Brian Lenihan Jnr (Dublin West, Fianna Fail)

——which would address the matter he raised, namely, the requirement of proof of special damage in the event of a corporate plaintiff. There was some debate on this section on Committee Stage and I undertook to have another look at it. The Attorney General indicates that recent case law in the United Kingdom has made it clear there is nothing wrong in legal principle in having a cause of action for a body corporate to sue for defamation whether it incurred, or is likely to incur, financial loss. Incidentally, on the technical question of whether one requires a definition of a body corporate, the parliamentary counsel states that the Interpretation Act 2005 applies to that.

Senators have been very critical of this provision but an individual plaintiff who is a natural human being does not have to prove loss in the case of a defamation and libel as distinct from slander. Section 11 was recommended by the legal advisory group but it did not address the merits of the proposal. The Law Reform Commission did so and stated that under existing law, trading and non-trading corporations appear to be capable of suing in defamation in respect of defamatory allegations concerning their business capacity and more general allegations relating to trading and the treatment of employees or their sponsorship of public events.

For us to accede to Senator Norris's amendment would not simply be to refuse to confer something new on a body corporate but it would be to withdraw a right which bodies corporate have in existing law. Senator Norris essentially said a company should not be allowed to sue. It is true that a libel action dies with the natural human being whereas a company can have a perpetual existence. No doubt the lapse of time would qualify any amount of damage for which they could sue for past excesses.

On the point Senator Regan raised of limiting actions by bodies corporate to claims for financial loss, the Law Reform Commission took the view that there can be harm caused by a defamatory statement which would be almost impossible to prove. The financial loss caused to a defamed company could be as a result of individuals or bodies deciding not to trade or associate themselves with it, which is a notoriously difficult type of loss to prove.

The provenance of this provision is a recommendation that there be no change in the existing law but that for the avoidance of doubt there should be a statutory provision confirming that all corporate bodies have a cause of action in defamation irrespective of whether financial loss is consequent upon the publication.

There is no authority on that point in this jurisdiction but it seems that if one recognises the body corporate as an entity which at least has a reputation — part of Senator Norris' argument seemed to proceed from the assumption that many bodies corporate do not have a reputation worth protecting — one has to assume that they are entitled to sue on it.