Verona Murphy (Wexford, Independent)
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If Deputy Carthy is here to take the Defamation Bill, we will proceed.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Did I nearly get a break there?

Verona Murphy (Wexford, Independent)
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You nearly did.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I have just got indigestion. I am blaming the Minister.

Verona Murphy (Wexford, Independent)
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Section 4 is opposed. Does Deputy Carthy wish to speak on it?

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The Ceann Comhairle is far too efficient for my liking.

I will propose the deletion of the entire section. Section 4 relates to the role of the jury in High Court defamation actions. It would be important if the Minister could give us clarity on whether he is planning to proceed with this section in its entirety. I put on the record very strongly that Sinn Féin is opposed to the removal of juries from High Court defamation cases as a matter of principle and we will not be able to support the Bill if this remains the Minister's position. It is important to put on the record that our opinion is shared by many in the legal profession. It would leave Ireland as a complete outlier in common law jurisdictions globally.

I was not part of the pre-legislative scrutiny deliberations, but having read the transcripts of the Oireachtas committee and the final pre-legislative scrutiny report, the importance of members of the public determining in issues relating to damage to reputation and freedom of expression was very clearly highlighted by both the Bar Council and the Law Society. This holds weight and seems like eminent common sense. In adjudicating whether a person's reputation is damaged, who better to pass that judgment than a jury of one's peers?

Of course, nobody is suggesting the current system works perfectly. It is fair to say it does not always, particularly when it comes to the provision of damages. That seems to be the Government's argument, namely, that juries award damages inconsistently and sometimes excessively. Going back to the committee deliberations, everyone is open to having a discussion on how we deal with that issue without removing juries entirely. Perhaps juries could make determinations but we could restrict adjudication on the quantum of rewards to the Judiciary. There is space to address what Government says is the primary issue without throwing the baby out with the bath water or, as somebody said, taking a sledgehammer to a screw.

Unfortunately, I have noticed a tendency across a number of governments that, as opposed to fixing an issue, they ban it, get rid of it or overcorrect it. I have seen this time and again when Government Departments delay EU directives, for example, and then the simple solution is to just ban a practice when a number of member states might simply adjust.

Is the Minister open to reconsidering his approach to the outright gutting of the role of ordinary people serving on juries and making determinations as to whether defamation has occurred? Is he willing to have discussions on later Stages of the Bill? Like his predecessor, is he intent on going ahead with this, knowing that if we resolve this issue alone, we could easily come to a consensus and have a Bill that has the full support of this House? I urge the Minister to consider his approach carefully.

Marie Sherlock (Dublin Central, Labour)
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I move amendment No. 1:

In page 6, between lines 19 and 20, to insert the following:

“Role of jury in High Court defamation actions

4. (1) Subject to subsection (2) and notwithstanding section 94 of The Courts of Justice Act 1924, or any other provision made by or under any enactment or rule of law, where a defamation action is tried by the High Court sitting with a jury—

(a) all questions of fact shall be tried by the jury, and

(b) damages (if any) shall be assessed and awarded by the trial judge.

(2) This section applies only to defamation actions that are instituted on or after the date of its coming into operation.”.

I speak as a former media spokesperson for the Labour Party. I listened for a long time to the concerns of newspaper editors about the crippling cost of insurance in the operational costs of newspapers. We all need to support our regional and national newspapers in this country. There was a campaign for an overhaul of the defamation laws, understandably, as newspaper editors saw at the time that the risks associated with defamation were having a disproportionate impact on their insurance premiums. However, we have serious concerns about key elements of this Bill. This Bill is based on the recommendations of the in-house review of the defamation Act 2009, published by the Department in March 2020. This took place two years before the Supreme Court judgment in March 2022 in the case of Higgins v. The Irish Aviation Authority where Mr. Justice John MacMenamin delivered the lead judgment. Our view in the Labour Party is the in-house review and the Bill are out of date. Some of us are familiar with conversations regarding personal injuries. Judicial guidelines had to be introduced to put some control on damages arising from personal injuries. The courts Act 1988 abolished juries for personal injuries. We were promised then that it would reduce excessive or disproportionate awards, significantly reduce delays and legal costs, reduce the length of hearings, provide greater clarity and certainty and would facilitate earlier settlement of cases. As we all know, it did nothing of the sort. Insurance premiums continued to soar for decades. Even with the introduction of the Personal Injuries Assessment Board, PIAB, we still did not see the necessary reforms. It was only when judicial guidelines were introduced that we began to see some changes in what was paid out.

That is why the Supreme Court judgment in the Higgins case is groundbreaking and so important. For the first time, the ruling in that case categorised general damage awards in defamation cases in four categories. The first and lowest applies to moderate defamation for awards of zero to €50,000. There is a second band for what could be termed medium damages, awarding €50,000 to €125,000, and a third category for serious defamatory material, from €125,000 to €199,000. At the top of the scale of awards in the case of the most egregious defamation are awards in excess of €200,000 made before the courts. The Supreme Court recognised that these awards must be seen as truly exceptional and there was very real damage to the individual's reputation, where the judgment was clearly tilted in favour of the vindication of a good name.

We argue that the judgment in the Higgins case should be given more time to bed down. It is only three years old. It needs to be applied and its application assessed. It is important to note that the law as set out in the Higgins case is still the law. Nothing in this Bill attempts to change that law. It does not matter whether future cases are heard by a jury or a judge sitting alone - either way, there will still be four bands of awards set out by the Supreme Court. Those bands will continue to be applied. I do not see how the abolition of a jury will affect the level of damages awarded in future cases since they will continue to be awarded in a way set down by the binding decision of the Supreme Court.

I wish to refer to another case in 2017, McDonagh v. Sunday Newspapers Ltd. Mr. Justice MacMenamin noted:

The right to a good name, freedom of expression and public opinion are closely connected concepts, in which the concept of 'the views of right thinking people' are inherently part of the test. Juries are intended to reflect the views of the public. They [reflect] the public mind and public opinion in balancing the constitutional values embodied in statutory form. This 'public dimension' is of great relevance in measuring whether a publication is actually defamatory at all; if it is, whether there is a defence to it; and if a publication is found to be defamatory, the measure of damages.

If defamation is about damage to the standing of a person in the community, who is better to decide? That is the question in front of us - is it a judge or a cross-section of the Irish people? We express some surprise that we have not seen an amendment from the Minister to this Bill. On Second Stage, he told the Dáil, "I share many of the concerns being expressed by other Deputies. The decision to abolish juries in the High Court would be short-sighted." He went on to say, "I am concerned that the reason to remove juries for the purpose of defamation actions has not been thought out." The obvious question is: has the Minister changed his mind? Why? Some may argue there is an element of departmental capture in what we have before us on Committee Stage.

If the main reason to abolish juries in defamation cases is to make litigation less expensive, we must consider that one reason for the cost of defamation cases is that the law does not permit these cases to be brought in the cheapest available court. Since 1924, our courts Act has excluded defamation from the jurisdiction of the District Court. That means the simplest defamation action starts out with a value of at least €15,000. We ask the Minister to consider moving minor defamation cases to the lower court where lower damages will be awarded. If that does not prove to be the case, we will table an amendment to that effect on Report Stage.

ISME and retailers have also raised concerns that defamation cases can be used to inflict costs on a defendant. Will the Minister address them in his comments? On Second Stage, my former party colleague, Brendan Howlin, the justice spokesperson for our party at the time, quoted a former president of the High Court, who said that in this country you have to be "a pauper or a millionaire" to pursue legal proceedings. The current Minister, who was then a backbench TD, disagreed with his contention, arguing ordinary citizens can and do get access because of a no foal, no fee that operates to fund litigation. As the Minister knows, no foal, no fee is between a litigant and his or her lawyers. If the plaintiff does not win the case, the lawyers will not be paid. If a no foal, no fee agreement does not protect a litigant against the claims of the other side's lawyers, an enormous liability arises.

That is why, as the Minister well knows, when a lay person goes into a solicitor's office and seeks advice about taking a defamation case or indeed many other types of cases, almost the first question that will be asked by a lawyer is "Do you own your own house?". A homeowner or a person who has assets of any type faces the very real prospect of an award of costs being followed up by adjudged mortgage or an order of sale. That is why the distinguished former president of the High Court pointed out that only millionaires and paupers can be found in our superior courts.

I want to make two final and related comments about defamation and its cost. First, it is my understanding that it is still the case as a general rule, and without considering the complexity of any particular case, that legal fees in defamation actions are higher than the rate applicable to any other civil action. We should be using this opportunity to abolish any informal practice or standard within the practise of law that permits legal costs adjudicators to treat defamation as special and therefore permitting higher fees. Second, the Civil Legal Aid Act of 1995 still lists designated matters in respect of which legal aid may not be granted by the Legal Aid Board. The refusal to cover defamation seems to be based on a notion that suing for defamation is not only, but out to remain, the preserve of the well-to-do. Obviously, that is clearly a very outdated notion at this point. This attitude is completely at variance with the constitutional obligation of the State to vindicate the good name of the citizen. Given the constitutional status of the right of people to their good name, this exclusion is simply unjustifiable and we believe this restriction needs to be deleted. There are more than enough safeguards in the law to ensure that the Legal Aid Board does not fund frivolous or spurious actions.

Gary Gannon (Dublin Central, Social Democrats)
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There is much to welcome in the legislation as proposed. While we support many of the anti-SLAPP measures that are included, like others, we in the Social Democrats recoil at the absence of juries within the courts system. Juries provide the judgment of a person's peers. Juries have a sense of public confidence and democratic principles built into them by their very nature. Juries reflect public values and real-world experience. They enhance trust in the justice system and represent a core element of democratic justice - the people's justice. We do not agree with removing juries and simply having the judgment of members of the Judiciary. While judges play an absolutely vital role, in many instances they are not reflective of society as a whole when it comes to their demographic profile. That is certainly some thing we would like to see changed and enhanced but it is not the case at the moment. Juries provide protection against judicial overreach and ensure fair and balanced decisions, especially in high-stakes cases. Consideration should be given to alternatives to abolishing juries. We could address court delays by hiring more judges. Ireland has the lowest number of judges per capita in Europe. We could also consider hybrid models such as those that exist in New Zealand and British Columbia, where jury trials can be requested and approved by a judge.

The Bill removes the long-standing right to a jury trial in defamation cases. This right dates back to the Magna Carta, which is more than 800 years old. It cuts ordinary citizens out of the judicial process and undermines democratic participation in legal decision-making. This is of major importance and should be protected when it comes to jury trials. Juries ensure fairness and reduce bias. The fact that a cross-section of society is making a determination on the standing of a person is important, especially in cases involving powerful entities. Juries offer a check on the erosion of civil rights and support citizens' involvement in justice, just like their involvement in politics when them to go out and vote.

Jury trials apply in other civil rights cases involving questions of liberty, free speech, reputation and property and singling out defamation creates inconsistency and unfairness within legal practice. Jury trials for defamation are still allowed in the US, UK, Canada, New Zealand and much of Australia. Abolishing them would make Ireland an outlier. One of the Government's justifications is the unpredictability of awards. On the surface, this might seem like a fair enough argument but it does not stand up to scrutiny. For example, very few jury awards have been overturned on appeal. We also have the Supreme Court case which has offered very clear guidelines in this area. Speeding up trials is another justification but there are no examples of this. In Britain, when similar legislation was introduced in 1998 in personal injuries cases, the opposite was true. There is no evidence that jury trials are more costly. Judge-only trials have also been lengthy and jury verdicts are harder to appeal, often resulting in faster resolutions.

Jury trials have long protected civil rights. The recent Supreme Court changes have addressed many of the Government's concerns. No compelling reasons to eliminate jury trials in defamation cases have been presented and backed up by evidence. It is better to let recent reforms take effect and monitor outcomes before removing that fundamental right. Preserving jury trials safeguards the democratic process. It is important in any democracy to build public trust in the judicial system.

Catherine Connolly (Galway West, Independent)
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I do not have the cluster of amendments in front of me but we are speaking about taking away the right to jury trials. I wished the Minister the very best in his new career but I cannot but go back and read out his speech. I do not know how he is going to get around that, other than by the fact that he now has power or, as has been alluded to already, has been captured by the Department. I do not wish to embarrass him. In fact, I respect him. I may have been in the Chair on the day on which he made the speech in question. He agreed with us in opposition and shared our concerns. I presume he still shares our concerns because nothing has changed except that the Government is now intent on ramming this through.

The Minister is in a difficult position and that is where moral courage and leadership comes in. In a world where we really need it, this is the time to shine, to show moral fibre and stand up. I say that with the greatest of respect. I would not like to be in the position the Minister is in now and having to eat my words. I do not think he should eat his words. He should be proud of them. Let us see what he said. It was very succinct and clear. He stated:

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

Presumably it is still short-sighted. He went on:

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

Presumably, that is still his assessment. The Minister addressed Deputy Howlin and then went on to state:

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

I do not wish to labour the point. It is there in black and white. I appeal to the Minister to show moral courage. What is happening here is nothing less than bowing to vested interests. I attended an event in the audiovisual room lately. It was packed. I say this at the risk of losing votes, but that is immaterial to me. The only time that I ever see the audiovisual room packed is when the media turn up. I have the greatest respect for the media up to a point. On two occasions that I have been in the audiovisual room recently, we have been hanging from the rafters waiting for our little line from the media. The media appealed to our good nature and argued that we must respect them. Obviously, the media is absolutely vital in a democracy. We need the media and we need it to do a good job. On both occasions that I was there they went on to talk about abolishing juries and on both occasions they produced nothing except rhetoric and repetition. Indeed, I took the opportunity to point out to those present that they were simply using rhetoric, repetition and God knows what words without substance to describe the benefits of abolishing juries.

Now the Minister finds himself in the position of supporting that empty rhetoric even though he was totally against it.

The Irish Council for Civil Liberties is telling us absolutely not to do this, as are other organisations. I am not inclined to pick out one over another, I am always impressed with the Irish Council for Civil Liberties and all the other groups, but I do wish to quote a former judge. The Minister might have used this line when he made the speech to which I refer, but I am not 100% sure. Mr. Justice Bernard Barton, now retired, went to a lot of trouble. He is former head of the civil juries division of the High Court. He, along with senior counsels - I think junior counsels were also present on the day - made a presentation in the audiovisual room and set out the facts for us. The Minister knows that Science Foundation Ireland – as it was – always told us about the importance of evidence and that our policies and decisions should be based on evidence. Remember that? There was a lecture from on high from Science Foundation Ireland to always have facts. Here we have the facts from a former judge who told us precisely the danger of what we are doing if we pass this legislation as drafted. He stated:

If enacted, the proposal would not only strip the citizen of the right to choose the mode of trial by which the facts of a case are to be decided – whether by judge and jury or by a judge alone – but would also [and this is equally important for me given the 25 years I have spent in local politics and the Dáil, where I have been watching the constant diminution of local democracy and the removal of powers, and now we are doing the same thing in the one area where people can participate in the courts] remove the public from participation in the administration of justice ...

He went on to state:

While the proposal is presented as a mere procedural change through the simple expedient of dispensing in the future with jury trial in High Court defamation proceedings, the means by which this objective is to be achieved is through the total abolition of an ancient legal right [as Deputy Gannon outlined, dating back to the Magna Carta]

I do not know many judges would take the time to come to the audiovisual room with their colleagues and write a detailed paper to ask us to please not do this because, at every level, it is dangerous. The simple thing is that it is not based on fact. Whatever problems were there with the questionable validity of the decisions of juries or the fact that they gave disproportionate awards were all dealt with in the Higgins case.

There was a cross-party committee. Was the Minister its chair or a member? He was neither. I am sure he is very familiar with the committee anyway. Nobody dissented from its report. The Minister has been left on his own tonight. I wish the members of that committee were here to give their opinions. The committee offered many recommendations. Backbenchers cry out for time to speak. We have had a major delay in getting on with the business of the Dáil because Members have said they do not have time. They should take a look at what is happening. There is no time limit on this debate and there is not a member of the former justice committee in the House that I can see. The committee made 18 recommendations, to which previous speakers have already alluded. I am not sure if they were made in order of priority, but recommendation 1 states, “The Committee recommends that the proposal under Head 3 to abolish juries in High Court defamation actions should be removed.” Recommendation 2 states, “The Committee recommends that juries should be maintained in High Court defamation actions in order to make findings of fact” and continues in relation to the quantum of damages. I really do not know what has changed since September 2023. I am not sure why none of the former members of the committee is here to stand over what they agreed to. I know we are all busy. I was taken by surprise that this debate began early. I am delighted that it did. I am not one to point the finger but it is certainly significant that there is nobody here from that committee to state that this was a cross-party view.

The Ceann Comhairle will be glad to know that I will finish in a minute or two. I appeal to the Minister on a broader level about the fact that at a time when the Government talks about misinformation and disinformation and restoring trust, the biggest problem I experience as a politician is the lack of trust and belief in what we say. I have no difficulty in people having a different view as long as they can trust me. That is what I stand for - not rigidly, but I stand for something. I am not talking about myself in particular but any TD. Here we have someone of the Minister’s calibre and people of the calibre of those who served on the committee saying that we should not to abolish juries. We are going to abolish juries, however. Something somewhere is wrong.

We need leadership today more than ever. Democracy is being diminished daily at every level. It has been diminished in the context of our planning laws - a process which started when we stopped people from appealing to An Bord Pleanála if they had not gone in at first at local authority level - the removal of powers to deal with waste management and the removal of powers from councillors. In addition, we go rid of town councils and so on. As a society, we have very few avenues by means of which we can participate. The Minister knows better than I, because he has been in the House longer, that the consensus mentality is dangerous. I read something recently that I will paraphrase: doubt is difficult; certainty is dangerous. The certainty with which the Government tells us that juries need to be abolished on the basis of non-facts and as a result of pressure exerted by particular groups is especially worrying. It tells us that we have learned nothing. Go back to the banking inquiry and the Nyberg report. The big thing that man highlighted was the consensus mentality and how nobody spoke out and everyone went with the flow. We are back at that stage with everything – with neutrality and with Gaza and Palestine, whereby if any of us speaks out, we are told we are anti-Israel or antisemitic.

The Minister might ask why I am bringing all this up. It is because it is the same theme of the consensus mentality at all costs. I am asking the Minister to break that, not only for the sake of breaking doing so but also because of the words he spoke very honestly and openly here when he shared his concerns and thought it was the wrong decision. It is time to make the right decision.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank colleagues for their contributions, to which I will respond to presently. This is the first opportunity I have had since I was appointed as Minister for Justice to speak on the Defamation (Amendment) Bill. I was not, as is apparent, Minister for Justice when the House debated Second Stage.

It is important that I, as Minister, acknowledge the difficult role the Oireachtas is trying to perform when it comes to enacting defamation legislation. We are trying to balance two competing constitutional rights. On one hand, there is the right to one’s good name, which is expressed in the Constitution and which must be given statutory effect. That is the purpose of the Defamation Acts that have existed since the foundation of the State. Separately, we must recognise and respect the right to freedom of expression which is also contained in the Constitution. That is similarly given effect not just in terms of the defamation legislation but also in other legislation. It is a difficult balancing act for any Oireachtas to try to achieve when there are two conflicting constitutional rights.

My assessment during my membership of Dáil Éireann since 2016 is that there is probably greater advocacy on behalf of the right to freedom of expression than the right to the protection of one’s good name. That is probably because the former is more organised than the protection of the latter. However, as I have emphasised previously, we need to recognise that sometimes when it comes to the protection of one’s good name, the only remedy that people have is through the defamation legislation. We in this House are all aware of situations that arose when a prominent member of An Garda Síochána had scurrilous and calumnious allegations made against him. The only remedy that person had was through the defamation laws. It is sometimes forgotten in the debate about defamation that the reason the laws are there is for the purpose, first, to ensure that a person has a statutory mechanism to vindicate the right to their good name. Second, however, there must also be similar respect for the right of journalism and the media or any publisher to publish information which is true or information which is protected not because it is true but because of the other many statutory defences that are set out in the Defamation Act.

Before I deal with the two issues that have been raised in these amendments, I will speak in general about the role of juries in civil actions. Section 4 of the Bill includes a reference to the Courts of Justice Act 1924. After independence, it was generally the case that most civil actions were to be determined by juries. As has been mentioned by Deputy Sherlock, there was recognition in 1988 that it was simply no longer plausible to have juries determining personal injury actions. It worked fine when there were three or four personal injury actions per day in the Round Hall of the Four Courts but it is no longer tenable. Many personal injury actions take place, not only in Dublin but around the country. To have juries hearing personal injury actions would require a considerable number of jurors to be available. It would also delay the determination of those cases. In practical terms, there is a difference between a civil action that has a jury and a civil action that does not. Time is spent swearing in the jury at the outset. That can take approximately two hours. Time is spent at the end of the case with closing speeches to the jury. Time is also spent on the deliberation of the jury before it reaches its verdict. All those factors convinced a former Oireachtas in 1988 that for personal injury claims, we should get rid of juries. I do not think many people would suggest that was a wrong decision.

Deputy Sherlock mentioned that the removal of juries had not resulted in a reduction in the cost of insurance premiums. However, we do not know what would have happened had juries remained in personal injury actions. I do not think it would have been feasible for juries to remain in personal injury actions for a lengthy period.

There are two issues to which I am being asked to respond. The first is the amendment in the name of Deputy Kelly, which was spoken to by Deputy Sherlock. It seeks to do something different than what is sought by other Deputies. The amendment seeks to state that juries would have a role in the determination of questions of fact that arise in the course of a defamation action but would have no role in respect of the assessment of damages. That is what is contained in the amendment tabled by the Labour Party. I will respond to that briefly. My assessment is that it would be inappropriate and would divide functions between a jury and a judge. There should be a link between who determines that a publication is defamatory and the entity that decides what should be the remedy for that through the award of damages. I oppose the amendment submitted in the name of Deputy Kelly.

Deputy Sherlock mentioned that the Higgins case provided direction for a court in respect of the assessment of damages. If a jury is not going to assess damages, which is the position of the Labour Party, the Higgins case would not be relevant to a jury. That does become an argument on the general question of the retention of juries because, although juries will be advised about the findings and dicta in the Higgins decision, they are not as bound as a High Court judge is by the determination of the case. I regret to say I will have to oppose the amendment submitted by the Labour Party.

There is a broader principle and objection put forward by the Social Democrats, the Labour Party, Sinn Féin and Deputy Connolly. The contention there is that the section itself should be opposed.

Deputies Sherlock and Connolly have effectively referred to what I said on Second Stage. I will tell the House what has changed since the Second Stage debate. In many respects, Deputy Connolly and I are in different positions. There are great advantages to being an Independent Member of Dáil Éireann. There are also disadvantages.

Catherine Connolly (Galway West, Independent)
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The Minister also has a choice.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Similarly, there are many great advantages to being a member of a political party but there are also disadvantages, as I am sure the other Deputies here will acknowledge. One of the consequences of membership of a political party is the need for compromise. There has been a general election since the Second Stage debate. Fianna Fáil put forward a manifesto, which I supported. It included a requirement that the defamation Bill that was going through the Houses of the Oireachtas be enacted. There was then a debate between different parties about the formation of Government. A programme for Government was agreed between the two parties. I am a Minister in that Government. I am bound, because of the principles of compromise and collective responsibility, to give effect to what was agreed in the programme for Government. It was agreed in the programme for Government that there was to be enactment of the defamation Bill as it went through Second Stage. Deputy Connolly can say that lacks moral courage, but that is the difference between being an Independent and being a member of a political party. Whether or not juries remain in High Court defamation actions is not a question of morality. It may, however, be a question of morality when we consider what I said in the Oireachtas previously. Others will, no doubt, present it as me changing my mind. I do not agree with that. What can be seen here is a recognition of the compromise that is required if one becomes a Minister in a Government and if one signs up to a programme for Government that contains a principle that conflicts with what one said earlier. Deputy Connolly and other Deputies are perfectly entitled to criticise me in light of what I have said previously. However, I must recognise, as Minister for Justice in a Government that has a programme for Government in place, that I am bound by the terms of the programme for Government.

I will advance the basis on which that has been put into the programme for Government and the basis on which it is provided that the Government wishes to remove juries from defamation actions. There are very few civil actions remaining where juries determine the cases. The only civil actions remaining in the High Court where a jury determines the outcome are defamation, false imprisonment and trespass to the person, sometimes known as assault. Those are the only cases in which one has an entitlement to get a jury in a civil case in the High Court. If one takes a defamation case to the Circuit Court, there is no issue because one is not entitled to a jury in a Circuit Court defamation action. I ask rhetorically that if people genuinely believe juries are so necessary for the purpose of vindicating one's good name, why then is there no amendment that states there should be a jury in a Circuit Court hearing of a defamation action.

The principal reason the programme for Government contains this provision, which requires that the defamation Bill be enacted as it stands, is the belief that the removal of juries will speed up trials. That is one of the reasons. It is probably hard to dispute that the removal of juries would speed up a trial. As I indicated at the outset, and as a judge who presides over civil jury actions in the High Court noted recently, it takes time to put in place a jury. Individuals are selected. They are told to come to court at 10.30 a.m. There is then a process to select a jury, which invariably goes on until 1 p.m. Jurors can be challenged. At that stage, you have lost half a day. The jury is then empanelled and sworn in. There follows an opening speech to the jury. Counsel for the plaintiff gives an opening speech. The case then goes on in the orthodox way with witnesses giving testimony. At the end of the evidence from both sides, there are closing speeches to the jury. There is then the judge's charge to the jury. There is then the deliberation and determination of the jury. Notwithstanding what anyone may think, it is empirically clear that the length of time it takes to determine a defamation action will be reduced if juries are removed. I do not think that can be disputed and it was not something I suggested on Second Stage. Time is expended in that way. Time in the civil courts means money and expense. It is inevitably true that the longer a case goes on, the more costly it will be.

Deputy Sherlock mentioned earlier that defamation actions are the most expensive. That is not my understanding. If she looked at the fee notes from a commercial case, she would notice they are considerably higher. Even taking her point, it reveals that the longer a case goes on, the more it will cost.

I would have thought that was the principal reason Government included this in the programme for Government.

Then there are issues of certainty as to what will be awarded. If somebody asks a senior counsel what the likely outcome is of succeeding in a case for personal injuries, for example, a broken leg, that senior counsel will be able to assess fairly accurately the likely award from the judge. It will be within a range of figures. We now have the personal injuries guidelines. They will be able to accurately advise a client as to the likely outcome. That is an advantage for a plaintiff. Similarly, it is important for a person being sued, who can be told what the likely award against him or her will be if it goes wrong.

One of the downsides of assessments of damages being determined by a jury is that it is extremely difficult to tell a client, whether a plaintiff or a defendant, what the likely outcome of a jury is. I have great respect for juries and they generally, in my assessment, get it right, but jurors' predictions and outcomes are very hard to advise on. That has an impact on people being sued and on insurance companies covering people being sued. They do not reliably know what range of figures could be involved. That is the reason, notwithstanding the eloquent contributions of all four Members here this evening, that I - and it is a roundabout way of going to it - cannot agree to the amendment tabled in the name of the Labour Party Deputy and I must insist that the section continue as it is. I hope that has not put the Leas-Cheann Comhairle to sleep or anything like that. That is the end of my contribution.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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It is very interesting, Minister. I call Deputy Carthy.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I thank the Leas-Cheann Comhairle. I ask his indulgence because we were rushing at the start and skipped over sections. I want not to oppose section 3 but to ask the Minister for clarification on a point. One of the other recommendations in the report of the pre-legislative scrutiny from the justice committee of the previous Dáil was that the definition of "periodical" should be made clearer, specifically regarding whether publications from broadcasters - say, the RTÉ website - would come under the remit of the Press Council or Coimisiún na Meán. The Oireachtas Library and Research Service produced a comprehensive review of the Bill versus the pre-legislative scrutiny report. In the review, it pointed to it not having been possible to include such a provision due to a lack of stakeholder agreement at the time. Will the Minister speak to this? Is it something he has considered since his appointment as Minister? Would he be in favour of it? If time allowed, would he be willing to look at a definition on later Stages? Essentially, does he plan to return to it?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Is that the definition of "periodical"?

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Yes, the definition of a "periodical". It is a small point but I omitted to talk about it when we were skipping through section 3 and I want to put it on the record in case we table an amendment at a later stage.

I do not know if the Minister intended them this way but I interpreted his words to mean he did not agree with this but was bound by collective government, the programme for Government and decisions previously made to pursue it. That is astonishing. Of course, a Minister can bring a recommendation to Government that, on balance, a recommendation made by a previous Minister is not only contrary to the current Minister's belief but also that being dogged in the pursuit of that particular provision prevents the Dáil collectively from moving forward with reformed defamation laws. That is very disappointing.

On a number of aspects, the Minister misses the point the Opposition made and I find that disappointing considering, as has already been said, the Minister himself made virtually the same points we are making now. He understands as well as anyone, you would imagine, what it is that we are saying.

Sometimes the public has the view that the media, including newspapers and broadcasters, cannot publish lies. That is not what the law says. Media can, and on occasion do, publish lies. The law sets a high bar for somebody to take a case that he or she was defamed. The definition of "defamation", though not a legal definition, is essentially that it is the publication of an untrue statement that reasonable members of the public would think damages one's reputation. That is very different from publishing lies.

I reflect on a very delicate time in the peace process when a number of lazy journalists figured out that a good way of writing headlines was to say senior members of my party were accused of being informers. Those were downright lies, and at a time when it put people's lives at risk. They could not actually take a case for defamation because, in the eyes of the law, there is no distinction between British agents in a time of conflict or legal authorities in this State or elsewhere. It is not considered to be demeaning to your character if you are accused of assisting state authorities. Lies were able to be published ad nauseam and Sunday newspapers were competing against one another to see who could accuse the highest profile Sinn Féin representative or republican of being an informer, and they could get away with it.

That is moving off point a little bit but it is not being flippant about it. It is to say that media have a big responsibility and they are not always held legally accountable. I have seen articles written that were untrue but to prove they were defamatory would be difficult. That gets to the crux of why this is different from other civil cases the Minister has spoken about. Nobody can make an adjudication as to whether in the eyes of reasonable people somebody has been defamed better than a jury of one's peers. Judges have a very important role and do a very important job but they are removed from lived realties. Due to the circumstances in which they operate and the incomes they have, they cannot be described as reflective of society as a whole. That is with no disrespect to our esteemed Judiciary. The principle of juries was established in the first place throughout the common law system. In that system today, the role of juries in many civil matters has been diminished or, in some cases, virtually abolished. However, if we are to move as the Government proposes in this area, we will be a complete outlier in respect of defamation cases and juries.

I am trying to break down the Minister's arguments against the amendment to delete this section. The first issue he mentioned was delays. Of course we want to reduce delays. Appointing and swearing in a jury takes time. There have to be opening statements and the jury then has to deliberate. However, it is disingenuous in the extreme, and I think the Minister knows it, to suggest juries are the reason for the delays in our Courts Service. I do not believe they are at all, to be quite frank. If we were to take it to the nth degree that every component of court cases that causes a delay should be taken apart, then let us just get rid of trials altogether and arbitrarily make decisions. Presenting a defence causes a delay in the Courts Service but nobody argues we should get rid of that provision in order to speed things up.

The Minister also said he had a problem with the concept of a jury making a deliberation as to whether defamation had occurred and then a judge separately making a determination in our courts, but that is precisely what happens in the criminal justice system.

Juries make a finding in relation to the guilt or innocence of an accused and then judges impose a sentence based on the sentencing guidelines. It is not something I am wedded to at this point regarding whether there would be a distinction. However, it would be a good compromise to suggest there are juries and then there is the issue of costs, given the difficulty people within the legal profession might have in terms of advising clients as to the likely outcome. This would address that difficulty.

I am not sure if there is another argument for abolishing juries other than delays and costs. I do not understand why the Government would be so determined to move in such a way. I am looking through the document that was produced by Oireachtas Library and Research Service, which I commend because it is a very good document that goes through all aspects of the pre-legislative scrutiny. I am not sure if there is a legal expert or practitioner in the legal services who supports this provision at all. Certainly, the Bar Council and the Law Library seem to have particularly strong views, and I have noted the comments of former members of the Judiciary who are very vocal. We know that during the pre-legislative scrutiny, as was said by a number of other Deputies, there was unanimous support for juries.

This Bill was a long time in the making. Clearly, it was not something on which there was immediate agreement from the Government because previous Governments had ignored it for so long. To come to a point where there was unanimity within the Oireachtas justice committee on an issue as profound as this, including from members of the Government and the Opposition, seems a fairly big statement. To revert to Minister’s original statement, he said he was bound by the programme for Government, collective government and the agreements of his predecessors. In that case, I am sure most people would have to ask what the point of this House and of having debates is. What is the point of having Committee Stage if not only is it the case that the Minister is not going to be convinced, but even if the Minister is convinced, he tells the House he will not do anything about it because his hands are tied behind his back?

I ask the Minister to reflect very strongly on this. I genuinely believe he thinks this is daft. I think it is daft. I also happen to think it is potentially dangerous to remove the voice of juries in significant defamation cases where it is, ultimately, a jury of peers who should be making the decision as to whether the very high threshold of defamation has actually been met. I want to make that case as formally as possible.

Gary Gannon (Dublin Central, Social Democrats)
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I thank the Minister for being forthright in his explanation of how his views have not so much evolved but probably remained the exact same. I took from his contribution that this is not something he believes in good conscience. He said he was bound by the principles of compromise. If I am to understand this, Fine Gael got 20.8% of the first preference vote in the last general election. I do not see the Lowry group here to defend the Minister or his Fine Gael colleagues. If we are to believe that this House is in any way the result of the will of the people, does it not worry us that one in five of the elected Members of this House are determining a very significant change in our court system to remove juries? We are removing the majority of a jury and justifying that by the principle of compromise. In and of itself, that is outlandish. Do we not have within this Chamber the principle of conscience, which should come before the principle of compromise? Otherwise, what are we doing here?

Catherine Connolly (Galway West, Independent)
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I also commend the Minister for his honesty and openness but that raises all the more questions. He is a member of a party and he has the views that he formed, based on his research and experience, that this was a bad decision, but he is now asked to leave that aside and go with what the party is telling him. That is extremely worrying, not just for this debate but for many other debates and issues, in particular regarding war, neutrality and Gaza.

Let me stick with the issue of costs because that is the one thing the Minister raised when he said the cost would be higher if we kept the juries, which are costly, lose time and so on. The Minister said: “If we abolished juries, I can guarantee the House that we will develop a whole body of jurisprudence that will result in cases being repeatedly appealed to the Court of Appeal and probably the Supreme Court.” Is that not extremely costly? Where are the costs being saved there?

I understand that every single expert who came before the justice committee said not to abolish the jurors. Different people might have made different arguments to let the juries decide on issues of fact and let the judge decide on the money, or to let the juries decide on issues of fact plus a recommendation that the judge would not have to follow that, and so on. How can we stand here as elected Members? We should look at that committee. I know Ministers will stand up and say they do not have to follow committees but it is significant that this is cross-party. There is no dissenting judgment. There is nobody saying that we should abolish the juries.

I will go back and pick up on several points. I have left the law, and defamation was not my area, so I do not speak in any legal capacity but as an elected representative who has the greatest respect for democracy. The more time I spend in the Dáil, the more respect I have for the Judiciary and the independent law profession. I was extremely critical in my time, I can tell you. There are many problems with people being excluded from the Courts Service and legal aid, on which we are awaiting a review. There are many problems with the courts and access to the courts. However, the longer I spend here, the more respect I have for the independent Bar and the solicitors, who do tremendous work, as do the judges.

That is particularly the case having spent this time and having read the reports of the Grace case, which we will get time to look at tomorrow. I see institution after institution defending itself over and over again in the many reports. We will be going into this with little time tomorrow but there have been reports such as the Dignam report and the Devine report. I mention this because at every stage, it was an acute example of the institution defending itself. That is why we need an independent Courts Service and we need the role of the juries. I see the Minister nodding and I know he agrees with this. If he is not nodding, I do not mind, but he certainly seems to be.

Let us look at what the retired judge said in this regard. This decision to change the defamation law was necessary but the decision to abolish the juries came from a report done by the Department of Justice. That Department of Justice report completely ignored the Higgins judgment, which came afterwards, but those in the Department did not go back to look at that judgment even though it came within a month of the report being published. They never had the sense to say that the problems they were looking at - the volatility of the juries and their unpredictability - had now been captured by the Supreme Court judgment, which laid down guidelines and principles. They did not go back to look at that.

The former judge also points out that the Department of Justice report looked at case law that had nothing to do with the 2009 Act but went back further to legislation from the 1960s.

While I have the time I will read from this article:

... the decision of the Supreme Court in Higgins v Irish Aviation Authority, [was] delivered one month after the publication of the report.

The judgment of the court in Higginsmarks a historic watershed in defamation law, the implications of which are directly relevant to the grounds advanced in support of [the] abolition [of juries].

The [Supreme] court not only reversed the previous practice whereby it was not permissible to give guidance to a jury on damages by reference to monetary values or previous awards ... [and so on] but has also set out categories and ranges of damages to be applied in future cases for defamation ...

The express purpose of the guidance is to ensure an award of damages that will be proportionate [This is the very thing the Minister is accusing juries of not being capable of. A former judge is outlining that the guidelines from the Supreme Court said that the guidance will ensure the award will be proportionate] to the wrong/injury suffered in the circumstances of the particular case, the first objective for which abolition is advanced as necessary ... has already [been] addressed.

The Department of Justice did not see the need to go back after the Supreme Court judgment came out. The judge goes on to state, "It is particularly significant in the context of this debate that, in reaching its decision, the Supreme Court unanimously overturned the judgment of the Court of Appeal ...", and that it was the Court of Appeal decision that the Department of Justice report looked at. It did not come back to look at the Supreme Court unanimously overturning it. He goes on to deal with the legal process and the reduction in the duration of hearings and so on, which is the other argument being advanced:

Insofar as there were delays in having jury trials in defamation cases heard, this had nothing whatsoever to do with the fact that the cases were jury actions, but rather was totally due to the lack of resources and failure to appoint a sufficient number of judges to deal with the enormous increase in court business, particularly over the last two decades.

This former judge goes on to point out that judges were appointed. He acknowledges that, but he is undermining the arguments of the Department of Justice and the Government. He further states:

With regard to the claim that the length of the litigation process [and this goes directly to the Minister] and legal costs will be reduced by abolition of jury trial, it should not be overlooked that one of the longest defamation trials in recent times was a case tried by judge alone: the trial lasted 29 days.

It is in the nature of defamation law that, in serious cases, trial duration can be protracted ... [rather] than because ... [it is] a jury [trial].

I will probably not be speaking on this again. That is why I am taking the time that I have to look at this. The grounds advanced, including cost, the volatility of juries and the lack of proportionality are groundless. They are without basis. We have a Government that is now abolishing juries on the basis of pressure. I disagree with the Minister regarding 1988 when we abolished juries in other matters. I do not agree that the same absolute pressure was brought to bear then to get rid of juries without an analysis of what improvements would follow. It is pointed out in this very succinct document that "Ireland would become an outlier among other common-law countries, where there is either an entitlement, as of right, to jury trial in defamation cases or where such trial may be ordered by a court on application, in the interests of justice."

The Minister outlined that this is the last staging post, that we do not need juries any more, and if we do not need them in other cases why would we need them in defamation cases. The former judge has also addressed that. I keep referring to that. All of his arguments have been agreed by the other entities and organisations on the ground. I am simply choosing his words because they are clear and succinct. He states:

It is repeatedly claimed by those advocating abolition that the retention of the right to trial by jury in defamation cases represents an illogical anachronism that should be swept away in circumstances [as the Minister outlined] where the right to trial by jury has already been abolished for most, if not all, other civil wrongs ... [this] claim ... is as factually incorrect as it is legally wrong.

The fundamental rights of the citizen particular to the individual guaranteed by the Constitution – specifically, the rights to liberty ... [the right] of expression, good name, bodily integrity, an ownership of property, including the inviolability of the home – are among a ... [range] of other civil rights recognised by law that may be vindicated through trial by jury.

These are all of the arguments that have been outlined to us. Having read them all, having looked at the cross-party recommendations and having listened to the Irish Council for Civil Liberties, I cannot vote for a Bill that abolishes juries based solely on pressure, without evidence, when the evidence is quite to the contrary, at a time when we need language to mean something.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Deputies for their contributions. I will try to deal with the issues they raised.

Deputy Carthy spoke about the definition of "periodical" in section 3. I am happy to give consideration to an amendment, if the Deputy tables it on Report Stage, which he has indicated he will do. At present, however, I am not fully aware of the detail of what he proposed but, as I said, I will give consideration to any amendment he puts down.

Deputy Carthy also spoke about how the media can publish lies. Generally, when it comes to defamation, people do not deliberately defame somebody. What generally occurs is a mistake is made or somebody uses incorrect language that has a meaning that goes beyond what was his or her intention, and it is a matter for the court to determine what the meaning is. Even though somebody may not have intended the language used to be defamatory, that is not sufficient. If the court believes the meaning of it is defamatory, that is sufficient. As I said previously, judges determine defamation actions every day of the week in the Circuit Court, which is where more people take cases than in the High Court.

Deputy Carthy also suggested that I said - in fairness to him this was not intentional - that juries were the reason for delay. I am not saying that juries are the reason for delay, but the presence of a jury in a case will inevitably mean that the case will take longer than if there is not a jury. That is a very clear situation.

There were many references to what was said by the Bar Council, former members of the Judiciary and the Law Society. Like Deputy Connolly, I have great respect for all three of those entities, but it is our function to legislate. I have great respect for judges, barristers and solicitors, but they are not elected. Who elected them? Nobody did. We are elected by the people. We should make our decision in the confidence that we are the people who have been elected. We should not defer all the time to people who we believe are better-informed than us.

Deputy Carthy also asked what the point was in having Committee Stage, if I am bound by the programme for Government. The point I was making is it is a central premise of the legislation we are discussing, and a significant change, that juries will be removed from High Court defamation actions. That is the point I was making in respect of the issue.

Deputy Gannon referred to what is being put forth as solely a Fine Gael proposal, but it was also in the Fianna Fáil manifesto, which I supported. It is supported by the Government. It is unfair to categorise it as coming from just one entity.

Deputy Connolly talked about conscience. Maybe my level of conscience is not as heightened as Deputy Connolly's, but I do not view the abolition of juries in the High Court in the same way as issues such as Gaza, neutrality or war should be considered. I appreciate that this is a significant change, but it is not a principle of such conscience for me that I am required to genuflect before it.

There was also reference to cost and the jurisprudence that will arise.

It probably is the case, as I said previously, that there will be more reserved judgments of the High Court when it comes to defamation than was the case when there were just juries. When you get a jury award, you do not get a written decision; the jury just give an outcome. That is why the outcomes are immediate. In most other civil actions, a High Court judge will reserve judgment and you get a written judgment subsequently. That takes a period of time. There obviously is as well a benefit in being able to see a written reserved judgement because it gives an indication of the reasons for the decision that is being made.

There was a lot reference to what I said on Second Stage. The primary point I made on Second Stage was that where most defamation happens in Ireland at present is online. People are defamed in many instances by anonymous people online on social media where heinous incorrect allegations are made about them. I identified on Second Stage that we needed to put on a statutory basis what is in effect now known as a Norwich Pharmacal order. That applies when a person who is being defamed online now has to go to the High Court to get an order for the High Court requiring the social media company to provide information to them of the account and the identity of the account holder who has defamed him or her. Fortunately, that has been included, and is one of the amendments within the Bill that we will be discussing presently. The contribution I made on Second Stage was not as limited as is put out there.

Deputy Connolly spoke about the Higgins judgment. The Higgins judgment is a clear judgment. It sets out what the rules are in respect of awards. If it is so clear, one wonders what is the necessity to have a jury if it is the case that the awards are so accurately prescribed by the Supreme Court in the Higgins judgment.

People talk about the common law world. In America, they have juries for most things. Any of the big cases in America you hear of - civil actions - go to a jury and it is a very different type of business than that which operates in the administration of justice in Ireland. Fortunately, jury trials in Ireland never became like jury trials in the United States of America, but I think it is the case, and I am open to correction on this, that juries do not determine defamation actions in the High Court in England and Wales.

I thank people for their contribution. I cannot agree to the amendment put forward by the Labour Party and I will have to seek to push section 4, which is an important part of the legislation.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I will make a brief point in response to one of the assertions of the Minister where he quite rightly says this House should not be bound to the views of any given set of experts, whether it be the Bar Council, the Law Library, former members of the Judiciary even or the pre-legislative scrutiny of a committee of these Houses. It is ultimately, of course, for the Dáil to make a determination in respect of laws, but there has to be logic to it. The question I was asking the Minister was that all of these bodies are on one side saying this is a very bad idea, the Minister is on the other side saying he is moving ahead on this basis in line with his predecessor's intention, but he has not said on what basis he is doing that. The Minister has given some arguments but, frankly, I do not think any of them stack up. Generally speaking, a Minister will find someone, some entity or stakeholder, to say they think this is a good idea. Where did this come from? Does the Minister know what the origins of this was? Perhaps that would give us a little more clarity to understand. From my perspective, this is the pivotal part of the debate. If the Minister proceeds as he indicates, we will be opposing the Bill. It is as fundamental as that.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am not looking around for entities that are supportive of this but there clearly are. Deputy Sherlock previously mentioned ISME. I suspect ISME is important but they are not the guiding people. I do not look for outside bodies to dictate to me as to what I should or should not do in the Houses of the Oireachtas. Ultimately, it was in the Fianna Fáil manifesto, it is part of the programme for Government and Members of the Oireachtas will determine it.

Verona Murphy (Wexford, Independent)
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I ask Deputies leaving the House to do so quietly and promptly. We now move to section 5, which is being opposed by Deputies Kelly, Gannon and Carthy.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The fundamental concerns with section 5 are the same as those we had with section 4. I want to record my deep disappointment that the Minister could not be moved. When Committee Stage concludes and we proceed to Report Stage, the big question will be whether we have a Bill that has cross-party support and the full endorsement of the Oireachtas or a Bill that is contentious and divisive. Sinn Féin will be opposing this section.

Gary Gannon (Dublin Central, Social Democrats)
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Similarly, the Social Democrats will oppose this section. Again, this is about the principle of having trials by jury and the word "defending". I have listened for the past hour and a half. We have read the research in the Oireachtas reports and by the various experts. Nobody has yet laid out any evidence to show why this would make the system better. I heard how it would make it cheaper, but that certainly does not mean it would be a better system. I would like to register my opposition.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will be brief. Section 5 is consequential upon what happened to section 4. We voted to retain section 4. I note the opposition of Deputies Gannon and Carthy to section 5, but the fact that section 4 has been approved by the House means that section 5 should stay. I am retaining this section.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Section 6 refers to the "harm to the reputation of the body corporate" in the context of a not-for-profit organisation. This section proposes limiting this to instances whereby publication "has caused, or is likely to cause, serious harm to the reputation of the body corporate." As I indicated earlier, there is a high standard and barrier in terms of defamation of an individual. This presents it at a much higher level for a body corporate. I refer to not-for-profit corporate bodies. The Minister will be aware that a lot of these groups do incredible and crucial work in our communities. Sports clubs, for example, can be reliant on the goodwill of their local communities for all manner of supports on a local level, in such instances where goodwill is at risk. I am concerned as to the scope of the definition of "serious harm".

I am equally concerned that an incident whereby a single defamatory statement is not adjudicated to have caused serious harm, but forms part of a series of such statements over a period by different parties. Are we to say that comparable statements only become actionable if or when they are individually the straws that break the camel's back, despite the fact that serious harm may have been caused by successive compounded statements, even by different individuals?

I have concerns about this. It seems to be an unjust approach and is potentially ripe for a lack of clarity as to what may or may not be defamatory. We have a different standard, essentially, for entities versus individuals. In terms of not-for-profit organisations at least, the current definition seems to be clearer and more practical. Will the Minister speak to the justification for the new section 12(2) inserted by section 6 and what he envisages will be the outworkings of this? I ask that in particular as I am not aware of any slew of cases from non-profits in terms of the definition. What problem are we seeking to actually solve by this? Is the Minister considering bringing forward amendments to this section on Report Stage?

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

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Again, there are potential concerns here that are perhaps not envisaged in the Bill. We need to be incredibly careful. In terms of corporate profit-making entities, on the face of it, one would think that if a company has been defamed, one would automatically see an impact on profit margins or turnover. I am sure it would not take too much imagination to consider where there could be anomalies in that. Sometimes when talking about corporate entities, we think about big corporations but a corporate entity could be a local shop. We know in these cases that reputational damage can happen over a long period. One scenario might be that someone could defame a shop in a local town by spreading malicious rumours or printing something and while the shop would lose current customers, other customers would come in because of growth in the local population and the bottom line would not necessarily be affected.

It is important to be mindful of that. As I say, I am much more concerned about the definition that is in place for not-for-profits because it is much harder then to define serious harm. For example, the Minister and I are members of political parties. Our parties of which we are members could fall under this criteria. If our parties were to be defamed, how would you prove serious harm? Would you come back after the next election and show a certain percentage drop in the vote or a lower percentage? How would you do that? That is why there is a need for a little bit of thought on this section.

The Minister will appreciate that I am new to this Bill and following it so I was not through all the permutations in the pre-legislative scrutiny but it just struck me when I read this section for the first time that there are potential issues here. I would like the Minister to give his assurance that he has considered all of those potential issues and perhaps agree to have a look at this to ensure they do not become more contentious once the Bill is enacted, if it is to be the case we move forward on that basis.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I certainly will give more detailed consideration to it in light of what the Deputy said. Dealing with the two examples the Deputy gave, the local shop in most situations, I would have thought, is not a corporate entity but is just owned by the local people. Let us assume that it is a corporate entity and they decided to run the shop under the auspices of a company. Let us say somebody suggests the shop is selling produce which is out of date. That is clearly defamatory and damaging to the reputation of that company. If it was the case, however, that that did not result in any reduction in profits or any financial loss to the corporate entity, it is hard to see what is the effect of the allegedly defamatory comment. If a company is defamed, it is reflected in the diminution of the financial strength of that company and you will be able to evidence financial loss. It is a sensible decision to make that if a company or corporate body is instituting defamation proceedings, that company should be able to establish there is financial loss sustained. In many respects, this replicates the tort of malicious falsehood, which will also continue to exist after this legislation is enacted.

The Deputy also mentioned the defaming of political parties. Although I am not absolutely sure, I suspect that political parties are not corporate entities but are registered with the Standards in Public Office Commission. Maybe things are different in Sinn Féin but I do not think Fianna Fáil is a corporate entity. I could be wrong about that. Let us think of a charitable entity that is a corporation. If someone defames that charitable entity that is a corporation, we will have to see some consequence to that. The company does not have feelings in the same way as an individual does so the company will have to be able to show some financial loss or financial consequence as a result of that allegedly defamatory publication.

As I say, I will look at it again and will give it further consideration. Obviously, if the Deputy wants to bring anything forward on Report Stage, he should feel free to do so and I will as well.

Paul Gogarty (Dublin Mid West, Independent)
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I am generally supportive of this Bill and, unlike some of my colleagues, I see the rationale in not having juries for certain types of defamation cases. However, I have a query about the corporate entity issue, which is a follow up on what other Deputies said. Let us say there is a chain of hardware stores - let us call them Fianna Fáil hardware - and it is owned by Joe Bloggs. Let us also say Fianna Fáil hardware had a couple of defective pots of paints or whatever, but because it is the only hardware store in the town where it sells, the sales do not decrease. Right-thinking members of society, however, are starting to shun and avoid Joe Bloggs who owns the hardware stores. Is it the case the owner of a hardware store has to take a personal defamation claim, even though the complaints are made against the corporate entity, which is the hardware store? Where is the dividing line?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Deputy for the contribution. In a situation like that, if an individual was very associated with a company, the individual could take an action in their own name on the basis that they have been defamed because an entity with which they are very clearly associated, and it is known to the public that they are associated, has been defamed. In that instance, an individual could take a defamation action in respect of it. It is difficult to give categoric assurances in respect of the type of example the Deputy gives, but what will remain throughout is the entitlement of an individual to take a defamation action.

If I am somebody who owns a series of companies and false statements are made about those companies which are very damaging, not just to the companies but to me, I then have an entitlement to take a defamation action because the companies, which are alleged to be involved in wrongdoing, reflect very much on me. There is not an absolute cut off point where, if it is a company being defamed, only the company can take the action. If an individual is very much associated with the company in the eyes of the public or even referred to in the publication, there are instances where that individual could take an action as well.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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One of the objectives of defamation law - it might not be stated in law - is that, at a time when there is so much mistrust about misinformation and disinformation, it should be a case that anybody who is publishing anything, particularly a professional media outlet, should not want to tell lies. The difficulty with this definition is that, for a for-profit entity, you can publish lies about it as long as it does not actually have a financial loss. There might be reasons for publishing lies or making defamatory remarks, even beyond media outlets, in the sense that while one company might not suffer a financial loss because of lies being told about it, another company might get a financial benefit from it, if the context in which that would happen can be understood.

We know that a lot of media organisations in particular, let us call a spade a spade, have been very eager to ensure it is as difficult as possible for defamation cases to be taken. Of course, they are concerned about their own corporate future and their ability to be financially viable. It is not to dismiss those concerns at all. The right to a good name can be as equally valid for an entity as it is for an individual.

We are moving to a point where, essentially, we now have three standards. We have the standard for what counts as defamation of individuals, which is a fairly high standard, in fairness. We have a standard for not-for-profit corporate entities and the definition of serious harm. I am not sure how that would be proven in that case. I could certainly see an area where that would be very contested, and I know members of the legal profession will probably be licking their lips at that prospect. We then have the third standard, which concerns for-profit entities, which is at least clear in what can be constituted in that there has to be a financial impact, but again, once there is no provable financial impact, you can essentially say what you like.

I am not opposing this section of the Bill at this stage but I am raising serious concerns. This is one of the reasons Committee Stage is better in a committee room where we are able to thrash these things back and forward. There are particular concerns about this section but the Minister has given an assurance that he will look at this as we move on with the Bill.

I encourage him to ensure that that happen and that there is a proper examination of the potential implications here.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The section relates to it being a defence to defamation to give a fair report of proceedings or judgments of courts in this State or in the North of our country. It extends this protection to the courts of any state, essentially. There is a certain practicality to this, particularly in the context of media essentially having become internationalised. I would appreciate it, however, if the Minister could speak to whether he believes that extending this to any state is practical or perhaps even fair and whether he has a fear that there is a risk that this would effectively lower the bar. Say, for example, a person fails in a defamation case that might be rightly taken in the United States. The United States has a much higher bar to get over in terms of defamation. Are we then to say that repeating those defamatory statements, which would have been considered to have been defamatory in the first place, in Ireland is to be facilitated because of that previous decision, if I am making the question clear? I appreciate what the Minister is trying to do in terms of being practical in a modern context but has he given consideration as to whether the appropriate response would effectively facilitate what may in fact be defamatory statements under Irish law because they were not found to be defamatory in another law? I would appreciate the Minister's thoughts on that.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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This section proposes an amendment to section 17 of the Defamation Act. That section sets out what is protected by the defence of absolute privilege. For instance, any statement made in this House is absolutely privileged. No matter what Deputy Carthy were to say about me, even if it were grossly defamatory, if I issued proceedings against him he would get the proceedings struck out on the basis that that was said in Dáil Éireann, where absolute privilege applies. Also, the list in section 17 includes statements made in open court by a witness or on affidavit. The purpose of the amendment is to extend that in order that it applies not only to courts established by law in the State or established under the law of Northern Ireland but also to those established under the law of any other state or place. The reason for section 17 is to give protection to people who report on what happens in areas of absolute privilege. If anybody writes about what happened here tonight, they are fully protected. Similarly, however, if they were to write about what happened in a court in the United States or produce an accurate report of a court in Afghanistan, or any country around the world, the journalist would be protected because that is a statement that was made in a court of whatever the country is. It is a fair protection for somebody who reports accurately what was said in a court established in another country. We generally have respect for court systems that operate in other countries. Even if we do not respect those courts, however, we still should be entitled to report what findings that court reached in respect of a decision that was before it, even though we do not support the state itself.

I therefore do not share Deputy Carthy's concerns. This is a reasonable protection. It is a reasonable extension of the defence of absolute privilege, and individuals should be entitled to report on and repeat what was stated in a court established under the law of any other state or place.

Verona Murphy (Wexford, Independent)
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Deputy Gannon has tabled an amendment to section 17. He is not here to move it.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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May I speak-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Maybe he is on his way.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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-----and perhaps Deputy Gannon will-----

Verona Murphy (Wexford, Independent)
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Reappear.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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-----be here later?

SLAPP suits, which is I think what this section deals with, are of course an abhorrent attempt to place fear of financial ruin particularly on ordinary people or to scare off media outlets that might have a limited budget from taking part in either public life or public discourse. They have no place in a democracy. There cannot be selective prohibition of freedom of expression simply because there is a fear of a malign actor using defamation proceedings for that purpose where defamation has not taken place but there are deep pockets or sometimes strength. It is right and entirely appropriate that we should seek to address this and prohibit that.

I do have a couple of slight concerns. I have seen definitions of SLAPPs being thrown around that are not definitions of SLAPPs. Some commentators suggest that, for example, any political representative who tries to clear his or her name through the court is engaged in a SLAPP. To suggest, for example, that a county councillor representing a south inner city area in the Minister's constituency who feels that their good name has been impinged and who goes to court is equivalent to a multibillionaire who can have any number of senior counsel bringing an organisation to court is just ludicrous. It actually undervalues just how important it is that we tackle the issue of SLAPPs. It goes back to the point I have made repeatedly. No media organisation - in fact, nobody - should tell lies, things that are not true, about others. In many respects, it is very different from everything else because the victim has to essentially prove his or her case in all these instances, and then there are others who will use the system that is there, and we know this. There have been some very high-profile cases where media outlets in this State have been afraid to publish what are facts, essentially, because they are afraid of the financial outworking of that due to powerful interventions. All these things have to be done. We have to get it right. On balance, for the most part, I think this section of the legislation does that, but I just make those points.

I see Deputy Gannon coming in now. That will allow me to finish by saying that while the Bill seeks to address the issue of defamation laws being abused to make people fearful of public participation, abuse, even in terminology or through sloganeering, will not result in balanced defamation laws. In fact, it could tip the scales too far in the other direction and perhaps make people fearful of vindicating their own name, which would be the exact opposite of what we do.

Gary Gannon (Dublin Central, Social Democrats)
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I move amendment No. 2:

In page 12, to delete all words from and including “but” in lines 13 down to and including “participation” in 14 and substitute the following: “have the effect of preventing, restricting or penalising public participation”.

I thank Deputy Carthy and others. The Bill says lawsuits must have the main purpose of stopping public participation to be considered abusive. My proposed change is that if the lawsuit "has the effect" of stopping or punishing public participation, even if that was not the original intent, it is considered abusive.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I commend Deputy Carthy on managing to talk on to allow Deputy Gannon to get time to come here. I share his objective that we ensure that better protections are provided for those who are targeted by SLAPPs. Fortunately, however, in Ireland we do not experience SLAPPs in the same way as I think other, more populous jurisdictions have experienced them in recent years.

Notwithstanding that, it is important we have in place legislation to respond to them and also it is part of our obligation to transpose the EU directive.

Deputy Gannon's first amendment seeks to substitute the term that the main purpose of the proceedings will "have the effect". He is trying to change intention to "effect". My concern is the amendment proposed would cast a net too widely and risks including claims that are brought genuinely by people in good faith to vindicate their right to a good name but may have the effect of restricting public participation. Sometimes that can happen. Simply because litigation may result in reducing public participation or engagement by the media does not necessarily mean the individual taking the claim does not have a legitimate claim. Again, it comes back to the balancing act. On the one hand we must balance the right of an individual to vindicate their good name and on the other we have to reflect the freedom of expression that exists.

The EU directive very specifically defines "... abusive court proceedings against public participation" as proceedings that "... have as their main purpose the prevention, restriction or penalisation of public participation ...". That is the reason that language has been used in the section the Deputy is seeking to amend. The Bill's definition uses almost exactly that wording. Adopting a different definition that focuses on the effect rather than the purpose risks causing legal confusion and uncertainty and may not correctly transpose the directive. Regrettably, I cannot therefore accept that amendment. The section as drafted achieves the purpose of what is within the directive. It also achieves the legislative purpose of trying to ensure there is a balance between the right of the individual to vindicate their good name and the right of an entity to publish and to publicly participate in a debate.

Verona Murphy (Wexford, Independent)
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Amendment Nos. 3 to 5, inclusive, are related and may be discussed together.

Gary Gannon (Dublin Central, Social Democrats)
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I move amendment No. 3:

In page 14, to delete lines 6 to 14 and substitute the following: “34E. (1)Where a defendant in defamation proceedings relating to his or her engagement in public participation makes an application to the court, in accordance with law, to strike out the claim as being an abusive lawsuit against public participation.”.

Verona Murphy (Wexford, Independent)
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Deputy Gannon does not wish to discuss the amendments.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I might respond formally to Deputy Gannon's amendments.

I understand the purpose of amendment No. 3 would be to delete the reference to "manifestly unfounded" contained in section 34E of the proposed Part 4A. Section 34E transposes Article 11 of the directive under which a court may strike out proceedings that have been initiated against a person on account of their engagement in public participation without proceeding to a full hearing if satisfied they are manifestly unfounded. I understand the Deputy's desire to provide protection for those targeted by abusive proceedings against public participation. However, this aim must also be balanced with the constitutional right of access to the courts. Section 34E(2) outlines an indicative list of circumstances where proceedings might be considered manifestly unfounded. For example, it includes where the endorsement or pleading or claim is "an abuse of the process of the court", which would seem to reflect the Deputy's point on abusive proceedings. The list is expressed to be non-exhaustive and is broader than that contained in the general scheme, taking account of recommendations made by the committee in its pre-legislative scrutiny report. The wide definition aims to allow the court enough flexibility to balance those rights as fairly as possible in the circumstances of each case. Deputy Gannon's amendment would substitute the current requirement for a court to be satisfied proceedings were "manifestly unfounded" with a requirement merely to be satisfied the proceedings came within the definition of abusive proceedings against public participation. I am satisfied the list provided in section 34E is sufficiently broad and appropriately reflects the requirements of the directive. I do not consider Deputy Gannon's amendment would provide any additional protections and therefore cannot accept it.

Deputy Gannon's amendment No. 4 would essentially freeze proceedings while an application for strike-out or any appeal arising from such an application is being heard or considered. That would include a prohibition on amendments to pleadings. However, in accordance with section 34E, the court, in determining such an application, is under an obligation to act as expeditiously as possible. In practical terms it is difficult to envisage what further steps in the proceedings would arise in advance of the determination of that application by the court. Further, amendment to pleadings is already a matter for the court provided for by the rules in court. I do not consider it necessary to introduce any such additional provisions specifically in relation to applications under section 34E and accordingly do not propose to accept this amendment.

There are a number of issues with Deputy Gannon's amendment No. 5. As I understand it the amendment is linked to amendment No. 3 and proposes that rather than using the "manifestly unfounded" test to strike out proceedings it should be open to a court to strike out proceedings that fit the definition of abusive proceedings against public participation, but the claimant should be allowed to defeat such a strike-out application if they satisfy the court that the claim is likely to prevail at trial and that the public interest in allowing the claim to continue outweighs the public interest in dismissing the claim. The striking out of proceedings represents a limitation on the right of access to the courts. Section 34E seeks to transpose the directive and carefully balances the rights of access to the courts and freedom of expression. Likelihood of success at trial is a matter that would be considered in any such strike-out application and it would be difficult to foresee how the circumstances envisaged by Deputy Gannon's amendment could arise in practice. I consider section 34E to provide sufficient flexibility to the court to ensure the cases that could go to full hearing are permitted to do so.

While I appreciate and recognise the intention to strengthen the protections provided in relation to section 34E by Deputy Gannon, the amendments as proposed would not achieve that objective and are inconsistent with the purpose of that section. For that reason I cannot agree to them.

Gary Gannon (Dublin Central, Social Democrats)
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I move amendment No. 4:

In page 14, between lines 30 and 31, to insert the following: “Stay of proceedings

34EA. (1) Upon an application made under section 34E by a defendant to a proceeding, no further step may be taken in the proceeding by any party until the application, including any appeal against the application, has been finally disposed of.

(2) Unless a judge orders otherwise, the claimant is not permitted to amend his or her pleadings in the proceeding—

(a) in order to prevent an order under this Act dismissing the proceeding, or

(b) if the proceeding is dismissed under the Act, in order to continue the proceeding.”.

Gary Gannon (Dublin Central, Social Democrats)
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I move amendment No. 5:

In page 15, between lines 4 and 5, to insert the following: “34FA. Where an application for declaration has been made before or during a trial of action and costs, a judge must not strike out a claim and appeal under section 34E if the claimant satisfies the judge that—

(a) the claim is likely to prevail at trial, and

(b) the harm suffered or likely to be suffered by the claimant as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in dismissing the case before trial.”.

Verona Murphy (Wexford, Independent)
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Amendments Nos. 6 to 9, inclusive, are related and may be discussed together.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 6:

In page 16, lines 10 to 12, to delete all words from and including “under” in line 10 down to and including line 12 and substitute “to which Schedule 2 refers, or”.

This group of amendments makes changes to section 18 of the Bill, which concerns alternatives to legal proceedings. Amendments Nos. 6 and 7 make minor drafting changes to sections 34I and 34J. Amendments Nos. 8 and 9 concern the insertion of a new subsection into section 34J that provides that the court may adjourn proceedings to enable compliance with certain requirements of subsection (1) relating to provision by a solicitor of an accompanying statutory declaration.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 7:

In page 16, lines 35 to 38, to delete all words from and including “(if” in line 35 down to and including line 38 and substitute “his or her compliance with subsection (1).”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 8:

In page 16, between lines 38 and 39, to insert the following: “(3) If the originating document referred to in subsection (2) is not accompanied by a statutory declaration made in accordance with that subsection, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with paragraphs (a) to (d) of subsection (1) and provide the court with such declaration or, if the solicitor has already complied with subsection (1), to provide the court with such declaration.”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 9:

In page 16, line 39, to delete “(3)” and substitute “(4)”.

Verona Murphy (Wexford, Independent)
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Amendments Nos. 10 to 13, inclusive, are related and may be discussed together by agreement.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 10:

In page 16, after line 40, to insert the following: “Effect of specified ADR procedures on limitation periods

34K. In reckoning a period of time for the purposes of any limitation period under section 11 of the Act of 1957 applicable to the bringing of a defamation action, the following periods of time shall be disregarded:

(a) where a complaint is made to the Press Council to which Schedule 2 refers, the period beginning on the date of the making of the complaint and ending on the date of the determination of the complaint (including, where applicable, its determination by the Press Council on appeal) in accordance with the procedures of the Press Council for the time being in force;

(b) where a person exercises a right of reply under section 49 of the Broadcasting Act 2009, the period beginning on the date of the making of a request for the right of reply under that section and ending on—

(i) the expiration of a period of 21 days after the date of receipt by the requester of a decision to refuse under subsection (8) or (9) of that section, or

(ii) where an application to the Compliance Committee is made under that section, the date of receipt by the person who made the application of a statement in writing of the decision of the Compliance Committee under subsection (20) of that section.”.

Amendment No. 10 seeks to ensure that applicants are not dissuaded from using alternative dispute resolution mechanisms because of concerns about the limitation period for bringing defamation actions under the Statute of Limitations. It clarifies that periods of time under which alternative dispute resolutions procedures are ongoing shall be disregarded for the purposes of the limitation period.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 11:

In page 17, line 2, to delete “34K.” and substitute “34L.”.

Amendments Nos. 11 to 13, inclusive, adjust references to reflect the inclusion of the new section 34K.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 12:

In page 17, line 29, to delete “34L.” and substitute “34M.”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 13:

In page 17, line 30, to delete “section 34K(1)(a)” and substitute “section 34L(1)(a)”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 14:

In page 18, between lines 2 and 3, to insert the following: “Circuit Court identification order

The Principal Act is amended by the insertion of the following section after section 44:

“45. (1) The Circuit Court (in this section referred to as the ‘court’) shall have jurisdiction to hear and determine an application in accordance with this section.

(2) An application shall be made by an applicant—

(a) in good faith, and

(b) on notice to the relevant intermediary service provider concerned.

(3) Upon an application, the court may, subject to subsection (4), make an order (in this section referred to as an ‘identification order’) requiring a relevant intermediary service provider to provide to the applicant such relevant information as the court may specify in the identification order where the court is satisfied that—

(a) a statement was published, or caused to be published, on an information society service by means of an intermediary service provider by a person or entity (in this section referred to as an ‘anonymous publisher’) whose identity is unknown to the applicant and whose identity is not readily ascertainable on the face of the statement or from other information available to the applicant on the information society service,

(b) a claim by the applicant in any defamation proceedings against the anonymous publisher that the statement is defamatory is likely to succeed at trial,

(c) the relevant information is necessary to enable the applicant to bring defamation proceedings against the anonymous publisher to whom the relevant information relates,

(d) the relevant information is likely to be in the possession of the relevant intermediary service provider, and

(e) the applicant has no other practicable means of obtaining the relevant information.

(4) A court may—

(a) make an identification order only where it considers that—

(i) it is in the interests of justice to do so, and

(ii) the interests favouring disclosure of relevant information outweigh those against,

having regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order, and

(b) make the order subject to such conditions as it considers appropriate, which may include, in relation to the relevant information disclosed to the applicant by the relevant intermediary service provider in accordance with that order—

(i) terms restricting the use of the relevant information so disclosed to the bringing of defamation proceedings against the anonymous publisher, and

(ii) an undertaking by the applicant not to use the relevant information so disclosed other than to bring defamation proceedings against the anonymous publisher.

(5) The court may, whether or not it has made an identification order and where it considers it appropriate to do so, order that an applicant pay any or all of the costs of the relevant intermediate service provider in relation to an application and the costs resulting from the making of any identification order.

(6) In this section—

‘application’ means an application under this section for an identification order;

‘defamation proceedings’ means—

(a) an application under section 33 for an order to prevent the publication of an alleged defamatory statement,

(b) a defamation action, or

(c) a claim for other relief under this Act in respect of an alleged defamatory statement;

‘information society service’ means a service normally provided—

(a) for remuneration,

(b) at a distance, that is to say, that the service is provided without the parties being simultaneously present,

(c) by electronic means, that is to say, that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means, and

(d) at the individual request of a recipient of services, that is to say, that the service is provided through the transmission of data on individual request;

‘intermediary service’ means one of the following information society services:

(a) a ‘mere conduit’ service, consisting of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network;

(b) a ‘caching’ service, consisting of the transmission in a communication network of information provided by a recipient of the service, involving the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients upon their request;

(c) a ‘hosting’ service, consisting of the storage of information provided by, and at the request of, a recipient of the service;

‘intermediary service provider’ means a provider of an intermediary service;

‘relevant information’, in relation to an anonymous publisher, means information as to the identity, address or other contact information of the anonymous publisher;

‘relevant intermediary service provider’ means an intermediary service provider that provides the intermediary service by means of which a statement referred to in subsection (3)(a) is published, or caused to be published, by the anonymous publisher.”.”.

I outlined on Second Stage a section I thought was missing from the Bill, which was that it contained no statutory mechanism to provide for a person to seek what is known as a Norwich Pharmacal order. Those orders are necessary in circumstances where a person has been defamed online but is not able to identify the publisher of the defamatory material. In such circumstances, at present, it is necessary for the defamed individual to go the High Court to seek a Norwich Pharmacal order that can then be served on the social media provider. After that, it can be possible for the individual who has been defamed to identify the person responsible for the publication. Amendment No. 14 seeks to address an issue many people raised. It provides that the Circuit Court will have a statutory jurisdiction to make identification orders in relation to defamation matters. Such orders, known as Norwich Pharmacal orders, are currently available through the High Court. However, obtaining them can be costly. Defamation actions can be heard in the Circuit Court but until now it lacked power to grant identification orders. This amendment has no impact on the existing powers of the High Court to grant identification orders. This amendment inserts a new section 19 into the Bill, which will insert a new section 45 into the Defamation Act 2009. The new section empowers the Circuit Court to hear and determine an application for an identification order. The applicant must make the application in good faith and note it to the relevant intermediary service provider, a term defined in the section, and is based on existing definitions in the digital services regulation. It requires an intermediary service provider to provide an applicant with information in its possession relating to the identity of an individual or entity who had posted defamatory material about the applicant online anonymously or under a pseudonym. Section 45(3) identifies requirements which the court must be satisfied have been met in order to grant the application. They include that the claim by the applicant in any defamation proceeding against the anonymous publisher is likely to succeed at trial, the relevant information necessary to bring defamation is likely in the possession of the ISP and the applicant has no other practical means of obtaining it. In addition, section 44(4) outlines the need to consider interests of justice and right and obligations of the applicant, anonymous publisher and any third parties reasonably likely to be affected by the order.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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May I speak about the amendment?

Verona Murphy (Wexford, Independent)
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You may.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I fully support this amendment. It is restrictive in terms of allowing people to go through the Circuit Court to seek the identity of those behind online anonymous publications or posts. Social media in particular is one of the great advances of our time. The right to anonymity on social media can in many ways be positive and allows people to express themselves and engage in public participation and debate in a manner they may not be in a position to do otherwise. There are those, however, who use platforms such as social media under pseudonyms or anonymous accounts, sometimes claiming to represent an entire people or entire town or place and making scurrilous untrue claims and sometimes defamatory claims. If a post makes an aggressive or untrue statement about somebody else, that person should be entitled, through the courts, to find out who it is who made that statement. My only concern is the bar set for a judge to make a determination that there needs to be a belief that the case will be won. It is almost like hearing the case beforehand. Other than that, this is a step in the right direction. Perhaps the Minister will look at the criteria. It should be easier if somebody has been abused, lied about or defamed by an anonymous account to get the identity of the person or persons behind that account.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Deputy Carthy for his contribution. This is probably the most consequential amendment we have discussed this evening. It will probably be of the most assistance to people in Ireland who are concerned and affected by defamation. As I said, the most common form of defamation in Ireland is not carried out by the media. In fact, the media are much more careful and responsible than in the vast amount of other countries. That is why the media in Ireland have such a good reputation. Perhaps it is not acknowledged that part of the reason we have such high-quality media in Ireland is because of the strict defamation laws. Where there appears to be insufficient regulation is social media use by anonymous individuals online. In fairness to the courts, they have showed themselves to perhaps be ahead of the Oireachtas. They developed a mechanism under the common law whereby individuals can apply to the High Court for the purpose of securing a Norwich Pharmacal order. It is much better that we as legislators put in place a statutory scheme, referred to as an identification order, that will enable people to get this information to bring a halt to or seek a remedy for defamatory statements made about them by anonymous individuals online.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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As that is the last section, may I identify some provisions I may bring forward on Report Stage?

Verona Murphy (Wexford, Independent)
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Yes, Minister.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I wish to indicate to the House that I intend to bring forward some further amendments, about some of which we are not yet clear as to the exact placing within the Bill. Those amendments will include an amendment to provide for clearer and simpler defence of fair and reasonable publication in the public interest, which is particularly important to protect responsible public interest journalism, a small number of additional amendments to Part 8 of the Bill in relation to alternative dispute resolution and an amendment in relation to the transposition of the remaining provisions of the anti-SLAPP directive.

In parallel to the progression of the Bill, my officials are working on the transposition of the remaining requirements of the anti-SLAPP directive. If it transpires that any of those remaining elements of the directive require transposition by way of primary legislation, that may be done by way of amendment to this Bill, given that there are already extensive transposition provisions included in Part 7. There may also be an amendment in respect of the granting of damages for harm suffered by a person targeted by SLAPP if it is believed that is necessary or appropriate. In consultation with the Courts Service we are looking at the wording of provisions relating to the publication of judgments to ensure they are operable in practice. Finally, we will seek to include transitional provisions and minor language revisions. These are the potential amendments that will be brought forward on Report Stage.

Verona Murphy (Wexford, Independent)
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When is it proposed to take Report Stage?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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That has not been set yet.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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That is not agreed.

Verona Murphy (Wexford, Independent)
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Which part, Deputy?

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The Bill.

Verona Murphy (Wexford, Independent)
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Report Stage or the Bill?

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Committee Stage is not agreed. Is that in order?

Verona Murphy (Wexford, Independent)
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There is no question on that. We are both learning, Deputy.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I just wanted to let the Minister know the strength of my feelings.

Verona Murphy (Wexford, Independent)
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Before moving to the voting block, we must await the Chief Whip who will be proposing an alteration to the Order of Business for tomorrow due to a bereavement in a Minister's family.