Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 1:

In page 5, line 17, after “Justice” to insert “, Home Affairs and Migration”.

I welcome the fact that we are doing Report Stage of the Defamation (Amendment) Bill now. This is a straightforward amendment because all it will do is reflect the change in the title of the Department and my ministerial office from the Minister for justice, to the Minister for Justice, Home Affairs and Migration. That came into operation on 5 June 2025. This amendment proposes to reflect that change.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 2:

In page 5, lines 19 and 20, to delete “of section 34C into the Principal Act” and substitute “into the Principal Act of different provisions of Part 4A of that Act effected by section 17”.

This is an amendment to section 1(2) of the Bill, which provides for the commencement of the Act. Amendment No. 2 simply clarifies that different provisions of Part 4A, which deals with transposition of the EU anti-SLAPP directive, can be commenced at different times.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 3:

In page 5, line 22, to delete the comma after “Act” and substitute the following:

“—

“cause of action”, “defamation” and “defamation action” have the same meanings as they have in the Principal Act;”.

This amendment seeks to include different references to "cause of action", "defamation" and "defamation action", which were not in the original Bill. The amendment ensures that certain terms used in the transitional provisions introduced by amendments Nos. 11 to 17, inclusive, amendments Nos. 19 to 22, inclusive, and amendment No. 37, which we will be looking at presently, are understood in line with the definitions in the Defamation Act 2009. It is a technical amendment.

Ruairí Ó Murchú (Louth, Sinn Fein)
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Tá leasú Uimh. 4 in ainmneacha na dTeachtaí Gannon agus Carthy. Amendments Nos. 4 to 9, inclusive, are related. Amendments Nos. 5 to 9, inclusive, are physical alternatives to amendment No. 4. Amendments Nos. 4 to 9, inclusive, will be discussed together.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I move amendment No. 4:

In page 6, to delete lines 18 to 35, and in page 7, to delete lines 1 to 9.

I will also speak to amendment No. 6. Amendment No. 4 is a simple but substantive amendment. We have spoken about this previously. Our principal objection to this legislation is the abolition of juries in all cases. I believe the Minister would privately accept that this is a bad, dangerous and nonsensical position to be adopting. I have not met a single person in the legal world who agrees with this move. This is one of those times when the Government has wanted to be seen to be acting as opposed to actually doing anything that will have a meaningful impact in respect of the operation of the media, the costs awarded by courts and the timeframe that these cases take.

All this will do is remove from High Court defamation cases a fundamental pillar of our legal system that is older than democracy itself in many states. Any defamation case involving anybody should have at least the option of being heard by a jury. Matters of defamation are by their very nature about the value and esteem of one's name. It is Sinn Féin's contention that the ultimate arbiters of that should be a jury of one's peers. They should be entrusted with weighing the balance of rights and harms.

We appreciate the procedural concerns and the risk of disproportionate awards but we do not feel that, as presented by the Minister and his predecessors, they are sufficient justification for curtailing the right to due process. If anything, any of the logic that was in place or could have been put in place has since been discounted. We have had the Higgins judgment, which shows there is now a formula for dealing with substantive awards. All the conventional wisdom would suggest that we will not see the types of excessive award being granted into the future.

I find it deeply regrettable. A number of Members from across the Opposition spoke at length on Committee Stage. We set out very clearly that this was, in essence, the only provision of the legislation that prevented unanimity on its passing through the House. With a bit of humility on the part of the Government by accepting that it had got this wrong, we could have had the Bill passed through the House unanimously. Virtually every other amendment apart from this one is technical in nature on Report Stage. We would have been here for a short number of minutes and got the Bill passed, and the Minister could have said that he had addressed many of the concerns that existed within our defamation laws, particularly the potential use of SLAPPs, through one of the first Bills he brought through the House and that he had the full support of the House in so doing. Instead, the Minister has done something that goes against everybody who has entered into this debate, apart from a few mega-wealthy media owners who want to just simply curtail the rights of anybody to vindicate his or her good name at all costs. The Law Society of Ireland, the Bar Council and the Oireachtas' own pre-legislative scrutiny, with its cross-party report, urged the Government not to go down this line. A previous justice spokesperson by the name of Jim O'Callaghan made a very impassioned case in this House not to go down this line, yet here we are.

I will make a final appeal to the Minister, although it appears that it will fall on deaf ears, to do what he knows is right and not proceed with this provision. The current legislative process for juries in High Court cases is sufficient, but I have gone further and moved half way. In the expectation that the Minister will whip to reject amendment No. 4, we have tabled amendment No. 6. The Minister may rule out the deletion of those sections that delete the role of citizens entirely, but let us take the process of pre-legislative scrutiny and move to an all-Ireland model on this issue. I know it is an area where the Minister shares my views in many respects. Where we can have all-Ireland harmonisation, surely that is a good thing. Why not have the same system in the North where upon application, it would allow a judge to rule that a jury may or may not be suitable for a particular case? Our amendment goes a little bit further, in that it would allow for the provision for the judge to step in on the determination of costs, one of the stated reasons for the inclusion of this provision in the legislation in the first place.

The Minister has options. He can roll back on this daft idea of eliminating juries from High Court defamation cases in its entirety and support amendment No. 4, but if he is not willing to do that, he can meet us half way by supporting amendment No. 6, which allows for the use of a jury to be determined by a judge on application. I believe that would be a sensible middle ground. It is not as far as I would like the Minister to move, but it would be a positive and welcome step if he were to accept it.

Mattie McGrath (Tipperary South, Independent)
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I believe it is a very retrograde step to remove a jury from this situation in the High Court. Juries have proven their worth in the justice system over time. The Minister had a different opinion himself when he was on the Opposition benches. I would be very concerned at what he is doing here.

We all know that defamation is very serious. I was a victim myself of it one time and it is a frightfully expensive process to engage with. For a person who is defamed by a media outlet or something like that is frighteningly expensive. My case was short and brought to a cessation statements that were untrue. I wanted nothing for myself only to clear my good name and have a donation given to a charitable cause, namely, local district hospice units. I was shocked by the cost of the case. There was no hearing. It was just a number of emails back and forward, and maybe one or two phone conversations, but it was a phenomenal bill. When I queried it, I was told that representation to challenge defamation was frightfully expensive. The legal eagles make the money. We have juries who will give of their time, so we must support them 100%. They sit in a voluntary capacity, but it is the legal eagles who get all the money. The cost should not be so prohibitive for the person who is nakedly and blatantly defamed. People should be able to have recourse. The best form of recourse to justice is having the case tried in front of one's peers in the form of a jury, with a judge presiding. That should be a basic requisite in legislation. I do not know why the Minister has changed his mind since he was the spokesperson in opposition. It is funny how people change when they move to that side the House. The system here is too powerful and maybe it does not allow Ministers to have the views they want to have. I am aware the Minister is privy to advice from the Attorney General and everything else. Nonetheless, the removal of a jury at any level is a retrograde step. People have been willing to serve and have served, except for the Special Criminal Court. In the case of civil litigation, juries are necessary and should be kept. I appeal to the Minister to accept the later amendment if he will not accept this one.

Gary Gannon (Dublin Central, Social Democrats)
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Once again, I will table an amendment today to retain juries. They are vital in defamation cases in the High Court. I want to be clear about why I think they are important. There is a lot in this Bill that deserves support, such as the anti-SLAPP measures, which are welcome and necessary. Protecting people who speak out in the public interest is a step in the right direction, but a provision in Part 3 is very serious, namely, the decision to scrap juries in defamation trials entirely. Section 4 removes the right to a jury in every future defamation case brought in the High Court - not in some cases, but in all of them. From the day this provision kicks in, that right disappears. We should not sugar-coat what that means. It is the removal of a long-standing public safeguard from the justice system.

A few weeks ago, I met the former High Court judge Bernard Barton. Mr. Justice Barton had previously come to Leinster House, sat in the audiovisual room, presented to TDs and Senators and laid out a very clear warning about the dangers of removing juries from cases. The advocacy to retain juries has come from those without an agenda. They have spent their entire working lives in the courts and have told us in no uncertain terms that removing juries is a dangerous mistake. We know that judges tend not to get involved in debates like this, so for them to step forward, write to us and come in person says something and we would be foolish not to listen.

We keep hearing the argument that jury trials cause delays or lead to unpredictable results but that is simply not true anymore. Whatever problems existed were addressed in the Higgins case where the Supreme Court laid out clear guidance on how juries should operate in defamation trials. The idea that this is still a problem does not reflect reality.

We are also told that removing juries will make the system more efficient, but there is no data to back this up. When juries were removed from personal injury cases in the UK, it did not speed anything up. In fact, some cases took longer. If delays are the issue, let us talk honestly. Ireland has one of the lowest number of judges per head of population in Europe. This is the problem, not juries.

Beyond logistics and efficiency, this comes down to something deeper, namely, public trust in the justice system. Juries are one of the last remaining ways ordinary people can actually take part in legal decisions. They bring their experience, perspective and values into the courtroom. In defamation cases, when someone's good name and reputation are on the line, this clearly matters now more than ever. The truth is that the Judiciary still does not reflect the full diversity of Irish society. That is just a fact. Until this changes, juries provide balance. They make sure that people are not judged solely by a professional class that does not always reflect the country as a whole. Jury trials in defamation cases go all the way back to Magna Carta. They still exist in the UK, the US, Canada, New Zealand and Australia. If we get rid of them here, we will not be catching up. Rather, we will be stepping outside the line of comparable legal systems.

It is pertinent to point out again that the Minister himself spoke in the past about the abolition of juries in defamation cases. I agreed with that stance at the time and I still do. Supporting this amendment, which many of us are supporting, would reflect that same principle. The Bill already brings in some reforms, including the anti-SLAPP protections, clearer defences and a more structured approach to damages. These are really good changes and will make a difference, and they should be given the chance to work. However, there is no good reason to push forward and remove juries on top of that. This is not some tiny, procedural tweak. It is a major shift in how justice is done, and once juries are gone, they are gone for good. That part of public involvement in justice will be gone, too. We will have handed over total control of these cases to a judicial system that, however skilled or fair, does not represent the public in the exact same way. We will have done it with no real justification and no evidence to support it.

I am asking the Minister and other Members to think hard about this, not just about the headlines or the briefings but about what kind of justice system we are building. This is not about speeding things up. Rather, it is about fairness, so I want to support the amendments that maintain jury trials in defamation cases and all cases. We need to keep juries and keep the people at the heart of democracy.

There is much in this Bill that is very worthwhile and there is a lot that I would like to support. However, once we push beyond the line of removing juries from cases, what is next? A trial by one's peers is a fundamental part of all democracies. Removing it is a step that goes beyond the line that most of us are willing to tolerate. I would love to support many aspects of the Bill, as it has many worthy parts. Oireachtas committees have commissioned reports and people across the political spectrum have spoken about the ideal of maintaining juries. To remove them at this point is unfair. It is unbecoming of a modern democracy. It is not in keeping with where we have developed from, going on from the Higgins case. This is something the Minister can do that would make a real difference. I understand that we have had this debate previously and I understand the position the Minister took on the programme for Government, but I also think there is a time for leadership and a scenario like this will demonstrate it.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Deputies Carthy, McGrath and Gannon for their contributions. I will start on where there is agreement in what they have said. It is correct to say that the contentious part of the legislation before the House is Part 3, which concerns the abolition of juries. I acknowledge that the colleagues who have spoken are generally supportive of the legislation, notwithstanding their opposition to Part 3. As the Deputies mentioned, we had a very thorough discussion on this issue on Committee Stage. I stand over everything I said at that time.

I will respond to a couple of points that were made by the Deputies. We are discussing amendments Nos. 5, 7, 8 and 9, which are Government amendments, and amendments Nos. 4 and 6, which are in the names of Deputies Carthy and Gannon. I propose to deal with all of those issues in my response. I will get the amendments that are not contentious out of the way.

Amendment No. 5, which I will move, amends section 4 to remove the word "the" because it appears twice. This is simply a technical issue and a typographical error. Amendments Nos. 7 and 9, which I will also move, substitute the word "instituted" with "brought" to provide consistency with the terminology used in the 2009 Act. Amendment No. 8 deletes section 5(1)(c), which removed the definition of "court" from section 26 of the 2009 Act. That is the section that deals with fair and reasonable publication on a matter of public interest. As colleagues will know, amendment No. 15 proposes a change to that. That is why amendment No. 8 is necessary.

I will now turn to the two amendments proposed by Deputies Carthy and Gannon. Amendment No. 4 proposes to remove the section that deals with the abolition of juries. Amendment No. 6 proposes to substitute a different wording so that there would be a sort of a hybrid process in which a jury could be used to determine certain aspects of a case but a judge would determine other aspects. I will make two general points in response to the issues raised by Deputies Carthy and Gannon in particular. The majority of civil cases before the courts are not determined by a jury. They are determined by a judge sitting alone. That has been a fairly constant progression. From the time of the Courts of Justice Act 1924 onwards, we have seen circumstances where all the personal injuries actions up to 1988 used to be heard by juries in the High Court. These were abolished because it prolonged the hearing of the action and it was too inefficient for the purpose of determining the increasing number of personal injuries actions. The latter argument does not apply here, but the former does in terms of trying to speed up the process.

Very many defamation cases are heard on a daily basis without a jury. In the Circuit Court, damages of up to €75,000 can be awarded, which is a considerable sum of money for damage to reputation. Anyone who takes an action in the Circuit Court does not have a right to a jury. A defamation case in this court is heard by a judge, sitting alone, and individuals get justice there. Similarly in the High Court, many defamation cases are heard without a jury. This can happen if somebody brings forward a claim for defamation and, say, a claim for breach of privacy. The latter claim cannot be determined by a jury and, consequently, many plaintiffs opt to have a High Court judge, sitting on his or her own, determine the action. Any experiences I have had of judges on their own hearing defamation cases have indicated to me that there is not some lesser form of justice. There is no lesser vindication of the rights of the individual when a case is being heard by a judge sitting alone.

I note the points made by Deputy Gannon that sometimes judges come from a certain perspective in society and that juries bring a broader assessment. The purpose of juries is to ensure that they will deal with questions of pure fact in respect of issues that are before the court. This has happened in respect of defamation actions. However, anyone who has ever attended a defamation action will be aware that there are many occasions when the jury has to rise and leave the room so that the questions of law can be dealt by the judge, sitting alone. It is fairly clear that a defamation case heard by a judge sitting alone will be faster than a defamation case heard by a judge and a jury sitting together. This is a matter of common sense. I am also not fearful that it will result in miscarriages of justice or individuals being deprived of the opportunity to vindicate their good name.

I will now deal with amendment No. 6 in more detail. This is being put forward by Deputies Carthy and Gannon. If amendment No. 6 was accepted, it would divide roles between a judge and jury in cases that may involve substantial damages. It is noteworthy that the term is not defined in the proposed amendment. In those cases, juries would have a role in the determination of questions of fact, but would have no role in respect of the assessment of damages. As I noted on Committee Stage, it would be inappropriate to divide functions between a jury and a judge.

Deputy Carthy made the point on the previous occasion - I listened carefully to it - that it happened in criminal proceedings, where a jury determined guilt or innocence and the court then imposed a sentence. In a criminal prosecution, it is not feasible to suggest that, at the end of a determination of guilt, the jury would then proceed to set the sentence. The reason we do not do that is because of the necessity of ensuring consistency in the types of sentence imposed on individuals convicted of similar offences. Similarly, the objective here is to achieve some form of consistency in the damages awarded.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I do not know if the Minister realises, but he has undershot the entire premise and logic put forward for this Part. If I am right, he dismissed the costs that might be incurred but he said there might be an impact on the time. I would argue that the time saved would be minuscule. The Minister seems to accept that we are now in a situation following the Higgins case where there is a parameter and that is being adhered to by the courts and by juries. We had a very high-profile case involving the former president of my party and awards were given precisely in line with the standards that have now been set.

The Minister has not addressed something that arose in conversations, private and otherwise, with legal professionals, including judges. Has he considered that what will happen as a result of this move is an increase in the length of time and the costs because the likelihood of appeals will be substantially higher? The reason for that is because people are less likely to appeal a jury verdict because they know that higher courts are very reticent to overturn a jury decision. Very particular points of law must be made in that respect. They are not as reticent about overturning a decision of one of their colleagues in the Judiciary. That is a matter of fact.

My estimation is that, far from the stated rationale he presents, this Part will do the exact opposite because we will see increased pressure on the overall court system.

Gary Gannon (Dublin Central, Social Democrats)
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I listened intently to the Minister's contribution in response to the points made by the speaker to my left, Deputy Carthy, and the speaker behind me, Deputy Mattie McGrath, but I did not hear him refer to what happened following the Higgins case. I have a simple question: why is he proceeding with the abolition when the law on which the proposal is based has subsequently been swept away by the Supreme Court in the Higgins case and replaced with guidelines on damages, which we clearly know are working? There have been genuine improvements. There has also been a Court of Appeal case based on the Supreme Court judgment in the Higgins case. To be honest, I do not get a sense that the Minister is committed to this change himself.

The Minister has referred to the fact that juries are often asked to leave the courtroom for discussion to take place on a point of law. Nobody is seeking to change that. There are often contested points of law and it is fine for them to be discussed between the legal teams and the judge. Juries can still leave on those grounds, but where it matters is when it comes to a judgment by a jury of one's peers. Could the Minister speak to the determination of the Supreme Court on the Higgins case? How has that not impacted on his own assessment?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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First, I will deal with Deputy Carthy's point about time or costs. The point I make is that if a case takes longer, it will cost more. Individuals will have to pay more for a case if it goes for six days rather than four days. The two extra days will add extra cost to it.

Both colleagues referred to the Higgins decision. It was an important Supreme Court decision that set out the bands that should be awarded for defamation awards. The Higgins decision will still apply whether there is a jury or not. When it comes to the award of damages, a High Court judge sitting on his or her own, hearing a defamation action today, must apply the parameters of the Higgins judgment. The benefit of the Higgins case is not going to be lost, but it is not the sole reason for the abolition of juries. The main reason advanced is in order to ensure that the process is expedited, resulting in a reduction in costs.

Deputy Carthy referred to the fact that there would probably be more appeals. He is correct that a jury determination is generally more sacrosanct and hard to overturn than the finding of a judge. One of the deficiencies that exists in respect of the area of defamation that will be improved should it be determined by judges is that we do not have any reported first-instance decisions on defamation cases in the High Court. We seldom get that because what happens here, as happened in the case of the former leader of Deputy Carthy's party, is that we just get a result from a jury that the plaintiff succeeds and the damages are a sum of money. Whereas if we have a decision of a judge, we get an explanation as to why the plaintiff was defamed, the defences that were put forward and why they have or have not succeeded, and a justification for the award of damages coming within the Higgins parameters.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I feel the Minister is chasing his tail trying to find reasons to support this provision when he knows in his own heart, and with his own legal experience, that there is no credible reason to do it. This was a move on the part of a predecessor of his, predominantly pressed by large-scale media outlets and owners, to address one particular issue and then a number of other issues were thrown in, including the abolition of juries. When the abolition of juries was put forward, it was a surprise to a lot of people, including the Oireachtas committee that was dealing with it. The entire logic that was presented by the Minister's predecessor and the Department was down to the cost of awards. That is the reason that was provided and that reason has now been put in the dustbin. The Minister has acknowledged that through the Higgins judgment. When there is a rationale for a law – not that I ever agreed with it, but I ask the Minister to bear with me - but that rationale clearly stops existing, does he not agree that it amounts simply to pigheadedness to pursue the law regardless, without any consideration of the consequences? I do not want to put words in his mouth, but if I am correct, the Minister is on the record as saying his mind has been changed on this. Previously, we know that he was very cautious and warned these Houses about abolishing juries in this instance. Now, he is advocating the exact opposite of that.

How would the Minister feel if, upon further reflection in a number of years' time when he is out of office, he realises he made a real mistake and undermined the judicial system? I ask him to reflect on that.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 5:

In page 6, line 21, to delete “the”.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I move amendment No. 6:

In page 6, lines 22 to 24, to delete all words from and including “a” in line 22 down to and including line 24 and substitute the following: “the court may, on the application of any party to a defamation action in the High Court, or a question of fact or an issue arising in such an action, order that the action or any issue of fact in the action shall be tried without a jury if it is of opinion that such trial—

(a) will require any protracted examination of documents or accounts or any technical, scientific or local investigation which cannot conveniently be made with a jury,

(b) is for any special reason (to be mentioned in the order) unsuitable to be tried with a jury.

(2) The court may, on the application of any party to a defamation action in the High Court, order that in matters which may involve substantial damages— (a) issues of fact shall be tried with a jury, and

(b) the quantum of any damages which may arise be adjudicated by the presiding judge.”.

Verona Murphy (Wexford, Independent)
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It will be at least 10 p.m. before we reach the voting block. We do not know how many more votes there will be in between.

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

In page 6, line 25, to delete “instituted” and substitute “brought”.

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

In page 6, to delete line 32.

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

In page 7, line 9, to delete “instituted” and substitute “brought”.

Verona Murphy (Wexford, Independent)
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Amendments Nos. 10 to 14, inclusive, 17 to 22, inclusive, and 37 are related and will be discussed together.

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

In page 7, line 19, after “corporate” to insert “that is made on or after the date of the coming into operation of section 6 of the Defamation (Amendment) Act 2025”.

This group consists of the transitional provisions included throughout the Bill. Before I address those amendments, since we are on section 8, I will refer to the section. It deals with the provision of a new defence for retailers in circumstances where they are accused of defamation by persons who allege they were defamed by the retailer because they were stopped to check whether they had paid for goods or services. This provision, which is contained in section 8, remains completely intact from the time it was introduced by my predecessor, the Minister, Deputy McEntee, on 2 August last year. The reason I make that point is there has been some ill-informed and very inaccurate commentary suggesting I have in some respect changed or amended section 8. That is completely incorrect. It remains exactly the same.

This is a vigorous and very powerful defence I hope retailers will use. The reason the Oireachtas is unanimously giving them this power is to ensure they are not subjected to unnecessary defamation actions. However, if they do not avail of the statutory provision we are giving them, they cannot subsequently complain about the fact that it is insufficient. It is a very sufficient and powerful protection and they should avail of it. Any commentary to the contrary, suggesting I have in some way changed or amended it from the way it was introduced, is simply false.

Amendment No. 10 provides that the serious harm test introduced for bodies corporate by section 6 will apply with respect to statements made about bodies corporate from the date of the commencement of section 6.

Amendments Nos. 11 to 14, inclusive, 17 and 37 concern the new and updated defence provided for in the current sections 7 to 11, inclusive, and section 20. The amendments provide that the defences will apply to causes of action which accrue on or after the date those defences come into operation. For example, the defence of live broadcasting introduced by the current section 11 will come into operation for broadcasts made after that section commences.

Amendments Nos. 17 to 22, inclusive, relate to procedural changes provided for in the current sections 12 to 16, inclusive. The amendments made by these sections come into effect only in respect of proceedings brought on or after the date those sections come into force. For example, section 16 provides for certain requirements regarding the making of correction orders. Those requirements will apply to defamation actions brought after that section is commenced.

Clearly, this group of amendments comprises transitional provisions. They all provide the same with regard to providing that the defences only come into operation after the commencement of the legislation.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I will make a couple of points. On the retail defamation, as it is called, and section 8, as I have indicated before, it is incredibly important that we have this defence. It is equally important that this defence is not abused. There is clearly a communication issue. I met a retailer in the House today, a member of a representative organisation, who expressed real concerns that this section will not actually do what the Oireachtas wants it to do. Prior to Committee Stage in the Seanad, perhaps the Minister would be willing to engage with representative organisations to clarify this or to get a sense of whether there is a need for further clarity within the section.

I did not move any amendments with regard to the so-called corporate provisions and the test that is to be incorporated. I think this will be the first section of the legislation that could very well result in a return of the Dáil to amend this legislation further. As I mentioned on Committee Stage, there is real potential to have what might be described as corporate entities - they could be charitable organisations, as I said in the debate, or they could be political parties - that could suffer from malicious articles or publications and while they might not meet that test, the damage could be very real. I reiterate that I have a concern in that respect. Nevertheless, we will not oppose any of the amendments in this section.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will reply to the point Deputy Carthy made about section 8. It got some publicity as well around the fact that it was suggested I had deliberately changed the provisions of section 8 to suit myself, or for some purpose that was not in the public interest. As Deputy Carthy knows, that is not correct because he was here on 2 August last year when the Bill was introduced and there has been no change to section 8 since then.

I am happy to sit down with retailers. This is a very powerful defence but like any defence, it has to be used.

There is no point in the Oireachtas drafting defences, putting them into legislation and enacting them if people for whose benefit they have been enacted decide not to use them and take the easy option out by saying they have been advised that they should just pay over €5,000 to see off a claim. They should fight claims. Part of the reason claims are encouraged is when a tendency develops not to contest claims. If people contest claims that are not valid, then the message will go out to litigants that there is no point in taking those claims because defendants have the statutory power to stand up to them. People need to avail of the statutory power that, ultimately, we are going to give them. I am happy to discuss it with any retailers.

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

In page 8, between lines 4 and 5, to insert the following:

“(2) The amendment effected by paragraph (a) of subsection (1) shall apply only to causes of action accruing on or after the date of the coming into operation of this section.”.

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

In page 8, between lines 31 and 32, to insert the following:

“(2) The amendments effected by subsection (1) shall apply only to causes of action accruing on or after the date of the coming into operation of this section.”.

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

In page 9, between lines 3 and 4, to insert the following:

“(2) The amendment effected by subsection (1) shall apply only to causes of action accruing on or after the date of the coming into operation of this section.”.

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

In page 9, between lines 18 and 19, to insert the following:

“(2) The amendment effected by subsection (1) shall apply only to causes of action accruing on or after the date of the coming into operation of this section.”.

Verona Murphy (Wexford, Independent)
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Amendments Nos. 15 and 16 are related and will be discussed together.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 15:

In page 9, between lines 18 and 19, to insert the following:

“Defence of publication on matter of public interest

11. (1) The Principal Act is amended by the substitution of the following section for

section 26:

“Publication on matter of public interest

26. (1) It shall be a defence (to be known as the ‘defence of publication on a matter of public interest’) to a defamation action for the defendant to prove that, in all the circumstances of the case—

(a) the statement in respect of which the action was brought was on a matter of public interest,

(b) the defendant reasonably believed that publishing the statement was in the public interest, and

(c) the statement was published in good faith.

(2) Subject to subsection (3), a court shall, for the purposes of determining whether subsection (1)(b) is proved, have regard to whether the belief was arrived at after the making of such enquiries

and checks as it was reasonable to expect of the defendant.

(3) Where the statement in respect of which the defamation action was brought was an accurate and impartial account of a dispute to which the plaintiff in the defamation action was a party, the court shall, in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, disregard any omission of the defendant to take steps to verify the truth of the

imputation conveyed by it.”.

(2) The amendment effected by subsection (1) shall apply only to causes of action accruing on or after the date of the coming into operation of this section.”.

As colleagues will be aware from Report Stage amendments, what is being proposed here is that we will amend section 26 of the Defamation Act by providing for a much simpler and concise defence of publication on a matter of public interest. Colleagues may be aware that since the 2009 Act was enacted and came into force on 1 January 2010 there was a statutory defence in line with what was referred to under the common law as a Reynolds-type defence. Section 26 gave effect to that and the whole purpose of that section when it was enacted in 2009 was to provide a statutory defence for what we can refer to as responsible journalism. That would operate in circumstances where a journalist or a publisher made a factual error in the publication that was broadcast or published in a newspaper or online, but the factual error would not expose them to a claim in defamation because it was a reasonable publication on a matter of public interest.

Since that legislation has come to be enacted section 26 has been pleaded on many occasions but there are very few judgments or, indeed, decisions of juries where section 26 has been successfully invoked. Understandably, persons who seek to rely upon this statutory defence are thereby concerned that there is not a sufficient understanding of the section on the part of judges or juries, or it is not effective enough for the purpose of availing of what was previously a statutory defence.

What this amendment is seeking to do is to try to simplify it. As I said, section 26 was intended to facilitate public discussion on matters of public interest. This facilitation of public discussion is in line with Ireland's obligations under Article 10 of the European Convention on Human Rights, ECHR, and it plays a vital role in safeguarding democracy. However, feedback received from stakeholders was that the existing section is overly complex, lacking in clarity and sets too high a hurdle. Particular concern was expressed in relation to the onerous checklist in section 26(2) which provides for ten factors which the court may take into account when determining whether publication of the statement was fair and reasonable.

Section 11, therefore, puts forward a simplified defence which seeks to facilitate public debate in the public interest while safeguarding the right to a good name. The new defence requires a defendant to demonstrate first that the statement was in the public interest, second, that they reasonably believed publishing the statement was in the public interest and, third, that the statement was published in good faith. When considering whether a defendant reasonably believed publication to be in the public interest, the court must take into account whether the belief was arrived at after the making of such inquiries and checks as it was reasonable to expect of the defendant.

If the statement in question consists of an accurate and impartial account of a dispute to which the plaintiff and the defamation action was a party, the defendant is not required to demonstrate that they took steps to verify the truth of the imputation conveyed by it in order to demonstrate reasonable belief that publication of the statement was in the public interest. This provision recognises that in some instances there is a public interest in the neutral reporting of allegations in circumstances where it is clear that the publisher is not standing behind those allegations. In other words, it may sometimes be in the public interest to know that an allegation has been made in respect of an individual before that allegation can be investigated.

However, that does not give a freeway to individuals to say they are just publishing an allegation that has been made elsewhere. It has to be in the public interest and there has to be a certain reasonable belief that the publication was in the public interest and there also needs to be a recognition that there is a responsibility on the publisher to take reasonable steps to inquire into the veracity of the statement.

Amendment No. 16 adds a new section 26A to the Bill. This provision abolishes any defence which may have existed at common law on the basis of the decision in Reynolds against Times Newspapers Limited in which the United Kingdom House of Lords in its judicial capacity recognised the existence of a defence for responsible public interest journalism. The purpose of section 26A is, therefore, to make it clear that where a claim for defamation arises after its commencement, any defence on the basis that the publication is in the public interest should be based on the newly inserted section 26 only. This avoids any confusion or duplication with pre-existing defences.

The purpose of these amendments is to ensure that there is a more concise, comprehensible and usable defence of reasonable publication on the matter of public interest. In the second amendment I just discussed, it seeks to make it known that any other type of Reynolds-type common law defence has been abolished.

There is some uncertainty at present as to whether or not the Reynolds common law defence still exists at common law. My own view is that it has been abolished by the enactment of section 26 but certainly the courts will take a decision. Mr. Justice Collins in the Court of Appeal has recognised that there is some uncertainty about that issue. If it is the case that we are going to enact a statutory defence of fair and reasonable publication, what we do not want to happen is that there is going to be a parallel and corresponding common law defence emanating back to the Reynolds decision. The Reynolds decision was a very interesting decision, in that it recognised for the first time that you could have a public interest defence in respect of publication to the world at large. Prior to that it was very much a qualified interest defence that was based upon duty and interest of individuals. An individual had a duty to confer information and another individual had an interest in receiving it. They tried to apply that to publications to the world at large because they recognised the importance of trying to defend responsible journalism that was in the public interest but which may have been inaccurate in one factual respect.

In order to deal with that they had Reynolds in England for many years. We then adopted Reynolds here even before the enactment of the 2009 legislation, the Blom-Cooper decision here recognised that Reynolds operated here. However, the net effect for it is that once we enacted section 26, it is fair to assume everyone thought that the Reynolds defence had ceased to exist. There is, as I said, uncertainty as about it. This legislation and this latter amendment will ensure there is no parallel common law defence alongside the new section on reasonable publication in the matter of public interest.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I thank the Minister for his remarks. Most people will welcome the clarification that these amendments bring. However, we need to be very clear as a House in terms of setting out precisely the need for this, if you want simplification of the defence of public interest. My position on this matter is fairly straightforward: media organisations or anybody who is publishing information pertaining to individuals and entities should not tell lies about them. They should not publish things that are not true.

If they do, then people have a right to vindicate their good name through the courts, I would argue, adjudicated by a jury of their peers. I absolutely agree with the provisions in this Bill. If people maliciously use the court system to intimidate people from speaking truth to power, so-called strategic lawsuits against public participation, SLAPP, it is absolutely right that they would be held to account. That is why we will be supporting the provisions in that regard.

I also think we should reflect on the reason the public interest defence has not been used or cited too often. Usually if there is a very strong argument for a public interest defence, the case would not come to trial in the first place. As I mentioned previously, I have a concern around the narrative of this whole issue. The Minister acknowledged on Committee Stage that Ireland does not have a big issue with SLAPP. We have had an issue in the past in respect of high awards. The awards were substantially too high. This sense that newspapers or other media organisations are living in fear because of defamation laws has been exaggerated. I do not think that the media sector does itself many favours. I cited earlier the recent Adams case in the High Court. Clearly, what was published and broadcast about Gerry Adams was not true. Anybody could see it was not true and was highly defamatory, yet it went to the High Court at obscene cost to the BBC, a public body. Immediately afterwards, the loser in the case, the BBC, doubled down on what in my view was an unsustainable position. Other media organisations and representatives talked about a chilling effect. I will put on the record that there should be a chilling effect on media outlets to stop them publishing things about people that are not true. If that is the case and it is one of the reasons the public interest defence has not been used regularly, so be it.

Everybody acknowledges that every organisation and person can make mistakes for the right reasons. That is why this particular section of the Bill is important. There should be no get-out-of-jail-free card for people who cite the public interest but are really on witch-hunts or following their own agendas, whether political, personal or financial. We need to be very clear in that respect.

It is always a bit archaic to consider that a decision of the British House of Lords became de facto common law that is applicable in Ireland. As I say, I welcome the clarification of that issue in this legislation.

Above all, we need to be clear that truth matters, particularly in the modern world. There is now a broad array of broadcasting vehicles, including anonymous Facebook pages, personal TikTok accounts and multibillion euro media enterprises. There is an obligation that if you are publishing something to the world at large, you make due effort to ensure you are publishing the truth and facts, and are not demeaning somebody's good name or character.

In all of this debate, we must acknowledge why defamation laws exist in the first place. It is a legitimate reason. It provides the balance between free speech and the right of a person to vindicate his or her good name. There is also the public interest provision that needs to be there and that is why I will not be opposing these amendments.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will be brief in response. I note what Deputy Carthy said about the provenance of the Reynolds defence, which emanated from the British House of Lords. I am not trying to open up old wounds, but the jury system came from the British system of justice that operated in Ireland. I will not go back on that.

Deputy Carthy said that people should not tell lies. Everyone agrees with that. However, most defamation actions do not involve a defendant who has deliberately told lies. Most defamation actions that arise are as a result of an error that has been made. The whole purpose of the legislation we are introducing here, the new statutory provision, is to recognise that there are circumstances where, for responsible journalism, broadcasters or newspapers could be doing a story that is very much in the public interest, whether it is about exposing wrongdoing in nursing homes, crèches or politics, and could have taken responsible steps to ensure the story is in the public interest and has been investigated. However, there may be a factual error within the story. The error may be that the story identifies me as opposed to, say, the Leas-Cheann Comhairle. Does that minor error mean they have no protection?

The purpose of what was originally the Reynolds-type defence, what now is in section 26 and what is going to be proposed in this new provision, was to recognise that there will be occasions when a responsible journalist may have made a mistake in one or two details but because the general story was in the public interest and because the journalist had gone out of the way to verify the truth of what he or she published, and that he or she sought a response from the individual who subsequently becomes the plaintiff, all those factors taken into account can, in certain circumstances, give them a form of defence. However, this defence only kicks in where there is a mistake. It is not always the case, but sometimes can be, particularly online where most defamation happens now, that in an orthodox defamation action against a media defendant, the media has gone of their way deliberately to tell lies. My experience is that does not happen. Mistakes happen, and in certain instances where there has been public interest journalism and the media have abided by certain ground rules, they should be able to avail of a defence. It is up to the court to determine whether they get it, but they should be entitled to avail of it.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I do not argue with the Minister about any of that and that is why we are not opposing this section. I will make one point. The Minister suggested that the media never go out of their way to lie about someone. Can I suggest that he is saying that with the luxury of being a Fianna Fáil representative? If he were a representative of my party, he would not be able to say that. There have been instances where media outlets have published downright lies about my party. They have done so knowing they were lies. No defamation case was possible because it was the entity of Sinn Féin, rather than individual members, that was defamed. So be it. I will defend to the last the right of the media to do their job of holding power to account. I accept there will always be instances where genuine mistakes are made. I do not in believe in penalising a media organisation or an individual journalist when mistakes have been made, provided that they have made every effort to ensure the truth was the basis of the information that was published.

We are agreeing on the outcome, but perhaps the Minister and I are coming at this with different experiences. As he rightly said, and this is important when we deal with all of this, the real threat to people's good character is not coming from a daily broadsheet or the evening news anymore. It is coming from anonymous actors who have, in many cases, malicious intent. They are publishing material that can be published much more widely than any traditional media could, and much faster. It is important when we are discussing these matters to be conscious of all of that.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 16:

In page 9, between lines 18 and 19, to insert the following:

"Abolition of Reynolds defence

12. The Principal Act is amended by the insertion of the following section after section 26: “Abolition of Reynolds defence

26A. (1) Any common law defence known as the Reynolds defence that, immediately before the commencement of section 12 of the Defamation (Amendment) Act 2025, could have been pleaded as a defence in a defamation action is abolished.

(2) Subsection (1) shall not apply to causes of action accruing before the date of the coming into operation of section 12 of the Defamation (Amendment) Act 2025.".".

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 17:

In page 10, after line 37, to insert the following: "(2) The amendment effected by subsection (1) shall apply only to causes of action accruing on or after the date of the coming into operation of this section.".

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 18:

In page 11, between lines 8 and 9, to insert the following: "(2) The amendments effected by subsection (1) shall apply only to applications under section 28 of the Principal Act made on or after the date of the coming into operation of this section.".

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 19:

In page 11, between lines 11 and 12, to insert the following:

“(2) The amendment effected by subsection (1) shall apply only to actions for damages for defamation brought on or after the date of the coming into operation of this section.”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 20:

In page 11, between lines 25 and 26, to insert the following:

“(2) The amendments effected by subsection (1) shall apply only to defamation actions brought on or after the date of the coming into operation of this section.”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 21:

In page 11, between lines 28 and 29, to insert the following:

“(2) The amendment effected by subsection (1) shall apply only⁠—

(a) in a case where a defamation action has been brought, where the defamation action is brought on or after the date of the coming into operation of this section, or

(b) in a case where a defamation action has not been brought, to an application under section 33 of the Principal Act made to the High Court on or after the date of the coming into operation of this section.”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 22:

In page 11, after line 32, to insert the following:

“(2) The amendment effected by subsection (1) shall apply only to defamation actions brought on or after the date of the coming into operation of this section.”.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Amendments Nos. 23 and 24 are out of order.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Amendment No. 25 arises out of committee proceedings. Amendments Nos. 25 to 33, inclusive, are related and will be discussed together. Amendments Nos. 28 to 33, inclusive, are consequential on No. 25.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 25:

In page 15, between lines 23 and 24, to insert the following: “Order for damages in case of section 34F or 34G declaration

34H.(1) Where⁠—

(a) the court makes a declaration under section 34F or 34G that the defamation proceedings concerned or part thereof amount to abusive court proceedings against public participation (in this section referred to as the ‘declaration’), and

(b) the defendant in those proceedings (in this section referred to as the ‘defendant’) makes an application to the court, whether before or after the making of the declaration, on notice to the plaintiff in those proceedings (in this section referred to as the ‘plaintiff’), for an order for the payment of damages by the plaintiff to the defendant under this section, the court may, in addition to the making of the declaration and in its absolute discretion, order the plaintiff to pay damages to the defendant as a result of injury, loss or damage suffered by the defendant consequent upon the bringing of the proceedings or part thereof the subject of the declaration.

(2) In deciding whether to make an order under subsection (1), and, where applicable, in determining the amount of any damages to be paid, the court shall have regard to all of the circumstances of the case and the interests of justice, and may take into account the following matters as it considers appropriate:

(a) the nature of the public participation concerned;

(b) the purpose or purposes for which the defamation proceedings or part thereof the subject of the declaration (in this subsection referred to as the ‘proceedings’) were brought relating to the defendant’s engagement in public participation;

(c) the conduct of the proceedings;

(d) any other factors leading to the making of the declaration;

(e) whether the declaration has been made under section 34F or 34G;

(f) whether the declaration relates to all or part of the proceedings;

(g) the injury, loss or damage suffered by the defendant as a result of the bringing of the proceedings (including, where appropriate, the threat of such proceedings) and any mitigating factors.

(3) Where an application for an order for the payment of damages is made under subsection (1)(b)⁠—

(a) the plaintiff and the defendant may make submissions to the court and adduce evidence, and

(b) the court may direct that evidence be given,

in relation to the application.

(4) Where the court makes an order for the payment of damages to a defendant under this section, the court may, if it considers it appropriate to do so, apply the provisions of section 34F(2) or 34G(2), as the case may be, to costs incurred as a result of an application made by the defendant under subsection (1)(b).

(5) The damages recoverable under this section in the Circuit Court shall not exceed the amount standing prescribed, for the time being by law, as the higher of any limit of that Court’s jurisdiction in tort.

(6) The Personal Injuries Assessment Board Act 2003 shall not apply in relation to an application under subsection (1)(b).

(7) This section shall not affect the operation of sections 31 and 32.”.

Amendment No. 25 introduces a new section, 34H, into Part 7 of the Bill. Section 34H empowers a court to award damages to those who have been subject to abuse of court proceedings against public participation. This transposes Article 15 of the anti-SLAPP directive, which requires member states to make provision for effective, proportionate and dissuasive penalties or other equally effective appropriate measures, including the payment of compensation for damages or the publication of the court decision on the party that brought the SLAPP proceedings. Section 34H provides that damages may be awarded only where a court has declared the proceedings in question to be abuse of court proceedings against public participation under section 34F or section 34G of the Act.

In determining the amount of damages to be awarded, the court must have regard to the circumstances of the case and the factors set out in section 34H(2). These include the injury, loss or damage suffered by the target of the proceedings as a result not only of the bringing of the proceedings but also, where appropriate, the threat of those proceedings. This recognises that the purpose of SLAPP proceedings is not to gain access to justice or to genuinely exercise a right, but rather to intimidate those engaging in public participation, creating a chilling effect on public debate.

The court must also consider the conduct of the parties, the purposes for which the proceedings were brought, the factors leading to the making of the declaration and any mitigating factors. The court may seek evidence before making a determination as to damages and the parties may make submissions to the court on the issue. This is a significant provision that recognises the impact of SLAPPs, including psychological and financial impacts. It provides a remedy to compensate victims of SLAPPs for harm suffered and adds significant weight to the existing safeguards contained in Part 4A of the Bill. It also strikes an appropriate balance between the right to public participation and the right of access to the courts. It does this, first, by providing that damages are only available where a declaration has been made by the court that the proceedings are abusive and, second, by directing the court to take into account, among other things, any mitigating factors and the purpose for which the proceedings were brought, when considering the amount of damages to be awarded.

Amendment No. 26 replaces the previous section 34H, which provided for the publication of judgments and orders of the Circuit Court. The purpose of providing for the publication of judgments and orders in SLAPP cases, as set out in the anti-SLAPP directive, is twofold. On the one hand, it acts as a deterrent to the bringing of such proceedings while, on the other hand, it provides a source of learning and awareness in relation to SLAPP cases. With those objectives in mind, this amendment seeks to expand the requirement to publish SLAPP judgments beyond the Circuit Court to any court that makes a finding that proceedings are abusive proceedings against public participation in a defamation action.

Additionally, it clarifies that the requirement is to publish written judgments, and, where there is no judgment, to publish the relevant court order. This is a very appropriate provision contained in amendment No. 26 and consideration should be given to using it outside the area of SLAPPs. It is something I am considering in other areas as well.

Amendment No. 27 provides that the provisions of Part 4A of the Defamation Act 2009 relating to SLAPPs will only apply to defamation proceedings brought on or after the date on which those provisions come into operation. Amendments Nos. 28 to 33, inclusive, renumber provisions, which is necessary following the insertion of several new sections by the amendments proposed today. Amendment No. 29 removes reference to the fact that the current provisions of section 34J are without prejudice to the Mediation Act 2017.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I support these amendments.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 26:

In page 15, to delete lines 24 to 30 and substitute the following: “Publication of certain judgments and court orders

34I. Where a court finds in the course of defamation proceedings that the proceedings are abusive court proceedings against public participation, the court shall direct that any written judgment of the court or, in the absence of a written judgment of the court, any order of the court, related to that finding, shall be published on the website of the Courts Service where practicable and as soon as so practicable.”.”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 27:

In page 15, between lines 30 and 31, to insert the following: “Transitional provisions relating to provisions of Part 4A of Principal Act

18. Where a provision of Part 4A of the Principal Act comes into operation on a particular date, it shall do so only in relation to defamation proceedings (within the meaning of that Part) brought after

that date.”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 28:

In page 16, line 4, to delete “34I.” and substitute “34J.”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 29:

In page 16, line 15, to delete “34J. (1) Without prejudice to the Mediation Act 2017, a” and substitute “34K. (1) A”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 30:

In page 17, line 6, to delete “34K.” and substitute “34L.”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 31:

In page 17, line 27, to delete “34L.” and substitute “34M.”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 32:

In page 18, line 13, to delete “34M.” and substitute “34N.”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 33:

In page 18, line 14, to delete “34L(1)(a)” and substitute “34M(1)(a)”.

John McGuinness (Carlow-Kilkenny, Fianna Fail)
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Amendments Nos. 34 to 36, inclusive, are related and will be discussed together.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 34:

In page 19, line 33, to delete “intermediate” and substitute “intermediary”.

These amendments make changes to the definitions contained in the proposed section 45 of the Defamation Act 2009 introduced by section 19 of the Bill. Section 45 provides the Circuit Court with jurisdiction to make identification orders. This allows a person who has been subject to defamatory comments by anonymous posters online to seek information identifying those posters. Amendment No. 34 corrects a mistaken reference to an "intermediate" rather than an "intermediary" service provider. Amendment No. 35 adds wording to the existing definition of "information society service" to clarify that although such services only include those provided for remuneration, this remuneration may be received by the service provider either directly from the user of the service or indirectly through advertising or other means. Amendment No. 36 adds a further definition of "recipient of the service", a term used in the existing definition of "intermediary service provider". The definitions of "information society service" and "intermediary service provider" align with those contained in EU law instruments, most notably the Digital Services Act.

When looking at the amendments we have just discussed, particularly those dealing with section 45, these really take into account the fact that we are going to see an opportunity here for people being defamed online to bring applications before the Circuit Court to secure identification orders. We have been talking here about defamation in the context of defamation taking place in what is the traditional format, where the media - a newspaper or broadcaster - publishes something false about an individual. Fortunately, that happens very infrequently. The vast majority of defamation that takes place now is online, where anonymous people publish to a large number of individuals defamatory material about an identifiable person. In most instances, it is extremely hard for the person defamed to get any remedy because it is not possible to identify who the publisher is and it is difficult in the context of trying to hold social media companies liable for it. The real benefit of this legislation is that we now have a statutory mechanism provided in the legislation in section 45 for the purpose of enabling somebody to go to the Circuit Court and to apply for an identification order that will compel a social media company to tell them the identity of the account holder who has published the defamatory material.

Deputy Carthy spoke earlier about members of his party being defamed. No political party in this House - and it certainly does apply to Fianna Fáil - has not been defamed. I think it is fair to say, however, that politicians should have a thick skin when it comes to publications put out there in the traditional media. We should perhaps also have a thick skin when it comes to false and defamatory comments made about us online, although that is a matter for each individual politician. I refer to a situation, however, where egregious defamatory statements are made about individuals, falsely accusing them of the most heinous and serious offences.

That does merit a statutory response. The constitutional right to one's good name means something. Sometimes I am concerned that the debate on defamation focuses very much on the right to freedom of expression and the organised campaign that can be put forward by the media, as it is entitled to do. However, as legislators, we must take into the account the individual - the citizen - who does not have an organised group campaigning to ensure his or her right to his or her good name is protected and defended. That is why it is so important that provisions like this are included and that is why it is so important that the Defamation Act respects the balance between conflicting rights: the right of an individual to his or her good name, and the right of an individual or corporate entity to freedom of expression. Our job in the Oireachtas is to try to balance those rights. I suspect that the most egregious development in the world of defamation in the past 100 years is the development of social media and the ease with which individuals can make false defamatory statements about persons who might not even be well known - private individuals who have no recourse. I hope this statutory provision will give them some recourse.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I also hope these provisions address the issues the Minister outlined. I do not dispute anything he said, including the argument that politicians should have thick skins. I endeavour to live up to those standards daily. I am a passionate advocate of freedom of speech. I believe it is essential in a functioning democracy that people can feel to say things - even nasty things or critical things - about politicians or others in power, particularly those in power.

There is a distinction between free speech and anonymous speech whereby somebody can hide behind a computer and not have the guts to reveal himself or herself when he or she publishes what can be abhorrent material about a person or entity with no consequences. In that vein, I mean it when I say that I hope that the provisions outlined by the Minister do their stated job. It is a high bar for a lot of people who might find themselves in that position. As the Minister said, there has been an evolution of defamatory comment. Due to the multitudes of mediums by which people can publish assertions, it is probably people who do not have access to a solicitor or recourse to or understanding of the law who are likely to become victims in all of this. I hope that we will reach a point where not only will this mechanism work but the fact that the mechanism is there will give social media companies the freedom to divulge the information early on when it is requested by people seeking to find out who is behind these anonymous accounts that in many cases are causing significant societal destruction in terms of the malicious agendas they pursue. This is notwithstanding everything I have said about the right to free speech. I believe in it passionately but if somebody wants freedom of speech, he or she should also avail of the freedom to reveal himself or herself and have the guts to stand over what it is he or she wants to say.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 35:

In page 20, line 7, after “remuneration,” to insert “whether such remuneration is provided directly by a recipient of services or indirectly through advertising or other means,”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 36:

In page 20, between lines 32 and 33, to insert the following: “ ‘recipient of the service’, in relation to an intermediary service, means any natural or legal person who uses an intermediary service, in particular for the purposes of seeking information or making it accessible;”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 37:

In page 21, after line 19, to insert the following: “(2) The amendments effected by subsection (1)* shall apply only to causes of action accruing on or after the date of the coming into operation of this section.”.