Thomas Pringle (Donegal, Independent) | Oireachtas source

I am glad to make it here in time to contribute to this debate. When a few speakers pulled out, it caused a bit of a flurry.

I thank the Ceann Comhairle for the opportunity to speak. It is interesting that the Government has chosen now to review this Act, which was due to be reviewed in 2014 under the Act itself. It is also interesting that it was in the 2020 programme for Government to review the Act despite it already being in the legislation that it should be reviewed anyway. Has the Government completely neglected its responsibility to uphold the law? Must all legislation be written into programmes for Government in order for it to be implemented? Surely this completely undermines all legislation.

What is the point in introducing legislation if it has not been implemented? This further proves my point that we are great at introducing legislation in this country but terrible at implementing it. If one was a spaceman looking down at this country, as I have stated previously, one would look at the legislation and say that this is a great place but when the spaceman actually lands here and sees how it is implemented, he or she would see that it is totally different. This is an ongoing issue that needs to be addressed. We cannot continue churning out legislation with no intention to uphold and implement it. It wholly undermines our role as legislators and the laws of this country.

In terms of where this review falls short, we need to review the Defamation Act 2009 as a threat to the right to freedom of expression. The freedom to exchange ideas, views and experiences freely without fear of disproportionate legal responses is fundamental to a fully functioning democracy.

As it currently stands, the Civil Legal Aid Act 1995 assigns defamation as a designated matter that is excluded from legal aid. This is concerning as it basically means that only those who can financially afford to risk legal costs can take action under the Defamation Act. I note the review talks about dealing with this but it is leaving it to other legislation - the civil legal aid review - to be dealt with which will be a long way down the road. This prices many people out of taking legal action and is incredibly unfair. A person is more likely to withdraw a statement than defend it without proper legal representation. This would have a significant effect on free speech. Everyone has a constitutional right to equality before the law and this exclusion threatens this constitutional right. Everyone should be allowed legal representation in order to defend properly what they say.

On top of this, the exclusion of defamatory legal actions from the civil legal scheme is also contrary to Article 6 of the European Convention on Human Rights, ECHR, which provides that everyone is entitled to a fair and public hearing in the determination of his civil rights and obligations. Unfortunately, in Ireland, that means that everyone is equal under the law provided he or she can afford to pay for it. That is the reality of the situation here because the law is reserved for the people who can afford it. We should be addressing that and this legislation should be used to address that as well. An opportunity has been lost here that it has not included a right for people to get legal aid in this legislation rather than waiting for other legislation to come along.

The Irish Council for Civil Liberties made a great submission to the Department of Justice on the review of the Defamation Act. One of the many recommendations it made is that the burden of proof on the defendant to prove an alleged defamatory statement is true should be shifted to the plaintiff to prove the statement is false. This is the norm in other civil cases and should be the case here. The European Court of Human Rights has found that the presumption of falsity can infringe on the right to freedom of expression. Another disincentive to defend defamatory actions is the uncertainty and unpredictability about the amount of damages that can be awarded. Decisions should be restricted to a decision on whether a defamation has taken place rather than what precise damages should be awarded. It goes without saying that the judge should decide the amount. That is included in the Bill.

I am glad this review has taken place. It is undoubtedly well overdue; in fact, eight years overdue. I hope these legislative reviews are taken more seriously in future. I also hope the concerns I have raised today are taken into consideration. People must have a right to free speech and have a right to call out hate speech, for example, without the risk of being threatened with defamatory actions as well.

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