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

One of the issues that was considered by the Department was whether we would include in the legislation a serious harm test as at present applies in England and Wales. It was decided that it would not be introduced or proposed in respect of personal plaintiffs, people who claim that they were defamed. The reason it was not proposed to look for a serious harm test is that the experience in the United Kingdom has been that it does not really achieve much. All it does is it sets in another interlocutory hearing for the purpose of determining whether or not a serious harm test has been met. The important thing from the point of view of the efficiency of the system and, more importantly, from the point of view of individuals who claim that their good name has been damaged is that we decided not to propose a serious harm test for individuals.

However, corporate entities are in a different position. If a company claims it has been defamed, it must, by necessity, mean that the company's reputation has been damaged in the eyes of right-thinking people. It is a reasonable proposal to say that a company cannot claim that its reputation has been damaged unless it can identify financial loss. The whole purpose of a corporate company is to generate profit. If it is the case that it is not proven that there is any financial loss, that is a situation that should be reflected in legislation. The Deputy will no doubt say that there are many corporate entities that are not for profit. Notwithstanding that, if there is damage to the reputation of a corporate entity, it must be reflected in some diminution or some actual financial loss that it has sustained. It does not necessarily have to be a reduction or diminution in its profits, but it has to be a financial loss. That is something that could apply in the situation of a corporate entity that is not for profit.

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