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

I thank the Leader of the Seanad for listing this business this afternoon.

As Senators will be aware, I am here to present the Defamation (Amendment) Bill to Seanad Éireann. Those aware of the statutory provisions in respect of defamation will know that when it comes to any legislation governing defamation, we are trying to balance two conflicting constitutional rights. On one hand, we are trying to take into account the right of the individual to his or her good name; and on the other, we are trying to take into account an individual's right to freedom of expression.

In many instances, defamation laws focus on press freedom in Ireland but, as Members of this House will be aware, they go much broader than that. At present, I would have thought the biggest issue in terms of defamation in Ireland is the extent to which people are defamed online by anonymous, unknown individuals. I am pleased to announce this legislation includes a provision which provides a statutory mechanism for somebody to go to the Circuit Court and get an order for the service provider to identify the person who has been defaming them.

Ireland has a very strong media. It is a very free media. I was pleased to see that Ireland is right at the top of the World Press Freedom Index 2025, at number 7 of the 180 nations listed. That shows the extent to which media freedom operates in Ireland. It is something we sometimes do not take account of and recognise. Long may that freedom continue.

The Bill provides for a range of reforms to address the concerns raised by many stakeholders during the review of the Defamation Act 2009. The 2009 Act was noteworthy and was generated by Senator McDowell when he was in the office I now occupy. The main purposes of the Bill before the Seanad today are to tackle disproportionate awards; to support more consistent and predictable redress in defamation cases; to reduce legal costs and delays; to support easier access to justice for those whose reputations are unjustly attacked and those who are subject to unfounded defamation proceedings; and to provide enhanced protection for responsible public interest journalism.

One of the aspects of the Bill that got considerable attention in the Lower House was the abolition of juries. This aspect of the Bill was in the legislation when it was introduced to the Dáil by my predecessor, the Minister, Deputy McEntee. It was an essential part of the programme for Government that there would be reform of defamation laws in accordance with what the previous Government has done. I think it is the case that if juries in the High Court are abolished, it will and should reduce the incidence of excessive or disproportionate awards. It should reduce costs and delays. It is inevitably the case that when it comes to the hearing of a case with a jury, it will take longer than a case heard by a judge alone. It will also have an impact on the length of hearings.

Once judgments by the High Court are made in respect of defamation awards, there will be an understanding as to the basis upon which the courts are awarding awards and the constituent make-up of them. It is noteworthy that a defamation action in the Circuit Court does not have a jury. In most areas of civil law, we assign responsibility to the Judiciary sitting on its own to determine the actions and outcomes of cases.

I will take Senators through some aspects of the legislation that may be of some interest to them. Section 6 will introduce a “serious harm” test for corporate bodies. It provides that a statement about a body corporate is not defamatory unless it has caused, or is likely to cause, serious harm to its reputation.

The Bill will introduce new statutory defences to defamation. These include a provision in section 8 for a new statutory provision in so-called retail defamation cases. This responds to serious concerns expressed by retailers and the hospitality sector, particularly small and medium businesses, about the increase in unfounded claims of defamation made against them. These claims can arise when individuals are asked to produce proof of payment or told that a particular form of payment cannot be accepted. The defence does not apply in circumstances where a retailer does not act in good faith or publishes the statement disproportionately. This might occur, for example, if the statement is shouted across a crowded venue when it could have been raised discreetly. This will provide a powerful new defence for retailers. I hope they will avail of it. Too many times, I have listened to retailers say they have decided to settle an unmeritorious claim by paying more than €5,000 or €10,000 just to make the claim go away. They have been advised by their lawyers or by individuals in insurance companies that they are better off not taking the risk of proceeding, which simply encourages unmeritorious actions. I hope, after the Oireachtas goes to the trouble of putting this really powerful statutory defence into the new defamation Act, that it will be used by retailers. I also point out that this provision was introduced by my predecessor, the Minister, Deputy McEntee, in August 2024. I have made no change to it whatsoever. It is exactly the same as when it was introduced. The suggestion that I have, in some respect, tried to change it is completely false.

Provision is also made, in section 13, for a new defence for broadcasters, where a defamatory statement is made during a live broadcast, whether by an invited participant, or unexpectedly by a bystander. That is appropriate.

Members of the House will also be aware that I am introducing a new provision that sets out what is referred to as the section 26 defence of fair and reasonable publication on a matter of public interest. The feedback in respect of the defence that has been there since 1 January 2010 is that it is a very complex defence that publishers and defendants find difficult to avail of. The new legislative and statutory provision this Bill will put in place is much simpler and will assist the use of that defence. I have simplified it. The new defence now requires a defendant to demonstrate that the statement made was in the public interest, that they reasonably believed publishing the statement was in the public interest and that the statement was published in good faith. That is a benefit and an advantage to the legislation.

The Bill also introduces a number of provisions to support early settlement of proceedings. For example, it provides that the court may encourage the parties to avail of alternative dispute resolution, ADR, in certain cases, amend deadlines and make orders to facilitate the effective use of ADR.

The Bill also makes it easier for those who have been subjected to online defamation to seek to identify a person who is defaming them anonymously online. One of the issues with online defamation is that material can be posted anonymously or under a false name, making it hard to identify the publisher of a defamatory statement. Section 22 of the Bill therefore introduces a new section 45 into the 2009 Act, which provides for a statutory jurisdiction for the Circuit Court to grant identification orders where a defamatory statement has been published online by an anonymous poster.At present, these orders can only be obtained in the High Court, where people have to go to get what is referred to as a Norwich Pharmacal order. The statutory provision that I am introducing will make it much easier for individuals who have been defamed online to go to the service provider and to find out the identity of the defamer.

The Bill delivers on the programme for Government commitment to introduce safeguards against strategic lawsuits against public participation, SLAPPs, to prevent the misuse of defamation laws to stifle public interest reporting. I know there has been some concern that not all the detail of the SLAPP directive has been transposed here. It was appropriate that we just transpose the defamation aspect of the SLAPP directive into the Defamation (Amendment) Bill. The other aspects of the SLAPP directive will be transposed in other legislation or through secondary legislation, if possible. We know the impact that SLAPPs can have. Fortunately, they do not exist that much in Ireland. I have not seen examples of SLAPPs. I would be interested to hear if other Members have. Of course, it is all very subjective. One person's SLAPP is another person's constitutional right to respect his or her good name. The protective measures against SLAPPs are contained in section 19 of the Bill. It inserts a new Part 4A into the Act. The sections to be included in the new Part 4A define SLAPP proceedings along with several key concepts associated with them. Senators will have an opportunity to view that.

This is significant and comprehensive legislation that seeks to strike a balance between protecting reputations and safeguarding freedom of speech and public participation. It represents a robust, fair and proportionate response to the challenges of a rapidly evolving and increasingly complex media landscape. I thank Senators for affording the time. I will listen carefully to their contributions. I apologise that I will not be here to make the closing remarks, because I have to attend another meeting that I think is commencing at 2.30 p.m. or maybe a bit later, so I will have to leave before the end of their contributions. I ask Senators to give careful consideration to the Bill.