Pa Daly (Kerry, Sinn Fein) | Oireachtas source

I thank the Minister of State for his briefing. While reform of this legislation is required and is something that we have previously called for, it is important for a balance to be struck. I thank the Library and Research Service for its briefing document, which, as usual, is excellent. I note in that document the comments of a previous Minister for Justice and Equality, Deputy Charles Flanagan, who said that defamation law in Ireland essentially seeks to balance three different rights, which are protected under both our Constitution and the European Convention on Human Rights. They are the right to freedom of expression, protection of good name and reputation, and access to justice. This is an assessment on which I presume we are all agreed, even though it could be argued strongly that the rights of access to justice in many cases, particularly in family law, have not seen great improvements over the years. In fact, it has gone back.

Any defamation legislation needs to be assessed in how it balances those rights, along with the impact it has on the wider health of democratic discourse. Every one of these rights is a two-way street. I always remember when I was working as a solicitor, dealing with a family whose deceased loved one was about to be defamed in a Sunday publication. They contacted the office and there was little that we could do about it, except to appeal to the better nature of the company to say, if she was alive, how extremely libellous and damaging the comments that were going to be and unfortunately were published in the newspaper would be. Unfortunately, that fell on deaf ears. My experience of it has always been framed in the context of when there is an open door, that has unfortunately often been exploited by some media outlets, in that you cannot libel the dead. Without the protection of the tort of defamation, there was no recourse for the family.

In that context, I was taken aback by some interventions from the Tánaiste. One was described by Frank Buttimer and Company solicitors as a rant and a feral attack on many of the pillars of justice of the State, and an attack on the decision of the Director of Public Prosecutions not to prosecute in the Sophie Toscan du Plantier case. He should maybe read some of the recommendations about the gathering of evidence in that case, which was prepared by the Director of Public Prosecutions for the decision that was taken in that case not to prosecute. I note there is a cold case review and it will be interesting to see what is in that.

I also note what the Minister of State said about further changes to be included in the passage of the Bill. The Bill is incomplete pending what the Minister of State has stated the Minister, Deputy McEntee, will bring as amendments regarding the fair and reasonable publication in the public interest, the statutory power for the Circuit Court to issue a Norwich Pharmacal order, and also the power for the courts to award damages for harm suffered from the SLAPP proceedings. We wait to see that. It is interesting to see, in the Minister of State's document, the defence for live broadcasting. We welcome that there will be a new defence for broadcasters against liability for defamatory statements made by a contributor if the broadcaster can show that it took reasonable and prudent precautions. We think that is welcome. It is onerous on a media outlet. Of course, that should not extend to the presenter of the show if engaged in damaging and defamatory commentary. One would expect that he or she would know better.

I note also what the Minister of State has written in section 8. I am not sure it is a significant difference from what is there. As the Minister of State said, the Circuit Court has repeatedly said that it is not defamatory simply to ask persons who walk past the checkout with goods to produce a receipt. The Minister of State says it will be a defence to simply show that any disputed statement consisted of simply asking a person whether he or she has paid, obtained the service, or had in his or her possession goods or receipts.

I am not so sure that there are significant legal and insurance costs for these businesses. That is what is alleged but often in cases that come before the courts, it is not that they are simply asked for receipt; it goes way further than that. Often, it is untrained and inexperienced staff who made a serious error and defamed ordinary shoppers because, for example, of the way they look or they belong to certain groups. It is often perhaps more to do with that. Those are the type of cases we should keep in the forefront of our minds. We should avoid defamation as a rich man's law and not to score points. Not all cases are clear-cut but there is little doubt we must see a rebalancing without compromising the fundamentals of the law and the balancing act within it, which was mentioned.

We had extensive engagement with representatives of the media at the Oireachtas Joint Committee on Tourism, Culture, Arts, Sports and Media and the committee on justice. After the justice committee issued its recommendations, media outlets prepared more extensive lobbying on the Government. It could be argued that we are seeing the results of that today. Section 2 changes the definition of a periodical to cover online publications. Some further work may be required on Committee Stage on this matter but the evolution is important and one the justice committee and Press Council of Ireland supported. The bandwidth of stories made through online publications means informal settlements through the Press Council of Ireland may accelerate. Will the Minister of State provide details of any impact assessment in that regard on Committee Stage?

Part 3 deals with the abolition of juries in defamation trials. That will be more contentious than most. It is disappointing that despite calls by the committee, Opposition parties including Sinn Féin, the ICCL, Mr. Justice Bernard Barton and many others, the Government is proceeding with the abolition of juries in those cases. The overwhelming concern seems to be the size of the awards but this is surely obviated by a judge ruling on the quantum of damages, as well as procedural delays. It is worth recalling, which the Minister of State will be aware of, that we were promised by insurance companies many years ago that if juries were abolished, premiums would be reduced. That was the first of many amendments to the personal injury legislation, almost all with the promise that the cost of premiums would be reduced. Of course, that has not happened. I dealt with two cases over the summer in which people were trying to renew their insurance. Following incidents in which their cars were parked and collided into, because there was an ongoing claim, their premiums were increased even though clearly it was no fault of their own. That was used as yet another excuse by insurance companies to say they would have to pay a much higher premium than they did the year before. I am not convinced that removing juries will make this more efficient. In fact, one could argue the other way.

I saw in the briefing document that the Department said that, "Juries are unused to dealing with large sums of money. They are much more likely than judges to award damages that are unpredictable, excessive or disproportionate". The only evidence seems to be one case which is mentioned. The commentary reads like the Department was convinced by media outlets when they were invited into Leinster House after the report by the justice committee. One could just as easily have mentioned one case such as Gordon vs the Irish Racehorse Trainers Association in which the Court of Appeal unanimously upheld the amount of damages awarded by the jury, rather than using the one case mentioned. There is a slight tone of condescension about juries but they deal with murder cases, for example, all the time. It is difficult to see how, if they are trusted to deal with murder cases, they cannot deal with deciding whether or not a citizen has been defamed. As matters of defamation are about one's good name, it is arguable that a jury of one's peers should be entrusted with weighing the balance of rights and harms. While we appreciate the procedural concerns and the risk of disproportionate awards, we do not feel they are sufficient justification for curtailing the right to due process. We previously opposed this move in the Six Counties and have concerns about it in this jurisdiction also. In fact, it is more difficult to overturn the decision of a jury so it could be argued that maintaining the presence of juries would reduce the number of appeals and make the system more efficient. A Supreme Court decision in the case of Higgins established categories of damages in defamation, so that may also help to make it more efficient.

Measures relating to the body corporate suing for defamation in section 6 strike more or less the right balance where a for-profit body sues, requiring that it proves a serious financial loss, is positive but it also must be clear that this is a necessary but not sufficient condition. SLAPPs are dealt with in later parts of the Bill but the power of corporations matched against media outlets, citizen journalists or ordinary people is no contest. On this point, the defence of retail defamation needs to be approached carefully, as I said. There is of course the odd frivolous or vexatious claim but there is not a significant amount, as is alleged. We need a larger visible Garda presence in city centres, which would alleviate a lot of public order issues and this type of incident. I took a few cases in which people were accused wrongly and quite often it was an untrained staff member who made the defamatory action.

Sections 8 to 10 offer to make amends and require corrections to be made in the same prominence as the original statement giving rise to proceedings. In a lot of instances, this should prove satisfactory and will, I hope, encourage both parties to settle early and avoid costly court proceedings. Where proceedings go ahead, there should be sufficient evidence of the seriousness for either side in settling the matter. Ultimately, an apology, withdrawal and financial recompense are what a court can offer. If there is a way this can be gained in cases where they are merited prior to court sittings, this is to be welcomed.

I already dealt with live broadcasts. We support the alternative dispute resolution mechanism. We look forward to further engagement on many of these issues in the course of Committee Stage. We know the Government is taking more time and has had ample time to consider the draft heads and the report. We look forward to dealing with it. We will support the provision on SLAPPs, which is in line with our overall belief that people have the right to fight for their own good name but also highlight the wrongdoing by large-scale employers and companies that are in a strong position to take cases. The mediation council has still not been established and adversarial circumstances still exist across the justice system, where promised reforms have not taken place. We hope this council will be established as soon as possible.

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