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

Gabhaim buíochas le gach Seanadóir as a gcuid óráidí spéisiúla. I thank the Senators for their contributions. I thank Senator Gallagher for indicating his and Fianna Fáil's support for the legislation before the House. I then listened very carefully to Senator McDowell, who has great experience in this area, having been the Minister that steered through the Defamation Bill that became the 2009 Act. I assure Senator McDowell that I would never accuse him of having any conflict of interest in respect of how he steered the legislation through the Houses at that time, notwithstanding the fact that he was previously and subsequently a senior counsel.

I also note what Senator McDowell said about how the media may come to regret the change to a judge sitting alone. It is certainly the case that there will be changes as a result of the fact that defamation cases will now be heard by judges sitting alone. It will mean that we will now generate and develop a body of jurisprudence through written reported judgments that will refer to defamation cases and how they have been decided. At present, one will not find any reported judgments about first instance defamation cases because when they are heard in the High Court, they are determined by a jury, an award is given and there is no written outcome from the court. The only time there is a written judgment is if a case is appealed and the Court of Appeal or Supreme Court gives its judgment in respect of it. Therefore, there will be considerably more defamation law and jurisprudence in the area. The Senator is correct that it will make the issue more litigious.

I also note what Senator McDowell said about section 26. It was introduced to give statutory effect to the Reynolds decision. That has happened but it needs to be simplified.

Senator Kelleher mentioned the issue about the serious harm test, which is a legitimate point that was raised by Senators Kelleher and McDowell. My concern about having a serious harm test for every claimant who brings a defamation case is that there will inevitably be interlocutory hearings to determine whether the case is a serious harm case. It will lengthen proceedings. If somebody issues proceedings claiming they have been defamed, and if the defendant puts in a defence stating that it does not meet the serious harm test, there has to be a hearing about it. That will be a hearing in advance of the full hearing. They have this in England and it has made it a more complicated area. There are some advantages in defamation laws at present in this country in that there is a resolution by the hearing of it in front of a jury, or in front of a judge if it is in the Circuit Court, and there is a quick determination. I do not want to make it so complicated that we have the serious harm test hearing, then we have appeal of that, it goes back, and then we have the full hearing. I note what was said but I would be concerned about it.

Senator Nelson Murray referred to how defamation is a huge concern for retailers. I am aware of that. A number of colleagues have raised that issue as well. However, the new statutory provision has been put in to meet the concern of retailers. It is in response, in fairness to many Members in this House and the Lower House, to the campaign that is being waged to ensure we can change our law. It will mean that if a retailer in a shop questions somebody as to whether that person has paid for something, or asks somebody whether they can check something, that will be protected. If a case is taken against a retailer, I would urge retailers to defend the claim. What encourages unmeritorious claims, as I said before, is when people decide, “Ah sure, we will just pay out a small sum of money”. I note what the Senator stated about the excess but there is a mechanism whereby the client in an insurance-client relationship can put pressure on the insurer to fight the claim. Insurers should be fighting claims as well.

I think it was mentioned by the Senator as well that the general scheme changed, and the transient retail defamation case was addressed in the general scheme. That was before the Bill was introduced in August of last year. I had nothing to do with that. I was not in government at the time. I got a Bill that was introduced by my predecessor, the Minister, Deputy McEntee, and approved by the Government. I have made no changes in the scheme since it was introduced.

I note what Senator Ryan said in respect of juries. I listened carefully in the Lower House when Deputy Carthy was making a point about juries. I will deal with the juries point in due course when I respond to Senator Stephenson’s point where she mentioned statements I have made previously.

Senator Stephenson said this is a missed opportunity. She also criticised the fact that the Bill does not transpose other aspects of the SLAPP directive into Irish law. That will be done. Let us remember that this is a defamation Bill. It is appropriate that we just transpose into the defamation Bill those aspects of the SLAPP directive that relate to defamation.

I also heard her talk about the Higgins case. The Higgins case is about setting out what awards of damages in defamation cases should be, regardless of whether it is a judge or a jury making the determination. The important thing about the Higgins case is that it will stand when or if we see the abolition of juries. I have also listened very carefully to what retired judge Mr. Justice Bernard Barton has said in respect of this matter.

Senator Stephenson said that I had previously in the Dáil supported retaining juries in defamation cases. That is correct. I described it as short-sighted. She asked what has changed. What has changed is now I am a member of the Government and I have to abide by and comply with the agreed position of the two parties and Independents that went into government and agreed the programme for Government. When you are in government, or when you are in a political party, as Members of this House will know, you have to compromise. Compromise is an essential part of government.

Senator Noonan also referred to the issue of the SLAPP directive not being fully transposed. I will say the same thing to him: it is a defamation Bill, and I will be bringing forward further legislation to transpose the rest of the SLAPP directive.

Senator Keogan read out what ISME had stated. It is important that we are discussing in this House the issue of the defamation Bill. As I said at the outset, we have to take into account conflicting rights. On one hand, there is the right of the individual to their good name and, on the other, there is the right to freedom of expression. Notwithstanding the background to how any of us get elected into politics, we have to represent what is perceived as being the public good. It is certainly the case that many people believe they have been grievously defamed by people. We do not actually hear too much about those individuals who have been defamed and believe they have to rely on the defamation laws because they are not an organised entity. They are not like ISME or the NUJ. Senator McDowell will be well aware of this. I think of the position of former Sergeant Maurice McCabe, where outrageous allegations were made against him. The only remedy he had in law, outside of the contract of employment dispute he may have had with the Garda, was a defamation claim. People were asking what can be done about this. When people say heinous things that are inaccurate and very damaging about individuals, they certainly should have a remedy. Not always can everybody have a remedy because there are some defences there. I am conscious that Senator Keogan defamed me in her speech. I have no remedy against that, nor would I wish to take it, because I think politicians should have a thick skin. However, one of the great privileges that Senators and Deputies have is the defence of absolute privilege. We can say what we wish here. Of course, there are limits to that as well. It has consequences. The Senator’s allegation that I have a conflict of interest here is not only defamatory; it is incorrect and inaccurate. It has given me good insight into her as a Senator, and I will reflect on that in due course.

I will take on board what Senator Craughwell said. He referred to many parts of the ISME speech and I listened to it very carefully. In respect of the transient retail defamation case, that may have been removed but it has nothing to do with me. We all need to be conscious of the broader public interest, let alone just focusing on representative vested interest groups that come here and ask us to speak on their behalf. It is important that we speak on their behalf but we also must have the broader public interest at large.

I listened carefully to Senator Flatley; sorry, I mean Senator Flaherty. I apologise for confusing him with the famous Irish dancer. I listened carefully to Senator Flaherty. Having the experience of being in the newspaper industry is beneficial here. I can understand why newspapers feel the defamation laws need to be shifted more in order to protect the right to publication. Again, as I said, it is a balancing act. I agree that the new provision in respect of protecting retailers is a strong statutory defence, and I hope it is used.

Senator Joe Conway gave an account of living in Cherryfield Avenue - a very pleasant avenue. I was never aware of Mr. Justice Wine but it sounds like an interesting account of him. He talked about trial by juries. It is important to point out that there is no suggestion of any abolition of juries in the context of criminal prosecutions. In the Circuit Court for a defamation claim, people do not have a jury there. If you want to take a claim, you can take it in the Circuit Court. You can claim damages of up to €75,000. You do not get a jury, but you get a fair hearing from a judge. Senator Fitzpatrick spoke about small retailers and the retail crime form. I am very conscious of the issue and how it affects retailers, and that is why this statutory provision is contained within the Bill.

I thank the Cathaoirleach for listening to me and Members for their contributions, which I will take on board. I will be back on Committee Stage.