Michael McDowell (Independent)

I welcome the Minister and thank him for his attendance. There are many features of this Bill with which I am in complete agreement and there are others on which I am mainly in agreement, subject to some criticisms I might have to make.

One of the principal functions of this legislation, as introduced by the then Minister, Deputy McEntee, was the abolition of juries in the High Court. That is a matter that is strongly supported by the media on the basis that defamation trials in the High Court are apparently very complex and the allegation is made that juries are unpredictable and sometimes overly generous when they award compensation. Those are legitimate points to make but I have one thing to say in respect of juries. Those people in the media who want to get rid of all juries in all defamation actions may find that, in five or ten years' time, they will say that Judge McDowell - though I am over the age, so it is not going to happen - has for the third time held against RTÉ, The Irish Times or whatever, that he has for the fourth time disbelieved particular kinds of witnesses, and that it is the fifth time he has come to a controversial view and disbelieved a political figure. They will ask who appointed him in the first place. All of those questions will be asked. The funny thing about juries is that nobody, or very few people, really asks who those people are and why they came to that view.

The fact is that juries' verdicts are generally accepted but judges' verdicts are going to have to be reasoned. They will have to say when Mr. or Mrs. So-and-so gave evidence, they disbelieved them. Judges will have to say that in certain kinds of cases. They might have to say that they came to the conclusion that a particular person was lying to them. That happens quite frequently in ordinary litigation. When it comes to defamation, particularly serious defamation, we are not getting rid of the High Court's jurisdiction to deal with defamation, but the Circuit Court, as the Minister said, is entitled to deal with defamation where the claim for damages is limited. What we are dealing with here is serious defamation and the Minister is now putting into law the proposition that these matters will always be and can only be decided by a judge sitting alone. I do not think that is going to turn out to be a happy change in our law. I agree with the Irish Council for Civil Liberties, which suggested that a compromise was available on this, which is to say that cases would be determined in the High Court by a judge alone unless a party convinced the court that it would be more appropriate for a jury to deal with it.

We do not allow judges alone to determine serious cases of, for example, Garda assaults on individuals, or indeed assaults generally between individuals, because there is a view, which I subscribe to, that judges tend to become case-weary and in many cases judges tend to take the view that, for example, gardaí or State agencies are to be upheld against unlikely looking individual plaintiffs. I prefer a jury to decide whether gardaí used excessive force, assaulted somebody or are telling the truth about the circumstances.I believe strongly juries are the best way to determine those kinds of matters because again, unlike cases where juries give a verdict, if you get to a Garda assault case you are going to have to say the plaintiff was lying about what happened or gardaí were lying about what happened, and there will be consequences for individual gardaí. By contrast, if a jury hands down a verdict of X against the State it does not point the finger at an individual witness but simply says that person was assaulted, or whatever it may be. The consequences of having reasoned judicial determinations will have to be worked out very carefully. I support the ICCL position, which is that it be the norm that it goes to a judge alone, but let us always preserve the right, especially for the Judiciary, to say this case is so controversial it would be better if 12 people sworn made the decision rather than one individual who is going to have to disbelieve one person and believe another and give reasons they did so. That is an important point. I am not against the notion that there should be judge-only determination, as in the Circuit Court, but I am against the idea that there is no circumstance in which the Judiciary and the public interest would not be served by a jury trial and that is why I support the ICCL’s position on this matter.

On section 26, that particular provision was brought in by the Bill I brought before this House in December 2006, which is 19 years ago. Time flies. Its genesis was to deal with the Albert Reynolds decision of the High Court in London about fair and reasonable publication. I said in the course of the debate on that Bill that I did not claim to be infallible, though Senator David Norris queried whether I was or was not. The Minister is right to simplify that section. It is too much of a maze at this stage. It is too difficult to implement and not serving a useful purpose. The serious harm test should apply to all defamation in the Circuit Court and High Court. This business of the wrong photograph being used in a newspaper, the wrong name being given or whatever and therefore somebody feels they are entitled to a minor judicial aware of damages should not be the norm. Plaintiffs should be obligated to go to court and establish that this is a serious imputation on their character, regardless of whether they are corporate. Small things like a store detective asking you whether you paid for something are not serious, unless there are some extraordinary circumstances. The idea that a person can go to court and claim damages and a shopkeeper, business owner, hotelier or whoever has to defend it and incur the costs involved is wrong. The Minister should accept that the serious harm clause applies not simply to companies, as this Bill proposes, but to everybody. Nobody goes to court unless they establish serious consequences arising out of the alleged defamation.

As a technical point on the live broadcast defence, there is no actual definition of “live”, but in some cases broadcasters have a delay and I would want to be sure that delay mechanism does not deprive something of the status of a live broadcast.

I also strongly support the right of people to pursue anonymous posters on social media. It is cowardly. I believe fundamentally in free speech, but if you are going to speak freely and publish it you should be willing to stand over what you say. There has been a coarsening in society and a willingness to damage other people and defame them because of the difficulty of obtaining Norwich Pharmacal orders and of persuading social media service providers to identify the people whose views they are relaying.

With those few words, I welcome most of the Bill. I stand by the reasonable view taken by the ICCL that there should be, in certain circumstances, the right for the Judiciary to order a jury trial where it is in the interests of justice that this should be done and in the interests of the Judiciary that it should be done. You can have all the arguments you like about the amount of damages that should arise from a jury trial in such circumstances, but it is a mistake to abolish it in its entirety.