James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Deputies for their contributions. In the time available to me, I want to address some of the issues raised.

On the pre-legislative scrutiny and recommendations made, there is an increasing tendency on the Opposition side of the House to state that because the Government does not blindly accept the recommendations of an Oireachtas committee, it somehow has not taken them into consideration or is somehow undemocratic. That is disinformation. An Oireachtas committee’s role is to scrutinise. It is questionable how far it is meant to go beyond that scrutiny. The committees often make recommendations and they are taken into consideration, but it would be deeply undemocratic for a government to blindly accept the recommendations of an Oireachtas committee. It is the Dáil and Seanad that actually make legislation.

One of the recommendations made by the Oireachtas committee after pre-legislative scrutiny was a serious harm test. An implicit criticism is that because we did not accept all the recommendations, we did not consider this. I am surprised that the Deputy opposite supports a serious harm test because it would create a serious barrier to access to justice. The test was adopted in the UK in 2013 and there have been calls from certain stakeholders for it to be introduced here. We decided against it. The damage caused by defamation is primarily damage to a reputation, which can be deeply distressing. The introduction of a serious-harm test has led to very expensive pre-trial cases in the UK, which would run contrary to one of the Bill’s main objectives, to reduce the very high legal costs in defamation cases.

An aspect of the Constitution I do not believe was touched on today is access to justice. A serious harm test would seriously limit access to justice, especially for ordinary people. The stress of trying to prove serious harm so as to establish defamation would really set an imbalance in the other direction.

Most Deputies raised the issue of juries. Many people are attached to retaining juries in defamation cases. It is important for the public to know the juries were abolished in almost all civil cases a long time ago and were only kept in a very small number of areas. With regard to defamation, they were abolished in 2009 in Circuit Court cases. Therefore, there is a very tiny number of areas in civil law in which juries are still held. Our proposal is to get rid of them in the case of defamation.

It was asked why the Bill does not do more to combat online defamation. The Online Safety and Media Regulation Act 2022 focuses on online content that is harmful but not necessarily illegal and does not cover defamation. We are very conscious of the increasing importance of online and ad-based defamation; however, we do have challenges. Since the e-commerce directive of 2000 was introduced, a lot of this area comes under EU law. The competence is with the EU. The e-commerce directive of 2000 set out common law rules that in effect regulated the liability responsibilities, in Ireland and other member states, of online services providers for the content of defamatory material posted by users of their online services. An important development, therefore, was the adoption in 2022 of the Digital Services Act – Regulation (EU) 2022/2065, which replaces the relevant provisions of the e-commerce directive.

The Government has already brought into enactment the digital services directive by way of the Digital Services Act 2024. My Department is working closely with the Department of enterprise to ensure full coherence between the implementation of that and our own Bill.

Deputy Pa Daly raised the issue of retail defamation and a concern around discrimination. The Government is very conscious of the risk of discrimination against certain groups. The advantage of this defence is that it contains a built-in mechanism to protect against prejudice. If a retailer acts with malice or any improper motive, the defence does not apply. The defence, therefore, is designed to encourage the sector to develop better practice and training in this respect.

Deputies Ó Murchú and Howlin raised the issue of social media defamation and asked whether the defence of fair and reasonable publication can address social media defamation by citizen journalists. It is worth recalling that the European Court of Human Rights has considered this in several judgments and has held that a citizen journalist will be protected by the extra freedom of expression accorded to journalists if he or she complies fully with the traditional duties and careful checks that are required of professional journalists.

Deputy Howlin also raised the issue of there being no legal aid in defamation cases. This is one of the issues that fell to be considered in the comprehensive review of civil legal aid. The defamation review specifically recommends that it should be included in that review.

Deputy Richard Boyd Barrett raised the issue of the constitutional right to trial by jury and the threat to democracy of abolishing the remaining areas where juries are available in civil cases. The right to a jury in defamation cases is not constitutional. There is a constitutional right to a jury in criminal cases, not civil cases, and this is certainly the view of the leading defamation textbooks, for example, those of Cox and McCullough and of McMahon and Binchy. With regard to the threat to democracy, we should consider again Circuit Court defamation cases. Juries were abolished in 2009 and there is an option of much lower cost. It is working successfully and there has been very little criticism as a result. Appeals from the Circuit Court to the High Court are relatively rare, so the real threat to democratic access to justice is surely the extremely high legal costs of a High Court defamation case, which is outside the reach of the vast majority of ordinary people.

The argument that abolishing juries will lead to increases in appeals and costs does not reflect the experience when juries were abolished in the Circuit Court; on the contrary. It is suggested that there are very few disproportionate jury awards, not just in respect of the Kinsella case award. However, the defamation review sets out a series of cases where very disproportionate awards were significantly reduced on appeal. Reference was made to the recommended award levels set out in the Higgins judgment by Mr. Justice MacMenamin. We should let them take effect. This underlines the argument for having judges rather than juries determine appropriate awards. Judges are bound to follow a framework set out by the higher courts or explain clearly in a written judgment why they have decided differently. This is not the case for a jury. Some have argued that fewer defamation cases were brought because of juries. We need to distinguish very clearly between cases brought and cases decided. Courts Service statistics, as well as stakeholder reports, suggest an increase in defamation proceedings issued but that they are being settled out of court because of legal uncertainty over what level of award will result. Many stakeholders indicate that insurers are obliging them to settle even if they have a good case of defence because of the level of risk. I am referring to what is often known in the industry as “go-away money”. Somebody might have a very limited chance of succeeding but, because of the risk of extraordinarily high costs, they simply try to buy off the case.

I am very confident about this legislation. It is fairly balanced legislation needed to reform current defamation laws and I certainly recommend it to the House.

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