Linda Nelson Murray (Fine Gael)

I am speaking on behalf of small businesses. It is my thing. From speaking to retailers and in particular to Retail Excellence, which is the body that nominated me for election to the Seanad, defamation is of huge concern. The Minister was gracious to me a few weeks ago when he gave me a few minutes of his time to talk to him about that. I thank him for that. I appreciate it.

Retailers need to be able to ask questions if they suspect someone of stealing. I also appreciate that shoppers need to be protected, but as we have seen, in Ireland, with 5.3 million people living in the country, we have the exact same number of defamation cases as the entire UK. Someone is taking advantage of the situation and I hope this can help to sort that out. People are obviously taking an opportunity in this. In fact, if we were to work out the scale of defamation cases in Ireland by their cost, it adds up to €70 million in legal costs. Ireland continues to record the highest per capita rate of defamation litigation in the common law world, at 140% of the volume in England and Wales. Relative to our population, as I said, this means that defamation litigation is 19 times more common in Ireland than in England and Wales. Let us look at the Adams v. BBC case. The plaintiff received approximately €100,000 and the legal costs were €3 million. That is very concerning.

Retailers settling cases was mentioned and the Minister and I spoke about this in the past as well. From the point of view of small businesses, the first thing that happens when they know they are potentially being sued is that a letter comes in from a solicitor. The owner's heart skips ten beats and they go into a sweat while their brains try to think about what the situation was, when it happened, what date it was, who was on duty and where the time sheets and CCTV are. Their bodies go into what is almost a spasm of fear. The first thing that happens when that letter comes in is that the insurance excess kicks in. The excess in small businesses can be €2,500, €5,000 or €10,000. That is what happens. When businesses deal with their insurance companies, the small print says the insurance company will work on the case on behalf of the business and it will decide whether to bring the case to court, but often, as we know, cases, including defamation cases, get settled. People settle them because they fear the high cost of going to court. I wish there was a pot of money for businesses to make an example of bringing defamation cases further and taking a stand, but unfortunately it is not possible.

Much of what is included in the Bill is commendable - fair play to the Minister - but there are concerns from business organisations, as I mentioned. The harm test was mentioned by my colleague, Senator McDowell - I was about say Minister McDowell. In various legal and ethical contexts, it assesses whether a specific action could cause harm or injury. It is a crucial element in determining whether a record should be withheld, a referral to a safeguarding body is necessary or an action should be taken. However, the people who bring the cases can sue for defamation, but not the other way around. That needs to be included, as my two colleagues have said.

Defamation cases often involve the serious harm test to determine whether the defamatory statement caused substantial damage to the individual's reputation. The seriousness of the harm is a key factor in determining whether a defamation claim can proceed. Should we introduce a statutory harm test in the definition section, to mirror the one in the UK where a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant? Perhaps the transient retail defamation test promised in the draft general scheme could be reintroduced. There is a harm test for the SME, but not for the person alleging defamation.

There is no cap on general damages, which is a bit scary. Perhaps they could be capped at approximately €75,000, allowing special damages to exceed the cap where demonstrable harm exists, in line with European standards and existing Irish precedents. We need to end the abuse of the appeals process. Again, I spoke about the sweat business owners feel, but defendants who succeed in court also face appeals to higher courts, which causes more stress and forces them to settle on actual grounds, even when they are victorious. The recommendation is to restrict rights of appeal in defamation cases.

If we are to proceed with this Bill today - I might be wrong in saying this; I have not checked it with anyone - can we allow for a review in 12 months' time to see how it affects businesses? The objective from my side, which is the business side, is that businesses should feel they can tackle people and not worry about defamation. As I mentioned, there were 3,500 defamation cases in Ireland and 3,500 in the whole of the UK, so it is definitely something we need to sort out. I wonder whether we should be looking at running the SME test on this to see what impact that would have on businesses.

That is my bit. Otherwise, we have made great strides. There has been a lot of improvement and I welcome that we are doing this. I thank the Minister for his time.