Eugene Regan (Fine Gael)

My intention in tabling this amendment was not to over-rule the existing common law where a company can sue for defamation but whether it must prove special damage. In other words, the penultimate clause is whether it has incurred, or is likely to incur, financial loss as a result of the publication of that statement. That is where the change lies. The Minister has relied on a decision of the House of Lords to justify another innovation in this Bill, and I refer to the Jameel v. The Wall Street Journal case. I wish to quote two of the Lords in this case. Lord Hoffmann, in paragraph 91, states:

In the case of an individual, his reputation is a part of his personality, the "immortal part" of himself and it is right that he should be entitled to vindicate his reputation and receive compensation for a slur upon it without proof of financial loss. But a commercial company has no soul and its reputation is no more than a commercial asset, something attached to its trading name which brings in customers. I see no reason why the rule which requires proof of damage to commercial assets in other torts, such as malicious falsehood, should not also apply to defamation.

In the United Kingdom, one does not have to prove special damage. Baroness Hale of Richmond stated:

It seems, therefore, that while the retention of the rule that a company does not have to show that it has in fact been harmed in any way may be within our margin of appreciation, we should scrutinise its impact with some care to see whether it may have a disproportionately chilling effect upon freedom of speech.

In paragraph 155, she also pointed out that:

Lest it be thought that these are maverick academic views, it should be noted that amongst the recommendations of the Report of the [Faulks] Committee on Defamation (1975, Cmnd 5909, para 342) was the proposal that:

"(a) No action in defamation should lie at the suit of any trading corporation unless such corporation can establish either — (i) that it has suffered special damage, or (ii) that the words were likely to cause it pecuniary damage.....

The Faulks Committee were influenced by Mr Weir's views [etc.].....

"A company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money. The injury need not necessarily be confined to loss of income. Its goodwill may be injured."

The need to prove financial loss, or the likelihood of financial loss, should be a requirement for a corporation to sue for defamation. I do not believe we should change the law in that regard.