Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

There are aspects of the Bill that we can support and other aspects about which we have concerns. If we were to ask the average person on the street whether they see this as something that applies to them, they would say it does not, not because they fear their reputation being defamed but because there is a perception and reality about the cost of taking legal proceedings. It would only be in the most egregious cases that the vast majority of people would even consider taking such action. Taking a defamation case is perceived as being for someone with fairly deep pockets.

Some aspects of the Bill are welcome. For example, attention must be paid to the alternative remedies in place, such as the requirement for equal prominence. If an article appears, the article to remedy what has been stated has to have the same level of prominence. I recall a number of cases that were taken, in particular one against a Sunday newspaper which went on for a few weeks. It would have probably put a fairly decent size publication out of business, not so much due to losing the case but because of the cost of the legal challenge as a result of the length of time the case went on for. It is important that we get a balance.

Judge Bernard Barton has spoken to many of us and I met him earlier this year. What he said was quite interesting and I took notes at the time. We want to put something in legislation that actually works, and is constitutional and fair. The point the judge made was that this Bill was largely taken from the 2013 Act in England. He said some of the changes were not the panacea that people were expecting. In fact, he said they turned out to be the opposite. Juries were not completely abolished under the 2013 Act. The Act promised that cases would be shorter, but the reverse happened. It promised that legal costs would fall, but they have actually increased significantly to about £1 million a day. It was promised that there would be fewer appeals, but there are in fact more. The judge made the point that judge-only rulings are easier to appeal than jury decisions, due to the value of a jury's decision.

I do not know if all of that analysis has been taken into consideration, but if that is the outcome of the 2013 Act in England, why do we think it will be any different in this jurisdiction? I believe we are trying to have a reasonable system to deal with cases where defamation has happened and a reasonable amount of money is involved, but that does not appear to be the remedy. I will continue the point that Deputy Howlin made, namely, that judges do not come from a broad spectrum of society and may well have a different value system.

I have as much confidence in a jury in respect of the amount that would be paid out. The committee did not recommend that juries should be removed, but rather that there would be a recommendation from a jury that could then be taken into account by a judge. I am not sure that the right balance has been struck or the correct analysis has been done to produce the change that it is hoped the Bill will bring about.

We all have concerns about the anti-SLAPP directive. There are also concerns regarding residents' associations and other groups which have a fear about putting their head above the parapet in situations where they have a justifiable and legal entitlement to represent their community in a planning objection, for whatever reason.

Newspapers are, more and more, online rather than in print. Some have dual versions but there is movement towards the online version. The nature of the industry is changing substantially, but that differs from social media. I recall one individual who had to go to enormous lengths to rehabilitate his reputation.

He was misidentified online in an egregious way. The report was about an attack on an individual and he was being fingered for it and had to go to enormous lengths, even to get the social media companies to take down the allegation. He could even show he was out of the country, that he could not have been in the location and he could not get the social media companies to take it down, never mind amend it or put in place some sort of remedy, in the way a newspaper would in an area of equal prominence. There are serious challenges for us that relate to the behaviour of social media companies. That is the area where most people have the greatest fear in respect of defamation. A lot more will have to be done on it, including insisting on timelines for taking down things that cause serious harm.

On the serious harm test, we have a different jurisdiction from England and Wales and our Constitution will shape what can be done, but the Bill does not go as far as I would ideally like it to go. Other things in it are helpful. It may well at some point go further in relation to jurisdiction, but not in this legislation by the looks of it. A number of things are important.

Sometimes when people talk about the awards that have been made, there is a tendency to talk about some of the cases before the 2009 Act. The 2009 Act was helpful. The Supreme Court ruling in the Higgins case has also been helpful in setting out some parameters. It may well be that they are of more value in reducing the amounts in the awards than what we might do by taking juries out of the equation in defamation cases.

Speaking about the principle of legislation, I agree that we should see the entirety of what is proposed so we can speak about it. Not everyone is on the committee, although I know it will come back to the House on Report Stage and there will probably be amendments at that Stage. However, it is a sloppy approach and it is not the way to deal with legislation. It is unfortunate we are seeing that in this case.

See this speech in context