Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

I commend the Senators on bringing forward this Bill, which the Government does not intend to oppose. I agree with the points made regarding the beauty and fragility of free speech and democracy. Some weeks ago I was stuck in traffic outside the Romanian Embassy when I saw long queues of Romanians living in Ireland waiting to vote in the elections in their home country. It was to see people willing to queue for six or seven hours for the chance to cast their ballot. We in this county can sometimes be complacent regarding the nature of free speech and our capacity to engage in the democratic process.
Senator Barrett referred to the referendum on the abolition of the Seanad. I certainly have changed my position since that referendum and am more appreciative of the richness of debate in this House and what it brings to the business of the Oireachtas. Senator Bacik will be delighted to hear it.
This short Bill seeks to amend the Defamation Act 2009 on the relatively narrow issue of the bringing of defamation proceedings by corporate bodies under section 12 of the Act. The Minister, Deputy Frances Fitzgerald, considers that the Bill as drafted is deficient and would require extensive further examination and amendment. On a preliminary examination, we have a number of substantial concerns which I will present in due course.
The present legal position is that the Defamation Act provides, at section 12, that:

The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.

This provision sought to recognise the full commercial and non-commercial importance of a body corporate's reputation and to protect that reputation against defamatory statements, even in situations in which it might be difficult to prove or to measure resulting financial loss. For example, it might be difficult if a company had recently started up or just entered a new market, or if the main impact of the defamatory publication was to make it difficult to recruit or retain staff or to cause distrust in relations with core partners such as banks, customers, or trade unions. Under section 12, a body corporate which is not involved in commerce is similarly entitled to protect its reputation against defamatory statements, regardless of whether it operates in the public or the private sector, even if it is not suffering identifiable financial loss. The 2009 Act also provides for a number of statutory defences to a defamation action - the defences of truth, absolute or qualified privilege, honest opinion and fair and reasonable publication on a matter of public interest.
Having set out the current position, I would like to comment on the changes proposed by the Bill before the House. This legislation would amend just three sections of the Defamation Act 2009: section 12, which provides that bodies corporate can bring defamation proceedings; section 13, which allows for the Supreme Court, on appeal, to revise the amount of damages awarded for defamation in the High Court by a jury; and section 31, which lists various factors the court must take into account when deciding on an award of damages for defamation. All of the changes proposed in this Bill relate to the bringing of defamation proceedings by bodies corporate under section 12 of the 2009 Act. The central change in the Bill is the proposed new subsection 12(2), which would radically limit the damages that could be awarded to specified types of corporate bodies, in a defamation case, to a nominal €1. As the proposed changes to sections 13 and 31 are ancillary in nature, I will concentrate my remarks on the proposed changes to section 12.
As I have indicated, the Minister, Deputy Fitzgerald, considers that the Bill as drafted is deficient and would require extensive further examination and amendment. I will set out some of her reservations, which are based on a preliminary examination of this legislation. The Bill's central proposal is to impose a limit of €1 on the damages that could be awarded in a defamation case to any of the very wide range of bodies corporate listed in the proposed section 12(3). The text provides that a court may not even consider any higher award, irrespective of the nature and extent of the damage actually suffered. This radical proposed intervention would require very careful scrutiny, including with regard to its constitutionality. The Bill would impose this new limit on any body which falls into any of the extraordinarily broad and diverse list of categories set out in the proposed section 12(3). The Bill defines any body covered by this list as a "public body". We have serious concerns about the excessively broad scope of the list. I will explain those concerns briefly. The stated objective of the Bill is to limit the damages that public bodies can be awarded in defamation cases, apparently with a view to discouraging them from bringing defamation proceedings. The list proposed in section 12(3) seems to fundamentally confuse different sorts of public and corporate bodies. As a result, it includes in the Bill many bodies that do not seem relevant to the Bill's objectives.
We have to bear in mind that the bodies we know as public bodies are a diverse mix, including bodies incorporated under the Companies Acts, under other statutes, or in some cases under charter. They include bodies which have corporate identity and entities which do not. Some of these bodies have commercial purposes or activities, while others are non-commercial. Many of our commercial State-sponsored bodies operate and compete in markets alongside private company competitors. I will give some non-exhaustive examples. The list includes bodies which are not corporate, which means they were never eligible to bring defamation proceedings under section 12 of the 2009 Act and are therefore not relevant to the purpose of this Bill. For example, the Departments of State, listed in the proposed section 12(3)(a) are not bodies corporate. Similarly, it is not clear that all of the diverse public health bodies listed in the proposed section 12(3)(h) would be bodies corporate.
The list also includes bodies which are not public. That is a problem because a body that is included in the list is defined by section 12(2) of the Bill as a "public body". For example, the entities established by charter that are included in the proposed sections 12(3)(b) and 12(3)(g) are not necessarily public bodies. The list also includes undefined bodies. Half of the eight categories in the list - those proposed in sections 12(3)(b), 12(3)(d), 12(3)(f) and 12(3)(g) - refer to "entities". As this term has no legal definition, it may be difficult to decide what bodies fall into these categories. The list also includes bodies which are public but commercial. The proposed sections 12(3)(b),12(3)(c), 12(3)(d), 12(3)(e) and 12(3)(f) appear to cover a wide range of State-sponsored bodies with commercial activities. This means that under the Bill, a commercial State-sponsored body that suffers financial losses due to a defamatory publication could not recover more than nominal damages, while one of its competitors operating in the same market would not be subject to any such limit.
The list also includes charter bodies, which may be corporate and public but not governmental. The proposed section 12(3)(b) includes in the list any body which is "an entity established by charter". This group seems to include bodies established by charter such as Trinity College, the Incorporated Law Society and the Royal College of Surgeons. It is not clear whether the Bill intends to impose a €1 limit on the damages that can be awarded in a defamation claim by any of these or similar bodies. Section 13 of the Bill, which refers to appeals in defamation cases, identifies the Supreme Court as the normal appellate court from the High Court. Since this Bill was published, significant changes have been made to the Supreme Court's appellate jurisdiction. I refer to the coming into effect on 28 October 2014 of the amendments provided for in the Thirty-third Amendment of the Constitution, and the establishment of the Court of Appeal on 28 October 2014 under that amendment. In addition, the wording of the proposed section 13(1)(b), unlike the proposed section 13(1)(a), does not seem to indicate what the appellate court may substitute for an award of nominal damages made by the High Court under the Bill.
Furthermore, the Bill proposes the substantial approach of imposing a far-reaching limit to redress in any defamation action taken by a broad range of corporate bodies, in pursuit of an objective which appears quite disproportionate. The Bill's stated intention is to prevent public bodies from using the resources of the State to issue defamation proceedings to influence comment by the press and public. In practice, defamation proceedings by public bodies are very rare. It can hardly be argued that the press or the public in Ireland are reluctant to enter into robust criticism and debate regarding the actions and policies of public bodies. This Bill seems at best a legislative sledgehammer to crack a very small nut. The Defamation Act, which is just five years old and was debated in some detail in both Houses in 2009, represents a recent and well-thought-out balance between the right to freedom of expression and the right to protection of good name and reputation.
I have highlighted non-exhaustively some of the numerous questions that have arisen in our preliminary examination of the Defamation (Amendment) Bill 2014. More time is needed to consider the Bill in detail and further assess its potential wide-ranging implications. The Office of the Attorney General also needs to be consulted, as do the Departments and State agencies potentially involved. Section 5 of the 2009 Act already provides for a statutory review of the Act's operation, to be commenced within five years after the passing of the Act and to be completed within a year. Preparations for this statutory review have already begun within the Department of Justice and Equality. Subject to the reservations I have mentioned, the Minister considers that there may be a case in principle for reviewing the specific question of whether and to what extent a public body which is a corporate body should be entitled to bring a defamation action under section 12 of the 2009 Act, and for assessing to what extent such an action remains relevant and appropriate. Such a review will need to take careful account of the many different types of public bodies which are corporate bodies. In particular, the issue being raised in this Bill is just one piece of a large and complex jigsaw. It would be unwise to treat it in isolation, particularly outside the context of the imminent statutory review of the 2009 Act. That review offers a valuable opportunity for consultation and discussion with stakeholders on this question and on the wider context of the Defamation Act overall, and should be fully used. The Government will not oppose the motion before the House today. In view of the reservations I have set out, however, further examination and substantial amendment of the Bill will be required and proposed by the Government on Committee Stage.