer my viewers or readers to adjudicate on my work as opposed to a judge in the Four Courts who probably would not have read the paper before.

It is an interesting report, I welcome the opportunity to speak on it and I look forward to the Bill.

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