Wednesday, 11 May 2022
Defamation Act 2009 Review: Statements
I want to ensure that our legislation addresses the challenges posed by an increasingly complex media landscape. I strongly believe the rule of law and democracy cannot truly flourish without robust protection for the right of freedom of expression though, of course, this must always be carefully balanced, as it is under our Constitution and the European Convention on Human Rights, with safeguarding the individual right to good name and reputation. The question is about striking the right balance between those rights.
On 1 March, I published the report on the review of the Defamation Act 2009. I hope that Deputies have had an opportunity to view the report which is available on my Department's website along with a complementary summary document. I look forward to hearing from them during this debate about their views on the report and its recommendations.
Our defamation legislation must protect the right to freedom of expression while also safeguarding our citizens' right to a good name and reputation. We need to be mindful of striking a balance between those rights which are both protected by our Constitution and the European Convention on Human Rights. It is essential we respect the crucial role played in our democracy by a free and independent media and other civil society actors in providing information and debate on public matters of interest.
Enshrining the right of access to justice for people whose rights have been infringed is also a core principle we must uphold. Online defamation, in particular, is a complex and evolving area of law that presents particular challenges through its overlap with EU law and with privacy and data protection law. I am committed to reviewing and reforming defamation law with a view to upholding these rights and achieving that balance in line with our programme for Government commitments.
This report considers in detail all the issues raised by submissions which were made to my Department during our consultation process. It examines relevant reforms in other common law countries and at EU level and sets out a range of recommendations for change. The review contains proposals to provide clearer protection for responsible, public interest journalism. It also recommends a number of mechanisms that support more consistent, proportionate and predictable redress in defamation cases.
One of the report's major recommendations is to end the use of juries in defamation cases. In their submissions to my review, many individuals and organisations told us that using juries leads to excessive rewards in defamation cases, high legal costs, unpredictable outcomes and extremely long delays. It is worrying that these factors are seen as having a very chilling effect on public interest reporting and on media freedom of expression.
Traditional print media is operating in an increasingly difficult environment where high awards and legal costs threaten the very economic viability of some national newspapers. Both the European Court of Human Rights and our Supreme Court have underlined that awards in defamation cases must be proportionate to avoid infringing the right to freedom of expression.
There have been a number of examples in recent years where very large jury awards for defamation were reduced substantially by the higher courts on appeal. In one such case a jury award of €10 million was reduced on appeal to €250,000. However the need to appeal an excessive award can lead to significant extra legal costs and delays. The fact that juries cannot give reasons for the decisions in defamation cases was also viewed as a cause for concern by many who engaged with the consultation, as it can lead to legal uncertainty and to appeals brought simply to clarify the point of law in an issue.
The review proposes the provision of quicker, lower cost and more accessible and effective redress mechanisms, including in cases of online defamation. It makes proposals to support increased use of alternative dispute resolution and of prompt correction and apology where mistakes are made. The report examines a general view expressed by some submissions that it is too easy for plaintiffs to bring defamation proceedings and that they should have to satisfy extra tests and conditions before they have access to the courts.
Given the importance of safeguarding access to justice, the report recommends against introducing any such general measures. However the report also considers where there is scope for abuse of defamation law, which includes the issuing of vexatious proceedings, and it proposes measures to guard against this particular risk.
Finally, the report makes proposals to clarify or simplify the requirements of some defences to defamation cases.
These include defences important for public debate and investigative journalism and they respond to submissions from the print media and the National Union of Journalists, NUJ.
On the other hand, the report also acknowledges the difficulties for individual plaintiffs in accessing justice. Easier access to justice for individuals whose reputations are unfairly attacked is a key recommendation of this review, which contains several proposals to ensure plaintiffs have quicker, more effective and lower-cost access to redress. One example concerns changes that would make it easier and less expensive to seek a court order directing online service providers to disclose the identity of an anonymous poster of defamatory material. The renowned journalist Walter Cronkite once said that "Freedom of the press is not just important to democracy, it is democracy".
Our defamation law must safeguard against any attempts to weaken and deter public interest discussion and, in particular, investigative journalism. That is why I am pleased there is a specific recommendation in the report for the introduction of a mechanism against strategic lawsuits against public participation, SLAPP, into Irish law. This is to prevent wealthy and powerful entities from undertaking strategic and abusive use of vexatious litigation. Věra Jourová, the European Commission Vice President for Values and Transparency, launched a package of EU anti-SLAPP measures just last month. In her remarks at the launch, she noted that Ireland was among a small number of EU member states already exploring the possibility of introducing anti-SLAPP protection in our national laws. Like the review my Department has done, the Commission's work seeks to strengthen protection for freedom of expression, taking account of the vital role played in our democracy by free and independent media, and other civil society actors, in providing information and debate on matters of public interest, while of course respecting other relevant fundamental rights. The proposal for a directive will now be subject to detailed consideration by the European Council and the European Parliament and we look forward to contributing to that discussion.
The anti-SLAPP recommendation in my Department's review would essentially allow a person to apply to a court for a summary dismissal of defamation proceedings that he or she believes to be an instance of SLAPP. It goes beyond the scope of the Commission's proposed directive, which is limited to civil cases with cross-border implications. The review is based on a considerable amount of consultation and analysis, including a public consultation, and a stakeholder symposium that brought together representatives from media, academia, the legal profession, social media companies, NGOs and relevant State bodies. Our Department also undertook analysis of the relevant judgments of the Irish superior courts and the European Court of Human Rights, ECHR. We scrutinised relevant EU law, including the proposed EU digital services Act, which includes significantly enhanced protection, enforcement and redress at EU and national levels against online content that is unlawful under national or EU law. We also carried out a comparative review of defamation laws and reforms in other common law jurisdictions.
This report is the culmination of extensive work by my Department and I am proud of the results we have produced. Defamation is an extremely complex area of law, but it is also very important. That is why it is essential for us to take the time and effort to get this report right. I thank everyone who engaged with my Department during the review process. I thank them for their thoughtful and constructive contributions, which have helped to shape this report. Since its publication in March, it has been encouraging to see the broadly positive reaction to it, including from the NUJ and other media representatives. Overall, I believe that with the recommendations set out in this review, we have struck the right balance. I am committed to enshrining defamation in law as soon as possible.
My Justice Plan 2022 commits to publishing the general scheme of the defamation (amendment) Bill in quarter four of this year. My officials will consult in detail with the Office of the Attorney General during the preparation of this general scheme. I look forward to working again with all the relevant stakeholders, including members of the Oireachtas, as part of that legislative process. Even more than that, I look forward to enshrining in law principles that protect and enhance some of the most fundamental rights underpinning a truly democratic society.
In the context of my background in and thoughts regarding defamation law, I remember working in an office in Dublin some 25 years ago. One Saturday afternoon, we received word that members of a family were concerned that a Sunday newspaper, when a story was being written about somebody else, was going to, as those family members said, defame a relation. The newspaper was going to state that another member of the family was a drug addict and that she had worked in prostitution. The family members said that was not true. The woman in question had passed away the year before. We were not a legal practice that specialised in libel, but we contacted the newspaper in question. As the lady concerned was dead, I believed the usual restraints and the care and caution that would usually have been taken were dismissed. The dead cannot be defamed and a deceased person cannot sue, and that was the attitude of the newspapers. Without some protections being in place therefore, powerful institutions, newspapers or online creators would abuse their positions.
I welcome this review. I mention specifically the changes that would make it easier and less expensive to seek a court order directing online service providers to disclose anonymous posters of defamatory material. I say that because many people defamed online, be they contributors to Facebook or Twitter, are defamed by people they do not know. Putting pressure on the social media companies is important in this regard. There is much in the review I welcome. As the Minister said, the legislation must protect the right to freedom of expression, while also safeguarding the right of citizens to a good name and reputation. This is about striking the right balance between these two aspects, which is going to be important and also difficult. Enshrining the right of access to justice, as the Minister said, is a core principle and an important one.
Since that time 25 years ago, some cases in this context have been heard by the European Court of Human Rights. There was the Putistin v. Ukraine case, where it was established that the right of reputation can follow down from a deceased person to a member of the family. Although there have been slight changes, it is important to keep an eye on this. Therefore, the balance between the right to maintain a good name and freedom of speech can be difficult to find, but we must strike it fairly. Everybody is entitled to their good name. Many times in recent years I have heard from schoolteachers who have told me that damaging content, whether videos or comments, have appeared online about pupils of theirs. Those teachers had no success in dealing with the social media companies, which were difficult to contact and slow to remove any content which had been posted. With the massive profits these companies make and the tax breaks they receive must come responsibility. I spoke before about Ireland not being a haven for bad behaviour by these large companies, be that in the context of tax, data protection or defamation.
Similarly, many people who have been slighted, abused, offended by false, misleading comments or blatant lies feel that the expense of taking on a media outlet has put them off doing so. We must introduce legislation which allows access to justice without, as the Minister said, unnecessarily hampering freedom of speech. We must also call out certain attitudes towards freedom of speech and defamation that exist. There is still the legacy of section 31, which meant that people in my party were not allowed to speak on behalf of a union. That attitude is still prevalent sometimes, especially among some older members of the media. It was a millstone around the neck of free speech. Sometimes the NUJ was not good at attacking that limitation on free speech. Undoubtedly, most publishers of content, be they newspapers or social media platforms, are powerful organisations with significant resources. They are able to fact check stories and, like the insurance company that settles a case against the wishes of a policyholder, if media outlets take a business decision not to publish a story they feel they can stand over, that is their prerogative. It should not, however, hinder the rights of ordinary citizens to take a case.
I note the Minister's recommendation is to end the use of juries in defamation cases. We must, though, bear in mind that the same arguments about extra legal costs and delays were mentioned 35 years ago when juries were abolished in personal injury cases. The insurance companies lobby said that would lead to a reduction in the cost of car insurance, but we all know what happened since. I also welcome the proposals to support an increased use of alternative dispute resolution and prompt correction and apology where mistakes are made. It is already the case, however, where a case is taken for defamation or libel, that an apology given at an early stage will reduce the amount of compensation that can be given. There is a general view in respect of having to satisfy extra tests and conditions, and the Minister said that "Given the importance of safeguarding access to justice, the report recommends against introducing any such general measures". I agree with the Minister on this aspect and I welcome her decision in this regard.
These issues are of course not confined solely to the law, and reforms to the law will not affect media diversity and media ownership, as well as the matter of social media platforms and their policies. The Future of Media Commission and the Online Safety and Media Regulation Bill will be instructive in this regard and represent opportunities to address these matters. Press freedoms and media diversity should also be protected by these measures.
The defamation review gets quite a number of things correct, as I have said. There are a number of recommended measures that will speed up the hearing of claims, including the power, as the Minister mentioned, to dismiss a claim if it has not been progressed in a two-year window. Another improvement is the introduction of the proactive case management system, because the courts can become clogged with claims and counterclaims, distracting the courts from other some other business. The anti-SLAPP provision is also important, because the court should be in a position to dismiss claims that are vexatious and merely looking to silence a critic of someone involved in big business. It should work hand in hand with the recommendations around legal aid, although the review does not establish a clear view on that matter. However, that can be discussed at a later stage.
Many claims against individual defendants are never intended to end up in court. People want a quick resolution. Some people do not want the money, so long as an apology can be received and the content is taken down. Many people who take cases ask for a donation to be made to charity. They are not in it for the money, but they want an assurance that a person will not do it again. That is fair and should apply from the people at the top of big business to an ordinary person. There should not be two tiers. Some journalists have called that some people should not be taking claims. However, I disagree with that completely. More detail about all of that needs to worked out, especially in relation to eligibility for legal aid. However, it represents positive steps. Mediation will also be an improvement, although there are some circumstances in which it will be inappropriate. Mediation, in effect, usually takes place, in any event, between the lawyers.
On the move towards judge-only trials, as I said, it might be a negative move. A serious harm test may prove too high a barrier for many. The Government’s thinking on the serious harm test seems to have been shaped by some lobby groups that are concerned by issues such as people who are accused of shoplifting suing for defamation. However, this is an area to be looked at for people who are falsely accused in the shop, for example. They need to have some access to justice. Many of those types of cases came back to security guards who did not receive adequate training and falsely accused some people. I have seen many such cases over the years.
We need to be careful about civil law being hollowed out to suit the interests of business and its lobby groups. The resources of trade unions or consumer groups and of the Irish Council for Civil Liberties, ICCL, which does good work, to engage in those areas are stretched across a number of areas. Many of these groups can lead the State up a certain direction, as we have seen in the area of insurance reform. The Government needs to reflect on striking the balance between free speech and the right to a good name.
I note what the Minister said about her justice plan for 2022 and a general scheme of defamation in quarter 4 of this year. I look forward to seeing that and working with her on it. I also look forward to seeing what the Office of the Attorney General returns with.
I would like to finish on a press freedom matter. When we speak about press freedom around the world, I wish to condemn in the strongest terms the shooting dead of Shireen Abu Akleh and the injury to her colleague, who is in a stable condition. Shireen Abu Akleh was shot while reporting for Al Jazeera on an Israeli Defence Force raid on Jenin refugee camp in the West Bank, as I am sure the Minister is aware. According to some media outlets, there was no gunfire exchange and she was shot by Israeli snipers while wearing her press vest. Will the Minister and her Government to work through the institutions to ensure this behaviour ceases and moves are made towards peace and justice in the Middle East? Will she support our call for a public investigation or public inquiry through the International Criminal Court, ICC?
I welcome the time to contribute to this important debate. As recognised in the report, the Constitution provides a number of rights that offer protection against defamation but also against a complaint of having made of defamation, including the right to freedom of expression, the right to protection of a good name and reputation and the right of access to the courts.
I was disappointed to read in the report that some stakeholders considered the law affords too much weight to the protection of reputation at the expense of freedom of expression, because the core of this issue should not be a reputation versus freedom of expression position. It should be that what is free of influence is being put out into the public domain and is factually correct. When a statement or media coverage is factually correct, it is essential that the misuse of defamation laws to censor others and to prevent journalists from reporting on issues or stories that are in the public interest is wrong. That is not a right that anybody has, nor should it ever be.
While reform of this legislation is required and is something we have previously called for, it is important for that balance to be struck in the legislation but also in fair access to procedures to right a wrong, including the courts. Defamation cases are too often seen by the public as being restricted to people with financial means and not something they themselves could afford. For that reason, the inclusion of defamation in the Civil Legal Aid Act to remove the financial barrier of taking a defamation case for ordinary, working people is very important.
On the recommendation to make mediation an obligation, I ask the Minister to consider and recognise the situations where that would simply not be appropriate, for example, where there is a background of coercive control or domestic abuse between parties. It should go without saying that solicitors inform clients of alternative dispute resolution pathways open to them. It is unrealistic to expect every single person to have full knowledge of all procedures and all options open to them without receiving professional advice. This recommendation, coupled with the inclusion of the Civil Legal Aid Act, would work very much towards removing additional barriers.
I am very uncomfortable and do not agree with defamation cases being decided by a judge or with the limiting of juries’ roles in deciding whether a statement is defamatory, with the judge then deciding the level of damages. There is a level of double standards in that which I find very uncomfortable. In one aspect we are saying we will trust the jury's ability and determination but outright reject it in another. The Minister mentioned the award of €10 million being reduced to €250,000 on appeal. Yes, there is a financial cost to that, but the very crux and core of that was the fact that somebody was defamed, and that should not be lost. Also, I do not agree with juries being forced to justify their decision, which is, after all, based on the information presented to them.
Ultimately, people have a right to their good name and a right to be able access procedures to right wrongs in regard to that. We will support reforms that remove barriers for ordinary people to defend this right on balance with the responsibility of those who put information into the public domain for it to be correct, and doing that in a manner that also ensures defamation laws are not used to censor or prevent journalists from reporting stories in the public interest.
Perhaps the Minister would provide an update on the review of civil legal aid scheme contained in the justice plan for 2021.
I would like to come back to a statement the Minister made in her opening remarks around prompt correction and apology where mistakes are made. We have all seen the situation, particularly in print media, where there is a statement put out that is categorically incorrect and found to be incorrect. However, the apology that comes after is in no way, shape or form given the same level of coverage in that print media as the original allegation. That may seem like quite a small issue, but if a factually incorrect statement about you is printed in a newspaper, the very least you would expect to have faith in that is that the apology would receive the same level of prominence as the allegation.
Forgive me for rushing in. Wednesdays seem to be one of those days. I was just at the launch of our committee report. I am switching my brain to something else. The issue of defamation is a very important subject. Defamation laws are always an extremely difficult policy issue to deal with in respect of balance when it comes to the right of free speech and fair comment, which must be available, especially to the press.
It is an extremely important bedrock of any democracy to have an uninhibited free press. Balancing those sets of fundamental rights against the right of persons to their good name and privacy is sometimes very difficult to achieve. I acknowledge that because it has been debated many times in these Houses.
The last attempt made at striking a balance was the 2009 Act. That Act set out nine defences against a legal action for defamation, some of which are obvious. Truth is a defence. So, too, is absolute privilege, which allows those of us in this House to speak without let or hindrance. There is also the defence of qualified privilege. Honest opinion is a shield if a statement is proven to be honestly held and believed. Fair and reasonable publication on a matter of public interest is a defence if it can be proven the statement was made in good faith on a public interest matter for the benefit of the public and published in a fair and reasonable way. I will not go through all the defences because I do not have time.
When the 2009 legislation was enacted, it seemed to me to contain a reasonable checklist of defences with which somebody could shield himself or herself in court from an act of defamation. To deal with the relevant issues, we set up several regulatory bodies, such as the Press Council of Ireland, the Office of the Press Ombudsman and the Broadcasting Authority of Ireland, all of which were given specific responsibilities to ensure the freedom of the press while accounting for what is the right of citizens in any functioning democracy to their good name.
By and large internationally, defamation laws weigh against free speech. By and large, there is a chilling factor of action against public comment. Over generations, this has been at the root of allowing nefarious activities to continue, because people could not gather sufficient evidence to shield themselves against an action for defamation. In public policy terms, that has ill served many democracies. Therefore, I strongly welcome the review under way and, more important, what might flow from it.
Unfortunately, because I was running between Oireachtas duties, I did not hear the Minister’s comments, but I will read them. I did not get from the review a sense of clarity of action. I will touch upon that in the couple of minutes I have. The outworking of the 2009 Act has raised specific concerns. When I entered the Chamber, some Members referred to the sizes of awards, but in many instances their concern has been addressed by the action of the Court of Appeal. It has very significantly reduced awards. Most of us have not sat in on or heard fully the cases that have been determined, or noted the awards juries have made, but the Court of Appeal has the right to re-evaluate those. It has very effectively done that.
We must now be cognisant that the nature of media is changing with social media, including Twitter, Facebook, Telegram, Instagram, TikTok and so many others I probably do not know about. We need to change our perspective on what constitutes defamation in the context of platforms that are internationalised but that have an impact in our own jurisdiction. I worked with the Minister on enacting the harassment, harmful communications and related offences legislation, the so-called “Coco’s law”, which was a milestone in changing and protecting people against serious harm or what I would call online assault, but defamation is obviously a different type of assault on the good name of somebody.
I have a minute left in which to deal with the outcome of the review and the recommendations made therein. I cannot do it any justice in the time. Regarding juries and damages and the specific recommendations on taking defamation and court proceedings, there are a number of subsets to all the defences promoting alternatives and special measures regarding online and non-online defamation.
I will end as I began. This is an extremely complicated issue to get right. At stake is the potential to destroy somebody’s good name, which can never be retrieved in some instances, but also to protect wrongdoing if there is no obvious protection for free speech. I look forward to hearing, and maybe to having more time than six and half minutes in which to tease out, the views of the Minister when the legislation is produced and presented.
I welcome the review of and report on the Defamation Act 2009. The review was a legislative priority of the Government when it took office in 2020. It is important that the Government and State strike the balance, referred to by other speakers, between our competing sets of rights as individuals protected by our Constitution and the European Convention on Human Rights.
Following the review, the Cabinet has to work on a new set of defamation laws for Ireland. There are issues to be dealt with in this regard. Among the key objectives are putting an end to juries in defamation cases and providing easier access to justice for individuals whose reputation has been unfairly attacked. One of the measures I am most interested in is the one that will make it easier to obtain a court order to get beyond the anonymity of somebody who is abusing or harassing somebody online.
Just a short while ago, I got an alert on my phone from The Irish Timesindicating Deputy Carroll MacNeill has endured her share of harassment. Just a few weeks ago, following a speech I made here in the Dáil, an individual went online, a gunshot was fired and threats were made. We are in the realm of that repeatedly in the body politic. There are many ways in which someone can express frustration with how we politically represent our people or constituencies. If individuals want to be blunt, they may by all means be so, but there is a reasonable threshold. Sometimes that threshold is exceeded. When that happens, it is over to An Garda Síochána. Some people, like Satirical Soldier, might live in a pseudo-world in which they sit behind a computer, snack away on junk food and type hate messages and whatever they want to say, but I live in the real world, as do the Minister and others in this Chamber. We have An Garda Síochána and various mechanisms but it is important for the law to get beyond the veil of anonymity behind which so many have hidden for far too long.
I am aware of a local media outlet that had a very important and fair story to tell that I knew about and into which I had an input. However, on the night of publication a very large industrial heavyweight sent in all sorts of legally threatening letters to prevent the article from being printed. I felt that went way beyond the bounds of what was reasonable. In preparing legislation, we need to give our journalists, some of whom are here today behind the scenes, powers to tell the important stories fairly, clearly and in the public interest.
In 2011, a farcical situation unfolded in Britain when a very prominent Premier League footballer who had had an extramarital affair took out a superinjunction to protect his name and identity. Over a four- or five-week period, various tabloids published photographs of him that had blacked out his eyes and the strip of his football team. The whole world knew who the footballer was. It just became farcical. At the time, I was at a talk at which a solicitor in the room was asked whether there was such a thing as a superinjunction in Ireland. We certainly have injunctions, and a superinjunction is theoretically possible. At times, larger companies and those which have the financial wherewithal to protect their names seem to have more powers of protection than the ordinary citizen. The law needs to ensure equity in this regard.
I was defamed a few years ago, but I remember being talked down from taking legal action by my solicitor because by the time I would have gone through the courts to clear my name and gone through the process, the person at the other end might not have paid out. That happens far too often when people go to a local solicitor with a claim of defamation.
We need to get the balance right to ensure there is freedom for reporters to accurately represent what is happening in the country and to tell the story they need to tell. Protection needs to be built in, particularly insofar as the online world is concerned. There can be no more anonymity. Our hate crime legislation should deal with some elements of that. It is important that it does not become a case of someone having the money and someone else not having it. There has been far too much of that in Irish law and, indeed, in international law in recent years. We need to get all of those balances right as the Government goes about legislating. I thank the Minister.
The Defamation Act 2009 defines defamation and refers to a statement being defamatory where the statement is published, the statement is false and the statement explicitly implies to or refers to a specific person. The report into the review of the Defamation Act 2009 runs to 313 pages. While reform of the legislation is required and is something we have called for previously, it is important for a balance to be struck.
Defamation cases are also seen by some members of the public as a remedy that is only open to well-heeled individuals and not as something they could afford. Any reform must remove financial barriers for ordinary people to defend their good name while also maintaining the ability of the press to report on stories that are in the public interest. Sinn Féin is opposed to the recommendation that the use of juries in defamation trials be abolished. Indeed, we have also opposed this move in the North.
Regarding recommendation 2, further clarification is needed on the potential changes which the Government may seek to make regarding serious harm. We strongly support the removal of the exclusion of defamation from the Civil Legal Aid Act 1995. We must remove the financial barrier of taking a defamation case. We are also in favour of the introduction of the so-called anti-SLAPP mechanism, which will ensure ordinary people, including workers and customers, are protected from being silenced by big companies that initiate defamation cases as a form of censorship. In this case, SLAPP stands for a strategic lawsuit against public participation. There must be a balance that facilitates ordinary people who have the right to fight for their own good name and highlight wrongdoing by employers and companies.
The recommendation to make mediation an obligation may not be appropriate in certain circumstances, and this must be considered. This would include mediation in a defamation case between a couple where there is a background of domestic or coercive control. Requiring a survivor of abuse to sit in mediation with an abuser is wholly inappropriate.
We support the recommended requirements for solicitors to inform clients regarding alternative dispute resolution. One of the barriers facing people in defending their good name is a lack of knowledge. This recommendation, along with the inclusion of defamation in the Civil Legal Aid Act, will help to remove barriers.
The points under recommendation 5 seem to be broadly in line with the spirit of our recent Responsibility of Social Media Platforms (Defamation Amendment) Bill 2022, which was introduced seven weeks ago by my colleagues, na Teachtaí Kenny, Munster and Tully. This will allow an application for a Norwich Pharmacal order to be made to the Circuit Court. At present, only the High Court can make these orders which compel a third party service provider to disclose the identity of an anonymous poster of defamatory material.
In conclusion, people have the right to their good name and Sinn Féin will favour reforms that remove barriers for ordinary people to defend this right. However, we must keep in mind that people do not have a right to use defamation law to censor others or prevent journalists from reporting issues in the public interest. Anyone who has read the book Champagne Footballby Mark Tighe and Paul Rowan, which tells the inside story of John Delaney and the betrayal of Irish football, will know that laws can be abused and this Bill must take this into account.
Any defamation law has to carefully balance freedom of expression and the protection of journalism as well as the constitutional right to a good name. To say our current defamation laws have gotten that balance wrong is a gross understatement. When we have people with very deep pockets potentially putting a title out of business by virtue of a successful action in the courts, it goes beyond the question of protecting a person's good name. The cost of a single case with high payouts and legal costs could bankrupt smart media outlets and even larger media companies can only withstand so many.
The financial and legal vulnerabilities of the press are well known and are exploited in order to suppress stories. The former FAI chief executive John Delaney once told his board that he was pressing on with a weak defamation case against TheJournal.ie "so they don't write anything about us". The recommendations contained in this report would go a long way towards the reform needed in defamation law. The removal of the role of juries, in particular, would drastically reduce the costs associated with these cases.
The report did not recommend a book of quantum for damages, which would have provided additional protection against massive damages awards. The explanation given was that the reputational damage is mainly intangible and hard to put a number on. I would like to see this teased out a bit further during pre-legislative scrutiny. It strikes me as strange that when issues with high personal injury claims were highlighted as having an impact on the insurance industry, a book of quantum was put together. The courts managed to put a value on the loss of a limb, but putting a price on degrees of reputational damage is something beyond us. I am not a legal professional and by no means am I suggesting that this would be simple, but I do not think it is impossible.
Related to this is the question of whether there should be a test of reputational damage before deciding whether a defamation case is taken, as is the case in the UK. I do not understand why this review may have erred on the side of caution here because it comes down to whether defamation, in and of itself, is worthy of a trial and damages, regardless of whether there was a material impact on someone's life.
It is undeniable that there have been defamation cases where people have claimed their professional reputation was in tatters and were afforded high damages as a result without ever really having to prove it. The contradiction comes in where there is a recommendation in the report to introduce a test of serious harm for transient defamation claims. These claims make up the majority of defamation cases. They are often related to providing or refusing retail services and are taken by ordinary citizens, not the rich and influential people we typically associate with defamation cases. Are we saying we can test and quantify reputational damage or harm caused by defamation to ordinary working-class citizens, but in the case of someone with a high public profile and a lot of money it is impossible to do so? If we are trying to move away from defamation law being a law for the rich, we need to ensure we are treating everyone equally.
It is very welcome to see a recommendation for the introduction of an anti-SLAPP defence, which would introduce the right to seek dismissal for groundless suits that seek to suppress journalists. These defences were proposed by the European Commission and were dubbed Daphne's law after the Maltese anti-corruption journalist Daphne Caruana Galizia, who was assassinated by a car bomb on 16 October 2017. At the time of her death she was facing more than 40 lawsuits. She described the emotional effect these cases had on her as "Churning, churning nerves all the time". She stated that her biggest concern was that "because people see what happened to me, they don't want to do it. It's scared others off".
We have always known the vulnerabilities inherent in our defamation laws, but there has, until very recently, been absolute reluctance by successive Governments to act. In fact, this review, which was provided for in the Defamation Act 2009, was supposed to take place seven years ago. The blunt truth, which I think we all need to acknowledge, is that it was not changed because the current laws benefit politicians.
This is not a party specific issue; Deputies and Senators across the Houses have taken defamation cases against media outlets for decades. Under the reforms recommended in this report, many would have been thrown out immediately. We are in somewhat of a unique position as legislators that we write the laws that shape how the media can operate, a media that holds us and everyone else in the public interest accountable. It is our responsibility to ensure that the law allows them the freedom to do so and allows investigative journalists to do their work to the fullest extent possible and the media to expose corruption, backroom deals and lies. This House has abdicated that responsibility for a long time. It is very welcome to see reform is on the way and it is essential that legislation is enacted as soon as possible.
I welcome the publication of the report. I agree with Deputy Howlin. I would like to see the initiation plan as soon as possible. This issue has dragged on for some time. I do not agree with the interpretation of Deputy Cairns as regards why it dragged on, but it is highly complex. The report that has been published deals with the complexity in detail, however, and I commend all those involved in it. We need to move quickly towards legislation, however, and resolving the various anomalies and challenges that were in the system.
There is an irony in this regard in the context of a country that has such fearless journalism. I refer to the work of people such as the late Veronica Guerin and many other journalists who cover the area of crime. In recent weeks, we have seen some of the bounty of that work. Various documentaries through the years highlighted corruption in business and various organisations or examined the Troubles, yet that bravery has to operate under the cloud of the current defamation laws. Editors and journalists speak of it as a cloud and an ongoing pressure. At a time when traditional media, on which we rely for truth and standards and to challenge so many aspects of life, is under the pressure it is currently experiencing, this is an anomaly that needs to be resolved. Ireland cannot be left as a kind of hub for libel tourism, as it was described as several weeks back. That is not the kind of market or reputation we need, particularly now that the UK has left the EU. This is a serious area of law but, too often, it becomes demoted to tabloid fodder. There is a current example of very serious issues of law getting degraded and demoted to headlines and silly coverage. We need to move away from that. Mr. Didier Reynders, the European Commissioner for Justice, recently stated:
Ireland’s defamation laws should be reviewed as they may suppress the ability of the media to expose corruption ... The laws are notoriously strict, providing a low bar for lawsuits against journalists and media organisations that are often used to put pressure on journalists.
When the European Commissioner is saying that about us, we need to act urgently. The European Court of Human Rights and Reporters Without Borders have made similar suggestions and statements. Ireland was recently discussed in the context of issues that are happening in Malta. That is not somewhere we need to be in this regard.
It is good that we are moving away from the jury system. We need to ensure that people have recourse to justice and the right to access it but it needs to be done in a far more efficient manner. The cost of accessing justice has to be addressed. I am intrigued as to how the whole area in respect of strategic lawsuits against public participation, SLAPPs, is being considered but there is still significant vagueness in respect of the serious harm test. There seems to be a contradiction there and I would appreciate it if the Minister were to address that point. The whole area of SLAPPs is growing. It is extraordinary that people even thought of it in the first place. I welcome the intention to introduce an anti-SLAPP mechanism.
As I stated, an awful lot of progress in this country is owed to investigative journalism. We need to ensure that we get the balance right, however. That is the challenge. We need to get the balance right in the context of the rights of citizens to defend their name if it is being impugned and also the right of access. It is true that the whole area of defamation law is currently financially inaccessible to many people. Many of the reforms proposed in the report will address some of the cost issues but those who can afford to take law cases in this area at the moment tend to be wealthy and we need to consider that as well.
Equally, we have to stand up and defend the right of a free media. We have to defend the right of journalists to ask questions, conduct hard interviews, do detailed investigative work and make hard calls based on that work, whether it be in politics, sport, social life or life generally, as we have seen in this country in recent years. Where would we be in the context of the various exposures in respect of child protection were it not for investigative journalism? Where would we be without investigative journalism in the context of the various exposures relating to the church and its dealings with children? Where would we be in respect of corruption in politics or business without investigative journalism? Many tribunals have been established on the back of investigative journalism. Unless we act quickly in respect of this report, we risk diminishing the capability of investigative journalism and weakening it to the point where it no longer has a role to play. That would be a sad and bad day for democracy.
I refer to legislation in respect of caps on damages. It is a difficult one because there is generally a tendency in this country to lead with judicial independence and guidelines, but this issue is beginning to impact on insurance costs. The book of quantum is beginning to reduce insurance costs and that needs to be considered here as well.
Most important, we need to move it on. We need to move on quickly. Let this be a priority for the Government and implemented as soon as possible. The media landscape is changing before our eyes. I have not even gone into the whole social media side of things. The way media is done is changing before our eyes. With that change comes responsibility on the part of the State to protect its citizens, but also not to act in a manner that has a chilling effect on investigative journalism and media. As we speak, the Upper House is debating the Online Safety and Media Regulation Bill. That issue and this one are aligned, as is evident from some of the comments made today in the House. I wish the Minister well but I ask her to, please, give this the priority it deserves. We have been too long waiting for it. Too many investigative institutions have gone under, albeit not as a consequence of this issue. It is however, one of the reasons journalism and the media in Ireland is such an intimidating place to be in business at the moment.
Once again, it comes down to the difficulty of trying to strike a balance. Obviously, people have a right to their good name and to be able to defend themselves. Anybody who has had to have recourse to the courts at this point in time in respect of any matter, from planning right through to criminal investigations or anything else, knows the courts are absolutely backlogged and all the rest of it. As such, anything that can be introduced to facilitate streamlining needs to be considered.
I urge caution in respect of the possible removal of juries from defamation cases. People have a right to swift justice, particularly in the context of preserving their good name. I reiterate much of what has been said. It is about that difficulty of trying to find a balance. Obviously, fabulous work has been done through investigative journalism. We certainly do not need anything that will put a cap on that or an obstacle in its path but there has to be fairness across the board.
Many speakers have referred to the fact that one place where there is absolutely no level of fairness is online. That is not news to most people in this Chamber. Obviously, any moves that can be made to reduce the protection of anonymity for people who defame others online have to be welcomed and facilitated. All present would agree there is a much wider issue. The Online Safety and Media Regulation Bill is being discussed in the Seanad but also for discussion in this House is the recent agreement at European level.
My view is that it is incredibly important that we deal with the social media giants as publishers. We must ensure they exercise a certain due diligence in regard to what is being posted. Whether they are dealing with the Garda or others or whether information is provided to them regarding content that is harmful, wrong or defamatory, we certainly should make it easier to have such content removed as quickly as possible.
Beyond that, we need to realise that the real difficulty when it comes to social media giants relates to the information that was put out there by Frances Haugen in regard to Facebook, in particular, and the weaponised algorithms that can be used by connected networks, whether they are state or non-state actors, trolls or whatever else. We have seen the huge impact that can have. It is particularly bad when there are corrupt regimes that utilise what is being provided to them by a business that is quite happy to do it on the basis that it makes money. We also know that huge harm has been done in individual cases, where, for example, people, particularly young people, may have issues in regard to eating disorders. We all know now how these algorithms work in general but the main difficulty is that we do not know exactly how they work. There are very few people in the world who know exactly how the Facebook algorithm works. I know how it works for me and someone else knows how it works for him or her, but we do not know exactly how it is mapped out.
The argument has been made to me that in the case of Google, for instance, we can do a search or make a contention and we know Google will be fairly good at providing information on whether that contention is true or false. In regard to Facebook, however, we cannot say exactly whether that is the case. I know from speaking to Ms Haugen that she has raised the possibility of using agent architecture and making an attempt to put a simulated system in play in order that we could test how the whole thing works. I have somewhat digressed. The point I am trying to make is that as much as we need to deal with this particular legislation, we also really need to get to grips with the social media giants and the damage that is being done in that area. In particular, we need to get to grips legislatively with, and get some technical knowledge around, the algorithms and the damage they can do across the board.
It is 12 years since the enactment of the Defamation Act 2009. Although section 5 of the Act required that a review be conducted, we are only now seeing the produce of that review. In fact, section 5 stated that the review was to be completed within a year. However, we probably are in a stronger position for not having had that review after such a short period of time. When trying to appraise the impact of legislation that is seeking to change how court cases happen and how the legal system operates, we are better off waiting for a period of some ten years. There is a benefit, therefore, in the delay that has occurred.
As a barrister, I have represented many litigants who have taken cases in defamation. I also have represented many litigants, including media organisations, who have defended cases taken in defamation. My involvement does not give me any more authority or influence in this debate but there might be some benefit in the House hearing from a practitioner who has seen how that area of the law operates. It is worth pointing out that it is hard for people outside the legal system to understand the extent of defamation claims. Although there are no statistics on this, I would estimate that such claims amount to a very small percentage of all the claims that are issued each year, either in the High Court or the Circuit Court. In fact, I suspect they account for less than 1% of the total. However, simply because they are small in number does not mean this is an area of the law that should not be reformed, but it is important to have perspective as to the incidence of these claims under our legal system.
It is also important that we take into account the conflicting rights that arise in this area. In this legislation, the Oireachtas is trying to balance two conflicting Article 40 rights. On the one hand, we have the Article 40 right that each individual has to his or her good name. On the other hand, we are trying to balance the right people have to freedom of expression. It is always the case that where there are two conflicting rights, there is going to be difficulty in determining which right, on occasion, should supersede the other. That determination is the function of the Legislature, as we have done in other legislation. In the case of the adoption and tracing legislation that is going through the Houses of the Oireachtas, for example, we are also trying to balance two conflicting rights.
It is fair to say that when we listen to the public debate on our defamation laws, more attention probably is given to the right to freedom of expression. I say that not in any way to criticise the media. I perfectly understand and appreciate why they would want the laws changed and they may have a strong argument in that respect. However, as observers, we need to recognise that, obviously, public commentary in the media is not completely objective. There is a desire on the part of media to switch the balance more in favour of freedom of expression. I commend Una Mullally, writing recently in The Irish Times, on acknowledging that fact. Even though she was advocating that there should be greater weight given to the freedom of expression side of the balancing act, she recognised that, as a journalist writing for a newspaper, her preference was, of course, going to rest on that side.
It is important that we also look at how the right to one's good name operates. The right to freedom of expression is very visible and tangible. Colleagues have spoken about our need to be able to learn vital information from the media or in public discourse. That is a very obvious and pertinent point and it is one that needs to be emphasised. The right to one's good name probably is more nebulous. The best example I can give to Members and to any members of the public who are listening is to recall what happened in this House and elsewhere back in 2016 and 2017, when there were significant debates about what was done to a member of An Garda Síochána, namely, Sergeant Maurice McCabe. We all remember the reprehensible, dishonest and false campaign that was waged against him and the statements made about him in the public domain. Many of those statements were not broadcast in the media but there was a whispering campaign about him. The only remedy that man had in respect of those allegations was the Defamation Act. I remember speaking to people who expressed astonishment that there was not some law in place to make it a criminal act to spread false rumours that a person had been involved in reprehensible criminal activity. There was no such law. Sergeant McCabe's only remedy was under the Defamation Act. Obviously, he had a remedy in terms of his rights with his employer if the latter had breached his contract of employment. We need to have it in mind that the right to one's good name, although it is nebulous, is sometimes the only sanctuary people have where they have been subject to a very serious campaign of defamation against them.
We also need to recognise that, fortunately, we have very strong and independent media in Ireland. Deputy Calleary mentioned the excellent work the media have done in exposing wrongdoing in this country. It is important to point out that they were able to do that notwithstanding the existing defamation laws. We should acknowledge that Ireland was recently afforded sixth place in the world for press freedom by Reporters Without Borders. There is a lot of freedom for the press in this country. I know the media want more and I think we should change the Defamation Act to a certain extent, but we need to recognise that the media in Ireland are very strong, very trusted and very reliable. When I look at an article in a newspaper or hear a story broadcast on our media, I am fairly satisfied that the statements made in it are true. We need to admit that part of the reason we recognise and accept the information is true is that we know, because of our defamation laws, that the media would not and could not publish if it was false. At some stage, we must acknowledge that part of the reason we have such a strong and effective media in this country is that they are absolutely stringent in ensuring the stories they publish about people are correct.
As part of a broader discussion about trying to ensure that standards in journalism remain as high as they are now, we need to be careful about saying to the media at large that it does not really matter if they get stories about people wrong and that they will not face any sanction for that. That does not mean I am not in favour of reform. I have looked at the report. It is a very detailed report and there is a lot of very useful information in it.
As to what I assess as being the main issues with defamation law at present, I will say the following. First, most defamation occurs online, not in what would be referred to as our mainstream media, for reasons I have just explained. If somebody is defamed online by an anonymous person, in general the person who is defamed now has to go on a rather tortuous journey to the High Court in order to secure from the court a Norwich Pharmacal order. I welcome the fact that in the report it is proposed that a statutory scheme be put in place to ensure that everyone knows what they have to do if they have been subject to defamation online.
I also welcome the fact that the report has looked at the e-commerce directive. That directive is far too soft on social media companies. They are not viewed as being publishers. They simply say to themselves that they are hosting communities and they allow members of the community to state what they wish to state. It is an Elon Musk-type argument, which is a belief in absolute freedom of expression. I do not believe in absolute freedom of expression and I do not believe anyone in this House does. When it comes to the e-commerce directive, we need to ensure that if a social media company is told that something on its online platform is false and defamatory and if it recognises that, it has to take it down. I can understand why, in the first instance, there could not be a liability imposed on the company for the immediate publication. Once the company is warned, however, it needs to take it down immediately.
I also welcome the proposal in the report that juries should not hear offers to make amends. An offer to make amends involves a defendant who makes a mistake. We need to recognise that it is an occupational hazard in media and journalism that people make mistakes. It happens in every walk of life. If media make mistakes and defame people by mistake, the sensible thing for them to do, which in most cases they do, is to put their hands up and say they got it wrong. That should be an easier path for them. At present, under the law as it is interpreted, although not, I think, as it was intended under the 2009 Act, a plaintiff still has the entitlement to have that offer to make amends heard by a jury. That should be changed.
We hear a lot about the SLAPP proposals that will be introduced. I welcome them. Nobody should use litigation for any purpose other than the stated purpose of the reliefs sought in that litigation. The only reason you should take a defamation action is that you have been defamed and your reputation has been damaged in the eyes of reasonable-thinking people. If somebody takes defamation proceedings for a collateral cause, that needs to be slapped out. I welcome that the public participation part is emphasised.
That brings me to the issue of removing juries from defamation cases. Why are we seeking to remove the public participation of ordinary men and women from determining whether an article or publication has defamed an individual? I think I can understand the reasons the media want to reduce that involvement in that they may believe it will reduce the length of cases, but I ask them to tread cautiously and carefully. If I worked in the media industry, I would much prefer my viewers or readers to adjudicate on my work as opposed to a judge in the Four Courts who probably would not have read the paper before.
It is an interesting report, I welcome the opportunity to speak on it and I look forward to the Bill.
I thank the Deputies for their contributions to what has been an informed and enlightening debate. As the Minister, Deputy McEntee, said at the outset, our Department is committed to reforming defamation law into robust, modern legislation that addresses some of the complex challenges of a digital age. It is essential that our defamation legislation protects those human rights that are fundamental to democracy. There must be a right to freedom of expression and respect for the crucial role played in our democracy by a free and independent media and by other civil society actors in providing information and debate on matters of public interest. The legislation, likewise, needs to recognise the right of our citizens to their good name and reputation and their right to access to justice when these rights are unfairly attacked. Striking the right balance between those rights is a key aim of the Minister's legislative reform. This review is the culmination of five years of extensive consultation and research.
As the Minister has stated, defamation is an extremely complex area of law. That is why it was essential to take the time and effort to get this report right. The review is based on a wide-ranging public consultation launched in November 2016. The Department received a significant number of submissions, which speaks to the importance of this legislation and the range of views on it. Submissions were received from the broadcasters; the National Union of Journalists; the national and local print media; the Bar Council; the Law Society; Free Legal Advice Centres, FLAC; legal firms; and individual lawyers and academics. Social media platforms, including Facebook, Twitter, Google and Yahoo!, also made submissions, as did ISME, the Irish Council for Civil Liberties, the Press Council and the current and previous press ombudsmen.
In November 2019 my Department hosted a critical perspectives symposium at which Irish and international experts spoke on defamation law reform. There was extensive stakeholder participation in the event, which brought together the media, academics, the legal profession, social media companies, NGOs and relevant State bodies.
I reiterate the Minister's thanks to everyone who engaged with our Department during the review process and helped to inform this important piece of work. There was great convergence in some areas while significant divergence emerged in others. Overall, I believe that with the recommendations set out in this review, we have taken all perspectives into account to the greatest extent possible and have struck the right balance. We have also looked at best practices in other comparable jurisdictions such as the UK, Canada and Australia when developing our proposals for reform. Our Department is committed to enacting defamation law that will safeguard against any attempts to weaken and deter public interest discussion and investigative journalism.
The Minister has already outlined the package of measures launched last month by Commission Vice President Věra Jourová to combat strategic litigation against public participation, SLAPP, at EU level. As the Minister noted, our review already specifically recommended that the law be amended to introduce a new anti-SLAPP mechanism in Irish defamation law. The Commission's work seeks to strengthen protection at EU level for freedom of expression, taking account of the vital role played in our democracy by a free and independent media in providing information and debate on matters of public interest while respecting other relevant fundamental rights. The proposed directive seeks to enable judges to swiftly dismiss unfounded lawsuits against journalists and human rights defenders. It would also provide for several procedural safeguards and remedies, such as compensation for harm caused and dissuasive penalties for launching abusive lawsuits. The directive is limited for reasons of legal competence to civil proceedings with cross-border implications between EU member states. The Commission has adopted a complementary recommendation to encourage member states to align their national procedural rules with the proposed EU law. It also calls on member states to take a range of other measures, such as training and awareness raising, to fight against SLAPPs. We look forward to contributing to the discussion on these measures and sharing our experience of reviewing Irish defamation law.
It should be noted that a number of our fellow EU member states deal with defamation as a criminal matter, which can attract imprisonment and fines, rather than as a civil matter, as we do here in Ireland. I hope that our reformed and amended defamation legislation will see Ireland become a leader of fair and free expression in the European Union. That process is under way with preparation of the general scheme of a defamation (amendment) Bill. The Minister has committed to publishing the Bill in quarter 4 of this year, as set out in the justice plan of 2022. We look forward to engaging further with Deputies as this legislation progresses.
The review of this Act must be welcomed in all its aspects as what it has cost the Irish people since 2009 has been extraordinary. I compliment the Minister on proceeding with this review. We certainly have been out of sync with our European neighbours and countries all over the world. We have been a soft target when it comes to defamation cases. Getting rid of juries in defamation cases is to be welcomed as extraordinary payouts have been given.
The importance of the media being able to perform investigative journalism without fear of being sued is at the heart of this legislation yet they cannot have free rein to say what they like about people. This review of the Defamation Act 2009 will bring about legislation that must be welcome as a part of our transparency into considerable compensation in our courts.
Our investigative journalists have uncovered a great deal of wrongdoing in this country and we must be thankful for that. However, sometimes the media get it wrong. When they get it wrong, the recourse is that they put their hands up. However, much of the time people say they will fight this and take it for two or three years at considerable cost. At the end of the day, the person who has the case brought against him or her, whether the person is right or wrong, usually in the media outlets looks like he or she is wrong. I myself saw this when I brought a truck into the Dáil and the story went out that I had no insurance on the vehicle even though I was contacted and I said that it was above on the dashboard. It was a replacement vehicle. It went on the media. I could have taken a defamation action against that media outlet but I did not. They took the story down. That was good enough for me. They realised that what they had done was wrong and they took the story down. However, that was a case that somebody could have taken; I did not. They made their mistake and I was happy they took it down.
We also must look at how journalism can be practised without fear of these type of cases coming against the journalist but we must make sure that a person's name is respected. If, regardless of who brings a defamation case, the right outcome is given and if the person's name is clear, it must be portrayed that it is clear because the media outlook on this can show that even if the person was cleared, he or she still, in the eyes of the public, looks wrong.
I support this review and I support the changes that will be made.
I too thank the Minister, Deputy McEntee, and compliment her on proceeding with this legislation because we badly needed a review.
Defamation is such a difficult area and it is a very expensive area, if a citizen is defamed. It happened me, actually, and I took a case. We got it corrected but it was frightfully expensive. When blatant untruths were published on a Sunday edition I did not want anything only the truth to be rectified and a donation for a local hospital by way of, when they accepted they were wrong, restorative justice.
When I got the bill, the costs were paid for my lawyers. My barrister told me that defamation litigation is frightfully expensive. There was only a number of emails and a couple of short phone calls. There was no visit to the Four Courts or any court. It was frightfully expensive. Justice that is out of the reach of persons is not justice at all. Many people can be defamed and they have to suck it up. They cannot afford to get their rights. There is need for changes here.
For people in businesses, the Minister has a name on it here, "transient defamation", where businesses are sued for comments made in the course of refusing services, such as questioning in relation to suspected shoplifting. This is a difficult area. It is a minefield for the business, for the store manager and for employees and it is an awfully thin line. It is very delicate. It is the same with refusal to premises, if one is running a food outlet or a licensed premises. Proprietors have significant issues and there are considerable concerns coming now with other proposed legislation that has not been published about the change of the licensing law, the greater liberalisation of them and the greater ease of obtaining licences. There are issues there.
I support business people out there. They have a plethora of laws and new regulations to deal with but there also needs to be some solid ground to stand on. If there are blatant abuses going on, shoplifting, unpleasant behaviour or whatever, the staff must be protected first of all, their business must be protected and so too must the good name of the business while being fair to the customer as well. It is very difficult, is all I am saying to the Minister, for people to operate in business with these threats of defamation and the sheer figures that were paid out by juries. Thankfully, these figures were taken away when it went to the European court.
There is a great deal of work to be done here. I urge caution and to make haste slowly. I wish the Minister well with it and ask her to listen to the people who are out there operating at the coalface.
I am glad to make it here in time to contribute to this debate. When a few speakers pulled out, it caused a bit of a flurry.
I thank the Ceann Comhairle for the opportunity to speak. It is interesting that the Government has chosen now to review this Act, which was due to be reviewed in 2014 under the Act itself. It is also interesting that it was in the 2020 programme for Government to review the Act despite it already being in the legislation that it should be reviewed anyway. Has the Government completely neglected its responsibility to uphold the law? Must all legislation be written into programmes for Government in order for it to be implemented? Surely this completely undermines all legislation.
What is the point in introducing legislation if it has not been implemented? This further proves my point that we are great at introducing legislation in this country but terrible at implementing it. If one was a spaceman looking down at this country, as I have stated previously, one would look at the legislation and say that this is a great place but when the spaceman actually lands here and sees how it is implemented, he or she would see that it is totally different. This is an ongoing issue that needs to be addressed. We cannot continue churning out legislation with no intention to uphold and implement it. It wholly undermines our role as legislators and the laws of this country.
In terms of where this review falls short, we need to review the Defamation Act 2009 as a threat to the right to freedom of expression. The freedom to exchange ideas, views and experiences freely without fear of disproportionate legal responses is fundamental to a fully functioning democracy.
As it currently stands, the Civil Legal Aid Act 1995 assigns defamation as a designated matter that is excluded from legal aid. This is concerning as it basically means that only those who can financially afford to risk legal costs can take action under the Defamation Act. I note the review talks about dealing with this but it is leaving it to other legislation - the civil legal aid review - to be dealt with which will be a long way down the road. This prices many people out of taking legal action and is incredibly unfair. A person is more likely to withdraw a statement than defend it without proper legal representation. This would have a significant effect on free speech. Everyone has a constitutional right to equality before the law and this exclusion threatens this constitutional right. Everyone should be allowed legal representation in order to defend properly what they say.
On top of this, the exclusion of defamatory legal actions from the civil legal scheme is also contrary to Article 6 of the European Convention on Human Rights, ECHR, which provides that everyone is entitled to a fair and public hearing in the determination of his civil rights and obligations. Unfortunately, in Ireland, that means that everyone is equal under the law provided he or she can afford to pay for it. That is the reality of the situation here because the law is reserved for the people who can afford it. We should be addressing that and this legislation should be used to address that as well. An opportunity has been lost here that it has not included a right for people to get legal aid in this legislation rather than waiting for other legislation to come along.
The Irish Council for Civil Liberties made a great submission to the Department of Justice on the review of the Defamation Act. One of the many recommendations it made is that the burden of proof on the defendant to prove an alleged defamatory statement is true should be shifted to the plaintiff to prove the statement is false. This is the norm in other civil cases and should be the case here. The European Court of Human Rights has found that the presumption of falsity can infringe on the right to freedom of expression. Another disincentive to defend defamatory actions is the uncertainty and unpredictability about the amount of damages that can be awarded. Decisions should be restricted to a decision on whether a defamation has taken place rather than what precise damages should be awarded. It goes without saying that the judge should decide the amount. That is included in the Bill.
I am glad this review has taken place. It is undoubtedly well overdue; in fact, eight years overdue. I hope these legislative reviews are taken more seriously in future. I also hope the concerns I have raised today are taken into consideration. People must have a right to free speech and have a right to call out hate speech, for example, without the risk of being threatened with defamatory actions as well.