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

I will start by saying that, as a barrister, I have represented many people who have taken defamation claims. I have also represented many media organisations that have defended defamation claims. That does not give me any more authority than anyone else in the House to speak, but I have an insight into how defamation law has developed since the last significant enactment came into effect on 1 January 2010.

I will start by dealing with an issue raised by Deputy Howlin when he stated that ordinary citizens did not gain access to the defamation courts. My experience – not just from my cases, but from seeing other cases – has been that ordinary citizens can and do get access because of the no foal, no fee-based litigation system that seems to be one of the methods of funding litigation in Ireland. I do not believe it is accurate to say that the only people who come before defamation courts are paupers or millionaires.

We have defamation laws because we have to give statutory effect to the constitutional provision in Article 40 whereby the State must defend and protect from unjust attack the good name of every citizen. This is why we have a Defamation Act. Even if that provision were not in the Constitution, this House would collectively agree that we should have some laws to prevent the publication of damaging statements about individuals that are false. Otherwise, we would find ourselves in the situation that exists in America now. It is interesting to note that, in America, such is the craziness of their free speech amendment that defamation law is now being engaged again and there have been some successes, as Deputy Howlin identified.

What makes this matter contentious is that it sometimes conflicts with the other important constitutional right, that being, the right to freedom of expression. The purpose of any defamation litigation and our job as legislators is to try to ensure that we balance both of those rights. In recent years, there has been a shift towards protecting more the right to freedom of expression. There are many reasons for that. It is unquestionably the case that there has been strategic litigation against public participation. Otherwise, we would not have an EU directive to which we are giving effect in this legislation.

We need to recognise that the public may sometimes have a negative view of defamation. I regret to say that part of the reason for this may be the frequency with which some politicians avail of the defamation laws to confront and respond to criticism in the media. I excuse Deputy Daly from this, but it has certainly been the case in the past four or five years that there has been a significant increase in the frequency of Sinn Féin politicians instituting defamation proceedings.

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