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

The Minister of State can respond, but I suspect that that is part of the reason we have the provisions that are included in section 17.

Politicians are perfectly entitled to institute defamation proceedings. In fact, some of the more significant defamation judgments have been as a result of politicians’ proceedings, whether instituted by the former Minister, Proinsias De Rossa, or the former Taoiseach, Albert Reynolds. However, we need to recognise that defamation proceedings cannot be issued simply to confront or contest media criticism. If that is done with frequency, it will look like a strategy, and that is part of the reason for section 17.

I wish to consider the abolition of juries. I share many of the concerns being expressed by other Deputies. The decision to abolish juries in the High Court would be short-sighted.

The reason for it is that there is a belief among media defendants, in particular, who are subject to defamation claims that if they get rid of juries, awards will go down and defamation cases will not go on for as long. My assessment is that is not correct.

Deputy Howlin mentioned that there is very little case law when it comes to deformation. That is correct. The reason for that is that most cases that are heard in the High Court by way of defamation hearings are heard by a jury which gives a judgment in response to an issue paper. The jury gives an answer stating whether a plaintiff has succeeded or lost in a claim of being defamed and assesses damages. That is why we do not have a vast amount of jurisprudence.

If we abolished juries, I can guarantee the House that we will develop a whole body of jurisprudence that will result in cases being repeatedly appealed to the Court of Appeal and probably the Supreme Court. It is seldom the case that people appeal awards or decisions of juries because they know the appellate courts will be very respectful of any decision reached by a jury. Obviously, if a jury gives an excessive award, as happened a long time ago, that will be dealt with by the appeal court, but, as has been indicated by others in this House, the Higgins case clearly set out guidelines for what awards should be in terms of categorising different types of defamation.

Given the awards juries are making, I would have thought they are a lot more in tune with the value of money than judges on their own having to decide that issue. The Minister should consider the fact that in one section he is introducing legislation to deal with strategic litigation that goes against public participation, while in another we are trying to remove public participation in this process by taking out juries. That is something that should be looked at. We could still have juries for malicious falsehood, which is also dealt with under the Defamation Act. We would still have juries in respect of assault and trespass to the person. I am concerned that the reason to remove juries for the purpose of defamation actions has not been thought out.

Finally, there is the issue of online defamation. The vast amount of defamation that occurs today occurs online. It may be difficult to try to specify in the Bill how that is to be dealt with, but I ask the Minister to give consideration to including a statutory provision that would enable people to apply to a court to seek what are referred to as Norwich Pharmacal orders. That is where somebody believes they have been defamed online on Twitter or Meta. They have to go to the High Court to get in order directing Twitter or Meta to hand out the name of the account holder who published the information. We should have a procedure in place, which could be availed of in the Circuit Court, whereby people could bring forward an application based on rules established under the amending Act that would entitle citizens to take such action. That is a real challenge in defamation cases and something we should confront.

See this speech in context